R v Simon David Edwards
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE RAFFERTY,JUDGE |
| Judgment Date | 16 November 2011 |
| Neutral Citation | [2011] EWCA Crim 3028 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 201100802/C4 |
| Date | 16 November 2011 |
[2011] EWCA Crim 3028
Lady Justice Rafferty DBE
Mr Justice Macduff
Recorder Of Norwich
(His Honour Judge Peter Jacobs)
(Sitting as a Judge of the CACD)
No: 201100802/C4
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr D Whitehead appeared on behalf of the Appellant
Mr R Bond appeared on behalf of the Crown
On 14th January 2011 in the Crown Court sitting at Wolverhampton, the appellant, 29, was convicted of cruelty to a person under 16 years and on 1st March 2011 sentenced to 3 years' imprisonment with consequential directions. He appeals against conviction by leave of the single judge on ground 1, material irregularity, and renews his application, after refusal, on ground 2, complaining of an impugnable decision on competence. We interpose at this stage that this case attracts reporting restriction, we shall where possible attempt to identify only by initials. If at any stage we mention a name, that does not constitute leave for the name to be published
On Thursday 16th July 2009 C, aged 5, was taken to Russells Hall Hospital complaining of a painful stomach. She had been vomiting throughout the day and her mother, Mrs Davis, was concerned because she had seen traces of blood in the child's vomit.
A scan revealed that her kidneys were in an abnormal position, the tube connecting them split, causing blood to leak into the abdominal area. There were two significant areas of bruising, to the front lower left abdomen and to the lower back, identified as associated with an injury.
The appellant, C's stepfather, had brought her into hospital and told staff the child had fallen out of her bed in the early hours of the morning. The Crown's case was that she had not, but that the appellant had punched her, causing the injuries. Aware that his punch had caused her pain, he had done nothing to help her, then lied to hospital staff and as a consequence C had not received prompt treatment.
The case for the defence was that the appellant had not caused the injuries. C was a lively 5-year-old who enjoyed bouncing on beds, had a problem at school with a girl named, J, and had fallen down stairs. The appellant could not say how she was injured but he could say that it was not deliberately by him. Her account should not be believed because it was given five days after her admission to hospital and only following substantial prompting.
Before the trial the judge discussed with counsel how C was to be cross-examined. He was minded to direct the jury about it and in due course did. The following day there was further dialogue between Bench and Bar about C's ability to recollect events and this led to a further direction to the jury about how C was to give her evidence and the difficulty often encountered with a young complainant's recollection.
Here is how the judge phrased it in the absence of the jury to Mr Whitehead, who appears here and appeared below:
"But it is probably a time when it would be sensible to say to you, Mr Whitehead, in front of the jury that whilst cross-examination of witnesses is commonly and properly robust, in the case of a very young child it isn't. I shall say to you that you must ask such questions to which you want actual answers, but I will say to the jury that the nature of the defence in this case has been set out in writing, [in a defence case statement] and you are neither required, nor should you, to put that to the witness.
MR WHITEHEAD: Thank you. I may at times draft questions in advance … I don't intend to be very long with [C].
THE JUDGE: But it may help you any way, and I think it would help the jury, to know that there's been a direction along those lines as far as cross-examination is concerned. I shall probably also tell the jury that unless the witness has asked to see lawyers and judges in their robes we shall be in suits tomorrow morning."
Later, in the presence of the jury he said:
"The directions that I have given to Mr Whitehead in this case are that he can and should ask any question to which he actually wants answers, but he should not involve himself in any cross-examination of [C] by challenging her in a difficult[?] way. In this case the defendant has already set out in some detail what his defence is. It is not a question of putting it to a witness and challenging her about it, so you won't hear the traditional form of cross-examination. I thought you ought to know that from the outset."
Later, as the jury was brought in and the judge was running through the usual housekeeping task of timetable, he said:
"…as you heard yesterday as we discussed, Mr Whitehead will have a chance to ask questions but it won't be a cross-examination as you know it at all. He'll be asking some questions of her. It's always difficult with very young children. When you think that the event that we're talking of took place in August 2009, how much more difficult is it for a five year-old to remember that far back? So, the questions he asks of necessity be limited in that way. That's something that's unfortunate but we have to deal with it."
