Rogers v R [2004] EWCA Crim 489

Case No 2003/0766/D2[2004] EWCA Crim 489
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE SCOTT-GALL
SITTING AT LEWES CROWN COURT
Venue Royal Courts of JusticeDate Wednesday 10 th March 2004
Strand,
London, WC2A 2LL
Before
LORD JUSTICE WALLERMR JUSTICE HEDLEYHIS HONOUR JUDGE STEPHENS QCsitting as a Judge of the High Court
Between
IAN ROGERSAppellantTHE CROWNRespondent
Gordon Bebb QC (instructed by The Registrar) for AppellantsPatrick Magge (instructed by The Crown Prosecution Service) for Respondent
JudgmentLord Justice Waller :
[1]This is an appeal with leave of the single judge against a conviction (by a majority) on one count of indecent assault following a trial before His Honour Judge Scott-Gall and a Jury sitting in the Crown Court at Lewes on 13th January 2003. The appellant was subsequently sentenced to 18 months imprisonment.[2]The original indictment had comprised four counts of rape and two of indecent assault. At the close of the prosecution case the learned judge withdrew the four counts of rape (there was insufficient evidence of lack of consent) but allowed the four allegations contained in those counts to go to the Jury as allegations of indecent assault as, given the age of the complainants, consent was irrelevant. In due course the jury acquitted on all counts save one (count 3) where they convicted the appellant. The appeal raises the issue of inconsistency of verdicts.[3]At the conclusion of the hearing of the appeal we announced that the appeal would be dismissed for reasons that would be put into writing and handed down later. This we now do.[4]The three complainants in this case were young teenage girls known as S, J and K. They were all friends but it is S and her family who are central to this case. The material facts can be stated comparatively briefly. The family of S had sustained bereavements: her father had sought solace in alcohol and her mother had been depressed. The appellant had become a friend of the family and had been friendly and generous towards S and her friends. On one evening in July 2000, whilst the father was in the pub and the mother away on holiday, the appellant was alone with the girls. S said that he indecently assaulted all three of them. S then maintained that the Appellant had had a sexual relationship with her over the next few months involving full sexual intercourse on some nine occasions. The other girls also complained of sexual activity. In the end the only conviction related to the very first incident related by S.[5]In essence the prosecution case was that the Appellant deliberately curried favour in this family so as to gratify himself sexually at the expense of these girls. It was said to be implausible that they had colluded to make false allegations and the allegations made were, if anything, understated and made with no apparent motive. The Defence case was simply that no sexual contact of any sort had taken place with any complainant; that the allegations were made out of jealousy and bitchiness; and that their falsity was demonstrated by the inconsistencies within and between their accounts.[6]In his summing-up (of which no complaint is made) Judge Scott-Gall put the matters fairly and concisely to the Jury. He said (page 2E-G):
“And your task can be simply stated in this way: in the case of each witness the first question you ask yourself is this: ‘Has that witness been telling the truth?’ And having asked the question, and answered it, you go on to ask yourselves the second question: ‘Has that witness been accurate on the account that he or she has given?’ And in answering the second question you are discharging your vital and critical function.”
He then went on, importantly in this case, to say (page 3F-G):
“The second direction I give you is important. There are six counts on the indictment and each count represents a separate allegation against this Defendant. You must consider the case against and for the Defendant on each of these counts separately; the evidence is different and therefore your verdicts need not be the same.”
Finally (at page 6F-G) he said this:
“Now, each complainant was adamant that the act complained of occurred. The Defendant denied any such act with any complainant ever occurred; that is the only issue that you need to determine on each of these separate counts.”
