Croad, R v [2001] EWCA Crim 644

EWCA-Crim
Croad, R v
[2001] EWCA Crim 644 · 2001-03-21
[1]On 11 th December 2000 in the Crown Court at Blackfriars before His Honour Judge Walker and a jury the appellant was convicted of indecent assault on a male (aged 9) by a majority verdict of 10:2. That conviction was upon the ninth count of a nine-count indictment. The jury was discharged from returning verdicts on counts 1-4, 6 and 7 (five counts of rape and a count of indecency with a child) because they were unable to agree. They acquitted the appellant upon count 5 (rape). The judge directed a verdict of not guilty in respect of count 8 (rape) to which count 9 (the single count of indecent assault upon which the appellant was convicted) was alternative. The appellant appealed against conviction by leave of the single judge. On 5 th March 2001 we allowed the appeal, stating that we would give our reasons later. We do so in this judgment.[2]The short facts are that B, aged sixteen, who was the alleged victim of counts 1-6 of the indictment, knew the appellant for some years and visited him at his flat, caravan and boat, as did other boys. The appellant was interested in, and would help the boys with, their motorbikes. B told his mother that the appellant was the father of a friend which was untrue. B had had a girlfriend C since he was fourteen. In October 1999, when he was sixteen, she gave birth to their daughter. B continued to visit the appellant with C and the baby. J (who was the subject of counts 8 and 9) was B's younger brother. They all visited the appellant's caravan on the weekend of 1 st /2 nd April 2000, following which visit J and B first claimed that they had been the subject of sexual interference by the appellant (in B's case when he was much younger).[3]Some time later, J spoke to C of sexual interference by the appellant. C passed it on to B, who in turn spoke to J, and B later told their mother. At that stage B told her he had been the subject of sexual assault as well. On 29 th April 2000 the police attended B's home and on 30 th April, B and J gave video statements. On 1 st May, the police searched the appellant's flat and then arrested him at his caravan. On 2 nd May, the appellant was interviewed about the allegations relating to J and B and denied them. On 14 th June 2000, D, another boy who was not related to B and J, but who used to visit and stay on occasions at the appellant's caravan gave a video statement to the police in which he denied that anything inappropriate had occurred between himself and the appellant. However, on 19 th June, he made a second video statement making similar allegations against the appellant. On 3 rd July, the appellant was interviewed in respect of D and denied any wrongdoing.[4]The evidence relating to J, and going to the alternative charges of rape and indecent assault under counts 8 and 9, was as follows.[5]J, who gave evidence by video statement and TV link, said that when he was nine he went to stay at the appellant's caravan with B and C and their baby. He woke up in the morning and the appellant chatted to him and then cuddled up behind him. J tried to get up to go to the toilet but the appellant would not let go. The appellant sat J on his lap. The appellant was wearing boxer shorts with a slit in them. The appellant pushed against J while he was on his lap, pushing his penis up J's `bum'. J said it hurt and he felt sick. He did not see the appellant's penis as he was sitting on his lap. He said it did not go far into him. The appellant's hands were around J's waist. J quickly got off the appellant's lap and went to the toilet and waited there for about ten minutes for B to get up. J said he later told his brother what had happened and B said that the same thing had happened to him when he was young. J said the appellant had bought him clothes and toys.[6]In cross-examination J said that B had never warned him about the appellant before the caravan trip. He admired and looked up to B. B had not put any pressure on him to make the allegation against the appellant. He had discussed with B what had happened before they went to the police, but not in detail. He said D was a good friend. About a week after the caravan visit, D had come round and spoken of what had happened to him. J said that whilst sitting on the appellant's knee he was wearing a T-shirt and boxer shorts. He felt the appellant's penis but he was not sure that it went up his bum. He then said that the appellant had sat him on his lap and pressed himself against him but it did not go up his bum. The appellant touched J's willie with his hand inside J's clothes; he had his hand inside J's boxer shorts on his willie. He said the appellant's willie was pressing against him through the boxer shorts but did not actually go up his bum. He did not recall having said that it hurt in his video statement.