R v W. (John)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOOPER |
| Judgment Date | 18 March 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0318-1 |
| Docket Number | NO: 97/6018/W3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 March 1998 |
[1998] EWCA Crim J0318-1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
The Strand,
London, WC2A 2LL
Lord Justice Waller
Mr Justice Hooper and
Judge Advocate General
His Honour Judge Rant Cb Qc
(Acting as a Judge of the Court of Appeal Criminal Division)
NO: 97/6018/W3
MR M SCOTT appeared on behalf of the Appellant
MR A CAMPBELL-TIECH (MISS D CONNOLLY)appeared on behalf of the Crown
On the 10th July 1997 in the Central Criminal Court before His Honour Judge Elfer and a jury the appellant, now aged 19, was convicted of 2 offences of false imprisonment and one offence of indecent assault. We granted his application for leave to appeal against conviction which was referred to the full Court by the single Judge.
Background
The appellant had been away from home and on the 10th January 1997 he returned to stay at 39 Cambridge Road, Aldershot, where his mother lived. Counts 1 and 2 alleged the false imprisonment and indecent assault on a 25 year old, C, in Aldershot. There was no dispute that she had been falsely imprisoned and indecently assaulted on the 24th January at about 6.15 p.m.. Count 3 alleged an offence of false imprisonment committed on a 13 year old at 6.32 a.m. in Farnham two weeks later on 7th February. There was no dispute that S had been the victim of a false imprisonment. The issue in both cases was identity. The appellant did not give evidence.
Aldershot counts
C gave evidence that on 24th January at about 6.15 p.m. she was returning home through municipal gardens in Aldershot. The gardens are about 300–400 yards away from 39 Cambridge Road. There was no lighting inside the gardens and the only light came from nearby streets and the moon. As she walked through the gardens she heard a jangling noise behind her. She turned and saw a man some 20 feet behind her. She continued walking and the man came alongside her, raised his arms and shouted "Raaah!" to frighten her. He turned to face her and she continued walking, with him alongside. He said to her "How are you%?". She concluded that he seemed to know her. She did not recognise him and replied "Fine thanks, who are you%?" He replied "Fine thanks" and she said again "No, who are you%?". He replied "I'm a rapist".
He then grabbed her from behind and pulled her down onto the path. She thought he was going to rape her. She started to scream and bent back the fingers on his left hand which was around her throat. He pulled his hand away and punched her in the eye before running away. She described having seen his features close up for five to ten seconds both in full face and profile. She described him as early 20s, pale, 5'7"-5'8", of skinny build and with greasy black hair. He was wearing a bomber jacket which she took to be green. He had a large pointed nose and a local accent. The description fitted the appellant. His mother had lent him a green bomber jacket when he came home on 10th January 1997 with only the clothes he was then wearing.
After the attack she had gone home and told her boyfriend what had happened. He was angry and went out into Aldershot to find the assailant. She went with him and they saw a number of young men who roughly answered the description of the attacker but she was sure that none were in fact her assailant. She then reported the attack to the police and a description of her attacker was published in the local newspaper. On 1st February she was approached by a man in a pub who informed her that the appellant, whose mother the complainant knew, was back in the area and that the police should put him on an identification parade.
The appellant stood on an identification parade from which the complainant identified him with the words "It's number 4 I think". In evidence she said that she had recognised him as the assailant straight away. If she had used the words "I think", she had meant "I know". In cross-examination she denied that she had identified him because she had seen him before, but because he had been her attacker.
The statement was read of a man who had been in the gardens on the night of the offence but had subsequently disappeared. We were told that he could be described as a park alcoholic. His statement was read at the request of the defence. According to the statement he had just entered the park from the opposite side to the school when he heard a woman's screams. As he made his way towards the noise, a male came running towards him. The male pushed into him and swore at him before running off in the direction of Cambridge Road. The male was in his early 20s, 5'8", slim with dark hair and wearing a dark bomber jacket and white Adidas trainers with dark stripes wearing "a black woollen type hat". He was wearing an earring and had quite a small nose. He said that he thought he would be able to identify the male but, when he attended the identification parade, in fact selected a volunteer. The appellant did not wear an earring. He was wearing a pair of Adidas trainers.