He then goes on to explain why that is so, but that it is so is agreed on all sides. The judge left to them the key issue, the key questions and the key direction for separate consideration. In the event they convicted, as we have said, on one count alone.[7]What is now forcefully said by Mr Bebb on behalf of the Appellant really comes to this. The Jury has found that there are features of the girls’ evidence that make them unreliable. The issue in respect of each count was exactly the same i.e. did it happen? Therefore a conviction on Count 3 alone is logically inconsistent and has no rational explanation for it. Thus he says that the conviction is unsafe.[8]The essential law is uncontroversial. When seeking to impugn a conviction on the basis of inconsistency of verdict, there is a burden on the appellant not only to establish inconsistency but to demonstrate that no reasonable jury properly directed could have arrived at the conclusion which was in fact reached. In other words that it was not possible to postulate a legitimate chain of reasoning which could reasonably explain the inconsistency.[9]However, those principles have caused a little more difficulty when it has come to their application. A modern statement of the law can be found in R –v- G [1998] Crim LR 483. In that case convictions depended upon both the reliability and the credibility of a complainant to sexual offences. The jury convicted on some counts but acquitted on others. It was said that those verdicts were therefore inconsistent. The court rejected that argument and, having stated the law, as above, went on both to reinforce observations in Bell (unreported 97/0085/Z4) that it was not necessarily inconsistent to accept some parts of one witness’ evidence but to reject others and also to acknowledge possible exceptional cases as in Cilgram [1994] Crim CR 861 to which we must return. The court in R –v- G went on to point out that a person’s credibility is not a seamless robe any more than is their reliability. The jury had to consider each count separately and might take a different view of the reliability of the evidence on different counts. It was too simplistic to draw a stark distinction between reliability and credibility. It was for the jury to decide on the basis of all the material before it whether it was sure of a particular allegation in each count.[10]Mr Bebb accepted that this was the present state of the law but submitted that his case fell into that exceptional category recognised in Cilgram where the court ought to interfere. Cilgram itself was decided before both Bell and R –v- G but also involved sexual offences. On the basis of the reports available to us, it is not necessarily easy to reconcile the decision in Cilgram with the later decisions. That in itself constitutes a warning about the difficulties inherent in reviewing Jury verdicts in these type of cases where the impression and demeanour of witnesses is often so important. In our view the law is to be taken as definitively laid down in R –v- G, and Cilgram is to be treated as a case on its own particular facts (as the court in that case appears to have recognised) illustrating the proposition that there will be some cases in which appellate intervention is required.[11]In the present case the question is whether it was open to the Jury to be sure of the first incident in the alleged series whilst clearly not being sure about anything that followed. It is a fair inference from the verdicts that they were unconvinced by the evidence of J and K and unconvinced by part of the evidence of S. Does that, however, lead irresistibly to the conclusion that they were not entitled to be convinced by the evidence of S on Count 3?[12]In our judgment it does not. There is no reason in a case like this that a jury properly directed both to give separate consideration to each count and also that different verdicts were open to them (as they were) should not have done just that. They clearly gave the closest consideration to the case and returned their verdicts on the Counts relating to S last. That they should be sure about the first event but unsure as to anything else does not seem to us necessarily inconsistent and, even if it were, does not seem to us to defy rational interpretation. They did as the learned judge had directed them and came to a conclusion which, whilst it may have surprised those involved, in our judgment they were entitled to come.[13]We would like to emphasise what was earlier said in this court in Bell and R –v- G that credibility is simply not one and indivisible. Especially is that so in this type of case. Of course any jury must look at the overall picture and form a view as to the essential credibility and reliability of those whom they have heard. Having done that, however, they are both required and entitled in respect of each allegation to ask themselves whether they are sure of guilt and answer that question by individual verdicts. It will, we think, require a compellingly unusual or obvious case before the court will be prepared to go behind a verdict which is based on the Jury’s assessment of the evidence of witnesses.[14]It was for these reasons that we dismissed this appeal. LORD JUSTICE WALLER: I should make clear that the constitution which heard this appeal on 20 February 2004 was myself, Mr Justice Hedley and His Honour Judge Stephens QC. On that day (20 February) we dismissed the appeal for reasons to be given later and we now hand down those reasons

Cited in 1 later judgment