[7]B, who was seventeen at the time of trial, said that the appellant had acted as guarantor for his flat, as he and C were under eighteen. He agreed he had been something of a problem child and had difficulties reading and writing. He had set fire once to cardboard boxes near to a police station and the police had taken him home; he used to take cars with his friends and they would also damage homes of people they believed to be paedophiles. He was about twelve or thirteen when he had first met the appellant through another boy. He said he had lied to his mother that the appellant was a father of a friend so that she would let him stay with the appellant.[8]He spoke of the weekend away with J, C and the baby. He had intended that J should sleep in the double room with C and himself, but J had fallen asleep watching television and they could not rouse him. Thus, B, C and the baby slept in the bedroom and J slept on a bench in the sitting area, with the appellant asleep on the opposite side. B was concerned about J sleeping near the appellant but as he could not rouse J, and was also concerned about C. They slept as he had described.[9]B said he learned for the first time from J that the appellant had done something about two weeks later. J was reluctant to tell him at first and B had to ask him again and again what it was. When B discovered what the appellant had done to J he was so angry that he disclosed for the first time his past experience at the hands of the appellant. He said he had never told his mother before and did not tell her the full details, which he gave later to the police. When it was put to him that he had told J to say that he was raped, he denied it. He said he did not discuss the detail with J before J was interviewed by the police.[10]So far as concerns counts 1-6 relating to B, B said he would meet with friends at the appellant's flat to smoke cannabis and cigarettes and drink whisky, vodka and champagne, all provided by the appellant. The appellant also had a motorbike and helped the boys look after their motorbikes, giving them access to a field where they could ride them off the road. He said the first time the appellant had sexually assaulted him was at the appellant's flat when he had been lying on a bed `drinking and puffing'. He fell asleep and woke up to find the appellant behind him and touching him all over.[11]B did not go back to the appellant's flat for some days, but started doing so because that was where his friends were and he wanted to be with his mates. Buggery occurred again. He tried to tell the appellant not to do it, but the appellant was very persuasive. Eventually it became easier to take and it became `the way it was', happening many times over a year. It happened at the flat, at the caravan at Whitstable and on the appellant's boat. He described other forms of sexual interference. However, he kept going to visit in order to be with his mates, to get free cigarettes, cannabis and drink. He said he was too embarrassed to tell anybody what was going on and the only reason he had gone to the police was because of his little brother J, to whom he did not wish it to happen. He said that the sexual assaults upon him stopped when he started going out with C who he would take to the appellant's with him. He had not told C what had happened to him, even when J first spoke of his experience. He told her later. He said he was aware that someone else on the estate had obtained compensation for about £10,000 following abuse when young, but denied any such motive on his part, saying it had only come to light because of what had happened to J.[12]So far as count 7 was concerned, B said that he knew D as one of the younger boys at the appellant's. One evening at the flat, the appellant had taken D into the bed area of the living room. D had squealed and then the appellant had asked B to join in. B had also seen the appellant having sex with D twice. He had not spoken to D about it afterwards except to ask him if he was all right when they were in a field. C gave evidence of the weekend when J had been assaulted. She had asked B to bring J into the bedroom, but B had said that he could not move J. J had seemed normal the next day and appeared willing to go out with the appellant but, about a week later, J told her that he had woken up to find the appellant rubbing his willie against him, behind him. She told B, who went mad and kept asking J if it were true. J said it was and he had not wanted to tell anyone. C told J to tell his mother. J did not use the word `rape' to describe what had happened to him.[13]The mother of J and B gave evidence. She had known the appellant since 1993 and had not suspected anything adverse about him until B told her what had happened to J. So far as her own conversation with J was concerned, he had returned from the weekend away saying it had been all right. He had seemed quiet, but she had not known that anything was wrong until B spoke to her. B first spoke to her on her own. She was in a terrible state on hearing what had happened to J and asked B to telephone the police because she could not cope with it. Later B had told her that the appellant had done it to him also but gave no detail. She had tried to speak to J about it but he did not want to talk to her.