R v N (H)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford |
| Judgment Date | 29 March 2011 |
| Neutral Citation | [2011] EWCA Crim 730 |
| Date | 29 March 2011 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201000054 D3 |
[2011] EWCA Crim 730
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HH
Judge Dutton DL in the Crown Court in Chester on 11 and 12th November 2009
Before: Lord Justice Pitchford
Mr Justice Treacy
Hhj Kramer Qc
Case No: 201000054 D3
201000054/D3*6
Mr M D Barlow (instructed by Thompsons—Solictors) for the Appellant
Mr S M Mills (instructed by CPS) for the Respondent
Hearing date: 11 March 2011
Lord Justice Pitchford :
We informed the parties at the hearing of this appeal on 9 March 2011 that we would dismiss the appeal. These are our reasons.
This is an appeal against conviction with the leave of the full court. The identity of the complainants is protected by section 1 Sexual Offences (Amendment) Act 1992. No matter shall be published which might lead to their identification. The title to this judgment will be N(H).
We shall refer to the complainants respectively as S, A and L. S and L are half-sisters. S lived with their mother, whom we shall call D. L lived a short distance away with her grandparents. Having commenced a relationship with D some months before, the appellant moved in with D and S in April 2005. S had a friend, A, who would visit S at their home.
The appellant was charged in an indictment containing 7 counts as follows:
Count 1: Between 1 August 2005 and 28 December 2006, sexually assaulted S, a girl under the age of 13, namely 11 or 12, contrary to section 7 (1) Sexual Offences Act 2003.
Count 2: A further offence as in count 1.
Count 3: A further offence as in count 1.
Count 4: Between 28 May 2007 and 2 June 2007, intentionally touched S, aged 13 years, in a sexual manner, contrary to section 9 (1) Sexual Offences Act 2003.
Count 5: Between 1 April 2008 and 1 May 2008, sexually touched S as in count 4.
Count 6: (Amended at the close of the prosecution case to) Between 1 November 2007 and 30 May 2008, intentionally touched A, aged 14 years, in a sexual manner contrary to section 9 (1) Sexual Offences Act 2003.
Count 7: On 13 March 2008, sexually assaulted L, contrary to section 3 Sexual Offences Act 2003.
Following a trial before His Honour Judge Dutton and jury at Chester Crown Court the appellant was, on 17 November 2009, unanimously convicted upon counts 3 and 5 of the indictment. On the following day, 18 November 2009, the appellant was unanimously convicted upon count 4; he was further convicted upon counts 1 and 2 by a majority of 10:2, and convicted upon count 6 by a majority of 11:1. The jury could not agree upon a verdict in respect of count 7 and they were discharged.
Grounds of appeal
The appellant has leave to advance two grounds of appeal:
(1) The judge failed to give to the jury an explicit warning of the dangers of collusion between the complainants and of contamination of their evidence;
(2) The judge failed to direct the jury as to the significance of inconsistencies in the evidence of the complainants.
The full court gave leave to Mr Barlow to argue ground 2 to the extent that it contributed to his argument upon ground 1. These failures, it is submitted by Mr Barlow, who appeared at the trial and has advanced the appeal before us, deprived the appellant of a fair trial and, accordingly, the verdicts were unsafe. Before we consider the grounds we shall summarise the evidence given at trial.
Evidence at Trial
The evidence was that S enjoyed having her feet massaged and her back rubbed by her Nan. D, her mother, was not keen to massage S's feet. The appellant took her place and on occasions delivered massages to S's feet and back in respect of which no complaint is made. As S explained in her ABE interview, there were, however, occasions when the appellant used the opportunity to touch S in a sexually indecent manner. The first incident (count 1) occurred in 2005 when S was aged 11 or 12. S would visit the bedroom which the appellant shared with her mother to watch her television. She was lying on the bed wearing pyjamas when the appellant came into the room and offered to massage her back. He used cream on her back, feet and legs for about 5 minutes. He moved his hands to her front inside her bra and touched her breasts. He placed his hands inside her knickers and touched her bottom and vagina. The officers established that S was not saying that the appellant inserted his finger into her vagina but that he had touched her labia. S said she felt awkward, "freaked out" and shocked. She did not know what to say. When he finished she got up and walked out of the room. The appellant later behaved towards her as though nothing had happened. She did not tell her mother. Her mother and the appellant appeared to be happy together. S said she did not know what to do.
The second occasion (count 2) took place about 4 months later, again in D's bedroom. The appellant began massaging S's feet with cream. He moved his hands up her legs and touched her bottom. He did not on this occasion touch her vagina. She just lay there. He stopped and she got up.