The evidence from Carly Davis, C's mother, was that on Tuesday 14th July 2009 C had come home from school, told Mrs Davis that another girl, J, had come up behind her and thrown her to the floor. On Wednesday 15th C, after school, said that some children had been sick and sent home. She complained she too felt sick. That night the appellant drove Mrs Davis to work at about 8.30 taking C and their daughter, E, born in 2008, with them. Next morning he arrived with the children to collect her. Mrs Davis asked C how she was and at first C she said she was fine but later she complained of feeling sick so Mrs Davis rang school at 8.20 in the morning and then, a night shift worker, went to bed.
Waking between 2.00 and 4.00 pm, she was told by the appellant that C had been sick, that they had gone to get a DVD from Blockbusters where C was sick again, and that she had fallen down stairs outside. The appellant that afternoon as usual went to the gym. That afternoon C was sick again, and now Mrs Davis noticed blood in her vomit. She rang the appellant, who suggested Mrs Davis ring her GP or NHS Direct, and when she did medical advice was to take C to hospital. Mrs Davis did not, as she was pregnant and looking after E, but rang the appellant who came home and himself took C to hospital.
After the first day at hospital he was no longer allowed to visit C because a cascade of allegation had begun and Mrs Davis went in his stead. She produced to the jury affectionate pictures which C had drawn to be given to the appellant. C, the jury knew, had been asking where he was.
On 22nd July Mrs Davis was told, at a meeting with DC Hillman and Miss Jones, a social worker, that on 17th July 2009 C had told a nurse that she had fallen out of a high bed with a ladder. Mrs Davis was told that if she wanted her children back she had to end her relationship with the appellant. DC Hillman gave evidence that when she and Miss Jones saw C on the 22nd July, not in a pre-recorded interview, the child had not wanted to go home with Daddy Simon, since, she said, he had hurt her and punched her in the stomach. Miss Jones told the jury that she and DC Hillman spoke to a doctor and then to C, who referred to the appellant as Daddy Simon or Dad. C said she liked mummy looking after her but not the appellant. She would not say why. Although C had been asking to see the appellant, she nevertheless told the two women she did not want to see him. Miss Jones explained to C her job as helping children to be happy and safe and she wanted to know if anything were happening. C, tearful, was asked what had happened and at first said she had fallen out of bed but then that she did not know what had happened. Miss Jones told the jury she "knew" there was an answer. DC Hillman asked if mummy had hurt her and the reply was "no". The officer asked whether the appellant had hurt her and C said: "Yes, he punched me in the tummy". There were no further questions as C was unwell and in discomfort.
On 23rd July 2009 C told a support worker in hospital she had a bruise "there"—indicating her groin, and said: "My dad said I fell out of bed but I never, he hit me." C had looked frightened. C told Nurse Turner she did not want to go because "Daddy hits me in the tummy. Not Daddy, Simon," On 29th July, to Linda Taylor, the play assistant, C said: "I don't like Daddy Simon because he hits me and punches me in the tummy." C's body language had changed. She added: "He doesn't stop even when I cry". Asked why, she said: "because I didn't eat my dinner quickly enough."
C herself, by way of a poor quality interview pre recorded on DVD in hospital by DC Hillman and Miss Jones, said the pain in her stomach was since she kept falling out of bed. She had also been punched by someone at school. She did not like the appellant looking after her because he kept punching her. Asked to tell of his punching her in the stomach, she said she had been eating her porridge, he asked had she finished, she said "no" and he punched her. She had been sitting on the floor. She stood, crying, and he punched her again in the stomach. She and he had gone next day to collect her mother. When her mother went to bed the appellant punched her again to the stomach because "he hadn't finished". She explained her other bruises as caused by falls down stairs and at school. She referred to the appellant as "Simon" and not 'Daddy'. She did not want him living at home. On the same day as the punch, she had...
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