[14]D also gave evidence of a single incident founding count 7. He said it occurred when he was staying with the appellant at his caravan and had woken to find the appellant's hands inside his shorts rubbing his bum, following which buggery had taken place, the appellant throwing him on the bed and telling not to say anything about what had happened. He said he never stayed overnight with the appellant again. In cross-examination he accepted he had lied to the police in his first interview when he denied that anything had happened to him; also to his mother when she asked if the appellant had touched him. However, he denied making up the allegations and denied that B had persuaded or frightened him into making them.[15]D's mother gave evidence that, when the appellant had been arrested, she asked D if the appellant had ever touched him and D denied it. He also denied it to the police in interview when she was present. However, she said that night she had heard D crying and found him curled in a ball in bed rocking backwards and forwards and saying that in fact the appellant had hurt him. She took him downstairs to comfort him and he told her that the appellant had raped him.[16]At interview following his arrest, the appellant agreed he had children to stay occasionally but said there was always another adult (aged about eighteen, nineteen or twenty) present. He said no one had stayed with him at the caravan apart from the occasion for which he was arrested. He denied the allegations in relation to J and said he was disgusted by them. He said he allowed B and C to have the big bedroom that weekend as they had the baby with them. He had thought J would sleep with them and that he would sleep in the lounge area. However, because J fell asleep, both J and he slept in the living room. He said he had worn a T-shirt and boxer shorts for sleeping in and J was already in his boxer shorts. He could not remember whether J was still there when he awoke in the morning but he denied either putting his penis into J's anus or putting J on his lap or putting his arm around him. He also denied any sexual acts with B. He said he thought B was trying to get compensation, that the boys had colluded in some way, B working up some story.[17]Interviewed a second time after D had made his video statement he denied assaulting D. But first he said D had never stayed, but then he remembered an occasion when D had stayed, sharing a room with B and another boy. He suggested that D's association with B was the reason for the allegation being fabricated.[18]The appellant did not give evidence. Four young male witnesses all supplied written statements which were read, to the effect that the appellant had befriended them through their interest in motorbikes but that nothing inappropriate or indecent had happened to them or anyone else whilst at his premises.[19]Following the completion of J's evidence, in view of the shift from his original allegation of rape on the video tape, to an allegation of conduct which was no more than an indecent assault when he was cross-examined and re-examined, prosecuting counsel indicated that she accepted that a full charge of rape would not survive a Galbraith submission at the conclusion of the prosecution case. She submitted, however, that it would be appropriate for an alternative count of indecent assault to be added. Counsel for the defendant adopted the first proposition, but opposed the addition of an alternative count, on the basis that the variations at various stages in the complaints and evidence of J rendered his evidence so self-contradictory, tenuous and inherently weak that it would be inappropriate for an alternative count to be added. The judge, in a careful ruling, recited the nature of the evidence as it had unfolded, considered the various authorities and the propriety of an alternative verdict, and concluded as follows:
"I am quite satisfied that indecent assault is an available alternative verdict to a count of rape and, as I said, in the end I do no think Mr Mendelle was actually as a matter of law seeking to argue otherwise ... My view is that given the criminal standard of proof, a jury could not be sure that J was actually penetrated in his anus, but that, subject only to the issue of actual penetration or not, J has in my judgment given an essentially consistent account of indecent conduct towards him by the defendant, the defendant pressing his, the defendant's penis in the area of J's anus and on that occasion touching J's penis. In my judgment it is therefore appropriate and just that indecent assault is seen to be a direct alternative to the count of rape .... Here I am satisfied therefore that I should rule that indecent assault is a viable alternative verdict and indeed that in any event an additional count should be added to the indictment reflecting the indecent assault allegation against J. But it is also my view that Mr Mendelle is right when he says the defendant should not be in a position of facing a grave charge such as rape for any longer than is necessary. Therefore, it is my view provisionally, subject to anything else that counsel has got to say as to the timing and mode of handling this, that either now or at any rate before very long, the jury should be told first of the adding of a count of indecent assault and then should be directed to dismiss the rape, count eight, in respect of J."