On the third occasion (count 3) S believed she was in her mother's bedroom lying on her front in a pair of shorts and knickers. The appellant massaged her legs and asked her whether it tickled. She responded that it did. He moved his hands further up her leg and repeated the question. He moved his hands to her front inside her knickers and touched her vagina. He asked whether it was nice. He told her not to tell her mother otherwise she would want a massage as well.
On the fourth occasion (count 4) S, her mother and the appellant were in Poland as guests at their hosts' wedding. S was provided with an upstairs room. In the early morning she came downstairs and lay on the floor in her mother's room on her mother's side of the bed. D had left the room for some purpose. While S was half asleep the appellant lent over the side of the bed and placed his hand beneath S's pyjama top and bra. She rolled on to her front in order to stop him. He then placed his hand inside her knickers and touched her bottom and vagina. She got up and told him never to touch her again. He said nothing and went to the living room. S said that she went into the bathroom and cried. No-body saw her crying. When she came out the appellant was sitting on the sofa looking glum.
Finally, in April 2008 (count 5), S said that her mother had gone upstairs to bed leaving herself and the appellant downstairs watching television. He asked S if she wanted a foot massage. She agreed. He went upstairs and collected some cream. She thought it was hemp cream from the Body Shop. He turned S over on the sofa so she was on her tummy, and removed her trousers. He massaged her legs and then pulled her knickers down. He massaged her bottom and her vagina. While doing this he stopped, left the room and came back with a different cream. S had put her mother's pyjama bottoms on. The appellant resumed after removing her pyjama trousers. S got up and said to him "Don't you dare do that ever again". S walked off crying. She went to her loft room. Her mother heard her and went to ask her what was wrong. S replied "Ask Harry". The appellant came to the landing. D asked the appellant what had happened. He said, "I gave her a massage and I don't think she liked it". Her mother again asked S what was wrong. She replied, "He gave me a massage and went too far". Her mother insisted, "You've got to tell me". S said that she was too upset to say anything more to her mother. On reflection S thought that her mother had not really understood what had happened.
S's mother gave evidence relevant to this incident. She said that S did have a problem with hard skin on her feet. She herself did not enjoy massaging S's feet. She knew that the appellant gave her foot massages. On the latest occasion referred to by S, D recalled going upstairs to her bedroom leaving S and the appellant together. She had understood that the appellant was going to give S a foot massage. She recalled that after about half an hour the appellant came upstairs and then returned downstairs. A few minutes later S came upstairs. She heard noises and went to S's room. She found S sitting on the floor with her arms around her knees, crying. The judge summarised D's evidence as to what happened next as follows:
"I asked her if she was alright, "What's it all about?" She didn't really answer, she mumbled. I tried again. She was wearing my pyjama bottoms by then. They had come from the utility room perhaps or the bedroom but she had not been in to get them. I asked where she had got them from. She said Harry had given them to her. She did not say very much. She said he'd massage her and she pointed to the top of her legs. Harry had said he couldn't massage her if he didn't remove her jeans. I didn't know what was happening. He came upstairs then asking if she was alright. I said, "I don't know what's gone on". He said that he'd massaged her and perhaps he had rubbed her too hard. I told him he should have given an appropriate massage. He said he would never hurt her. It was just a massage, but he was very upset. I was very upset. I don't know what I thought. I know now. I stayed in the loft with S all night because she was so upset. In the morning I got up. He left a note saying sorry that he would never do anything to hurt us as he loved us both. He wanted to talk to me and that was April 2008. Our relationship finished at the beginning of July."
The judge reminded the jury in his summing up that the mother had not mentioned in her witness statement that S had pointed to...
To continue reading
Request your trial
-
AT v The Crown
...He rather struggled to answer. He did, somewhat faintly, suggest that a direction on innocent contamination was called for: he referred us to N(H) [2011] EWCA Crim 730 in that regard. As in that case, we deduce that trial counsel in the present case had in fact not sought such a direction. ......
-
Queen v RD
...[54] In mounting this aspect of the appeal Mr Kelly opened only two cases to us, namely R v Paul Hughes [2008] NICA 17 and N (H) v R [2011] EWCA Crim 730. We have referred to the judge’s charge in the section above and it is accepted by all that the judge referred to the fact that there wer......
-
R v Mohammed Hanif Khan
...in section 101(1)(d) and section 103(1)(a). The statutory framework is explained by Pitchford LJ in giving the judgment of the court in R v N(H) [2011] EWCA Crim 730, in particular at paragraphs 30–32 and 38. That was a case concerning sexual abuse of three girls by one man, the appellant. ......
-
R v Peter Thomas Channell
...110. Section 110 requires a court to give reasons in open court for any ruling it makes under section 107. In support of that he relied upon R v NH [2011] EWCA Crim 730 (particularly at [29]) in support of that proposition. 25 Eloquently put as that submission was, we do not find it at all ......