R v Powell (Michael John)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker |
| Judgment Date | 13 January 2006 |
| Neutral Citation | [2006] EWCA Crim 3 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2004/07134/C1 |
| Date | 13 January 2006 |
[2006] EWCA Crim 3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT HARROW
(Her Hon Judge Tapping)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Scott Baker
Mr Justice Ramsey and
The Recorder of Cardiff
Case No: 2004/07134/C1
Mr David Bentley for the Appellant
Miss L.K. Halsall for the Respondent
This appellant is 43. On 25 November 2004 in the Crown Court at Harrow before Her Honour Judge Tapping and a jury the appellant was convicted of indecent assault. He was sentenced to an extended sentence of 5 years imprisonment comprising a custodial term of 3 years and an extension period of 2 years. He was disqualified from working with children and ordered to register indefinitely with the police.
He appeals by leave of the single judge. On 15 November 2005 we allowed his appeal against conviction. We now give our reasons.
The complainant in this case is a little girl of 3 1/2 and the first question on the appeal is whether she was a competent witness.
The facts of the case are as follows. On 13 February 2004 there was a birthday party. A group of 15 to 20 met at a public house to celebrate it. The group included the appellant and his wife and the complainant's parents.
The complainant and her siblings stayed at home with a babysitter. The complainant was born on 2 August 2000. So she was just 3 1/2 at the time. The trial did not take place until over 9 months later, a point to which we shall return in a moment.
After the pub shut the group went back to the complainant's family home. The complainant's mother had not met the appellant or his wife before that evening. When they arrived back at the house the men congregated around the dining table and the women sat in the living room. As the evening wore on, the women went upstairs and sat on the complainant's mother's bed talking. The appellant came into the room about 4 or 5 times, each time to discuss drinks with his wife. On the first occasion he asked if his wife had a drink. The appellant then went downstairs to look for his wife's drink. He came back up the following time to say that he could not find it. The complainant's mother went back downstairs with her friend, Julie. They had only been sitting there for 3 to 5 minutes when the complainant came and sat on the edge of the sofa. The complainant told her, "That man licked my nunny". This was the family's word for a girl's private parts. The mother asked the complainant which man, and the complainant pointed to the appellant. At that point the appellant's wife came over and said they were leaving as the appellant did not feel well.
The mother asked the complainant where this had happened and she said the kitchen. She said the complainant was confused at first but said that he had stood her on the kitchen worktop, pulled her knickers down, licked her and then pulled her knickers back up. They then went to her bedroom and the complainant tapped the end of her bed. She again said he had put her on there, pulled down her knickers, licked her nunny and then pulled her knickers back up again. The complainant then showed her a one pound coin she was holding and said that the man had given it to her. She then told her husband and the police. She said that when the complainant was examined the following day there were two scratches on the top of each leg that she had not noticed before.
Julie Payne, whose husband's birthday party it was, gave evidence that she had known the appellant and his wife for around three years and the complainant's parents for about a year. She said that she was friendly with both couples. She recalled the appellant flitting around that evening. She said that at one point she heard a loud noise, saw the appellant at the foot of the stairs and the complainant standing on the stairs above him. He asked her if the complainant was allowed to come down or whether she should be in bed. Towards the end of the evening he came in and spoke to his wife saying that he felt unwell. At that point she said they all went downstairs. She said the appellant stood in the hallway whilst his wife gave her and the complainant's mother a kiss goodbye. The complainant approached her mother and told her that she did not like the man and pointed to the appellant. When asked why, she said that he had licked her "nunny". She had seen the complainant playing with a pound coin earlier in the evening and assumed initially that her father had given it to her. Then the complainant told her that the man had given the money to her.
A forensic scientist gave evidence that analysis had been carried out on the complainant's knickers. DNA matching that of the appellant was found on the inside and the outside of the knickers. It was her opinion that the findings did not assist in addressing whether the appellant had licked the complainant or whether she had touched his beard, which was wet with saliva, and then put her hand in her knickers. She said that there was no obvious vomit staining or smell on the knickers, though she said that vomit that consisted mostly of water would not necessarily have any detectable food particles or odour.
In interview the appellant accepted being alone upstairs with the complainant. He said that he was on the landing and picked the child up just after he had been sick in the bathroom. She had touched his beard and then put her hand down her knickers. He put her down and told her off for being naughty. This was the only reason he could think of for her complaint. He said he gave her a one pound coin but that this was motivated by kindness.
The complainant was interviewed and a video recording made but not until 9 weeks later. The Crown applied for this video recording to be admitted in evidence under section 27(1) of the Youth Justice and Criminal Evidence Act 1999. The defence objected but the judge agreed that it should be admitted.
The account in the video recording lacked the detail of the recent complaint to her mother on the night of the incident but did include an allegation of indecent assault by the appellant by licking the complainant's private parts.
The appellant gave evidence on the same lines as his answers in interview. He said that he did not want to associate himself with the conversations at the dining room table and that was why he left the table. He said he came across the complainant in the kitchen. She pointed up at the cupboard by the cooker and said "sweets". He lifted her onto the kitchen worktop where she picked up a container designed as a clown and then he lifted her down again. He took her into the living room and asked her parents if she was allowed sweets. The complainant's father accepted that there were two "clown" containers of sweets but could not recall the appellant asking if the complainant could have any. At some point he gave her a pound coin. He said that this was his common practice with children and that his wife had given one of the children 50 pence earlier that night. The complainant had said, "Whoo, pound". He went upstairs to find his wife and there was a brief conversation about her drink. He went up the second time because he could not find it and the third time because he had been told that the drink had already been brought up. He said that later on that night he was sick in the bathroom. When he came out of the bathroom he saw the complainant on the landing. He crouched down and picked her up to take her downstairs but then decided not to carry her downstairs as he had had too much to drink. Before he put her down, she saw spit on his chin and beard and rubbed it with her right hand and said, "Ooh, sticky". She then wiped her hands down her knickers. It appeared to him that she was rubbing it around her crotch, maybe to clean her hand. He quickly put her down and told her that was naughty and that she was a bad girl. He said he thought it was totally inappropriate for a girl of her age. He told her to come downstairs. He said that what happened next was very strange; she turned around and wiggled her bottom at him. He said it was as if she had been trained. He said he got down the stairs quickly. He was feeling unwell and asked his wife if they could leave. The complainant went to sit with her mother. He said goodbye and left. He later received a threatening telephone call from the complainant's father. Afterwards he rang Peter Payne to find out what had been said.
In cross-examination he said that when he was sick there was no food in it only beer. He said that he had not realised that he still had saliva on his beard after he came out of the bathroom. He said he wiped his face with the back of his hand, but had obviously missed a bit. He said that he saw his saliva on her fingers but that there was no colour to it. He said that he had picked the complainant up in the kitchen as he was not sure what she was pointing at. He agreed that she was dressed only in her knickers, but he said that it did not cross his mind that he should not have done it. He ridiculed the suggestion that he had given the complainant "hush" money to keep quiet about what he had done. He said that he had picked her up on the landing because he did not believe a child of that age should use the stairs on her own. He recalled the conversation he had had with Julie when he asked, "Is she allowed to go up and down stairs"? He said that when he picked her up she did not have the one pound coin in her right hand. He said that when he picked her up he had one hand under her bottom and one hand on her back so that she...
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