[20]That course was then followed.[21]At the close of the prosecution case, a submission of no case to answer was formally repeated in respect of count 9 and rejected. No substantive argument of any kind was put before the judge, and no suggestion made, that there had been any evidential change since the original decision to allow amendment of the indictment.[22]The two grounds of appeal in respect of which the single judge granted leave are these. First, it is said that the trial judge erred in failing to accede to the submission of no case to answer on the grounds that the evidence was inherently tenuous, self-contradictory and unreliable. Suffice it to say that, having considered carefully the evidence given in the case and the particular course which it followed, we can see no basis for upsetting the decision of the judge. Having seen and heard the evidence of J, he was of course in a better position than this court to judge whether or not, rather than simply raising doubts upon the question of penetration, it so undermined the proof of the allegation that the appellant pressed up against J with his penis in the manner and circumstances described, that it should not be left to the jury. Despite the vigour of counsel's argument, we have no reason to think that the judge erred in his conclusion.[23]The second ground of appeal advanced is that the judge erred in failing, when summing up to the jury, to give the jury any direction as to the evidential effect of previous consistent statements by J as complainant, namely that they were not evidence of the facts complained of. It is certainly the case that the judge gave no such direction. The first observation to be made is that the complaint arises in unusual procedural circumstances because of the course which the trial followed. At the time when J gave his evidence, he was doing so solely in relation to count 8 which charged rape. The Crown did not, for its part, rely on any `recent complaint' by J, in this respect. It relied simply upon the evidence of J as he had given it in his video interview. In those circumstances, it was in the interests of the defence to bring out in cross-examination, and emphasise the fact, that the original complaint of J to C and his mother had not been one of rape but simply that J had woken to find the appellant rubbing his penis against him; also that J had not used the word `rape' to describe what happened to him and that it was B, who, having had the complaint passed on to him by C, first mentioned rape. Again it was in the interest of the defendant to emphasise this course of events because the defence was suggesting collusion and/or instigation by B. However, following the deletion of the charge of rape and the substitution of the charge of indecent assault, the original terms of complaint assumed a completely different emphasis, because broadly speaking, (and unless the jury were warned to the contrary) they supported the charge of indecent assault.[24]It has been submitted for the appellant that, in these circumstances, it was important that the jury should be directed that the statement made to C was not evidence of what happened but, at best, could be treated as admissible to establish consistency with the evidence of the complainant given at trial: c.f. R -v- Askew [1981] Crim L R 398; R -v- Wright and Ormerod 90 Cr App R 91; R -v- Islam [1999] 1 Cr App R 22. We agree.[25]Counsel for the Crown has submitted to us that, because the Crown did not seek to rely upon the earlier conversation with C as a recent complaint (see Archbold 2001 at para 8-103 to 8-106), the model direction set out in the Crown Court Bench Book in relation to such complaints was not called for.[26]We disagree. It seems to us that such a direction is called for whenever there is before the jury, by whatever route, a previous account by the complainant which does not of itself constitute evidence, but to which the jury is likely to have regard in coming to its conclusion as to whether the charge has been proved. That was certainly so in this case. The judge, in an otherwise excellent and conscientious summing up, had instructed the jury at the outset that it was their task to decide the case: "having regard to the whole of evidence you have heard and forming your own judgment, in particular, about the reliability of the witnesses who have been called before you." although he told them elsewhere that: "you must assess their evidence both of the video interviews with the police and their answers over the video link using your common sense and your experience of dealing with children and how they tick," he had not advised the jury as to the status or relevance of the earlier complaint in relation to such evidence.[27]Although, for the reasons earlier indicated, the previous complaints had been advanced and achieved emphasis in cross-examination, that was at a stage when they could and would have been relied on as evidence of inconsistency with the charge of rape then before the jury. However, by the time the judge was summing up, the position was that the jury, unless carefully directed, were likely to treat them as relevant and probative . Whereas, in some cases and contexts, it is legitimate to doubt whether the distinction involved in the prescribed direction is one which juries appreciate, let alone observe, we cannot ignore the fact that this appeal is before us in a situation in which the jury acquitted on one count and failed to agree on every other count save count 9. Even on count 9, they only convicted by a majority of 10:2. In those circumstances, we are unable to say that we are satisfied that the conviction was safe and we have therefore allowed the appeal. In the circumstances, and with a re-trial of counts 1-4, 6 and 7 shortly to begin, we think it right to order a re-trial in respect of the charge of indecent assault whereby, if the Crown wishes to do so, it will be enabled to restore count 9 to the indictment for the purposes of such re-trial.

Cited in 1 later judgment