Barry Lawrence gave evidence that he lived at 39 Cambridge Road with the appellant's mother and several others. At the time of the offence the appellant's mother was not staying at the house. The witness gave evidence that, on the day of the offence, the residents had agreed that they would have fish and chips for supper at 5.30 p.m.. Mr Lawrence gave evidence that the appellant did not return until 7.30 p.m. and the witness had been angry because it was too late for supper.
Mr Lawrence was cross-examined and agreed that he was on medication that made him sleep heavily and that he would usually sleep until 8 p.m.. However, on the day of the offence he had not taken the medication because he wanted to be able to drink. He had slept until 4.30 p.m. and had then watched television until about 7.30 p.m. when the appellant returned, wearing the green bomber jacket. It was put to him that, in his statement, he had said that when he awoke the appellant was already in the house. He said this was wrong and denied that he was trying to disadvantage the appellant because he knew the complainant's father.
The appellant was arrested on 7th February following the events the subject matter of count 3 (the Farnham count). He was interviewed and said that he had been in the pub on the evening of the offence and had then taken a walk around town before going home. He had not walked through the park that night and had returned home at about 6.15 p.m. and gone to bed. He knew about the offence because he knew the complainant's father and had met her previously. He said that the complainant would probably recognise him because he had said hello to her before. He had last seen her about 18 months to 2 years earlier.
Farnham count
Count three related to an offence on 7th February 1997 in Farnham, the day of his arrest. The appellant had moved to Farnham on 3rd February as a result of an argument with his mother and was staying at a hostel there. Because he had no other clothes, he was still wearing the same clothes that he had been wearing when he arrived at his mother's house. There was evidence that he knew Farnham well. The complainant, S, was aged 13 and at 6.30 a.m. on 7th February she was doing a paper round in the centre of Farnham. Her movements and the aftermath of the offence itself were recorded on closed circuit television in the area. She gave evidence that she was walking past the TSB when she saw a man crossing the road towards her. She crossed the road away from him but he re-crossed after her. She became worried and paused by a bus stop. The man ran up and grabbed both of her arms from behind, saying "I've got a knife, don't do anything". He pushed her across the road and said "Do what I say or I'll cut you". He then said she would have to go down an alleyway with him. She struggled and screamed loudly. He told her to shut up and put his hand over her mouth. He looked around to see if anyone was coming and suddenly let go and ran off. She saw a council workman on the other side of the road and ran across to him. She told him that a man had tried to attack her and they went to a café to call the police. When she last saw the attacker he had been running towards another council workman. That workman had joined them in the café and told them that he had heard her scream and had then seen a young man run and trip heavily before running on.
The complainant described her attacker as early 20s, wearing a woolly hat, a long sleeved cream sweatshirt, dirty jeans and white striped Adidas trainers. He was about 5'9" or 5'10" and of average build. The hair under his hat was dark. Although it was dark the area where the offence was committed was well lit.
The council workman gave evidence that he heard a scream and saw a male in his late teens about 5'8" to 5'9", of slim build and with dark hair, wearing jeans and a light coloured top. The male was running and tripped, falling to his knees before getting up and running off. A video camera recorded the attacker falling firmly onto his left knee. Another video camera was positioned on the area just before where the attack took place and at 6.30 a.m. this recorded a young man in a light coloured T shirt, jeans and white trainers gesturing at the camera. The recording was too indistinct to be able to identify the man but it was evident that he wore a wristwatch on his right arm.
Brian Davis gave evidence that he was a project worker at the hostel in which the appellant was residing at the time of the offence. At 6.50 a.m. he was having a cup of tea in the hostel when he discovered that the lounge window had been left open. He closed it and turned to find that the appellant...
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