MM, R, v R [2007] EWCA Crim 1558

Case No 2006/5159/D1[2007] EWCA Crim 1558
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 19 June 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE LONGMORE
MR JUSTICE NELSON
MR JUSTICE CALVERT-SMITH
Between
R E G I N ACrown-v-
Between
M.M.
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS R STEVENS appeared for APPELLANTMISS L DICKINSON appeared for CROWN
J U D G M E N T

LORD JUSTICE LONGMORE:

On

[1]19th September in the Crown Court at Sheffield before His Honour Judge Lawler, this appellant Michael M was convicted of three counts of rape and three counts of indecent assault. He was in due course sentenced to 12 years' imprisonment concurrently on the rape counts and 12 months' imprisonment concurrently on the indecent assault counts. He now appeals against conviction by the leave of the single judge.[2]The short facts are that the appellant was the stepfather of the two complainants, to whom we will refer as K and R. He moved in with the complainants' mother, whom we will call Jill, in 1996 and they married shortly thereafter. It was the prosecution case that between September 1998 and September 2001 the appellant raped K who was born in September 1990, and was thus aged between eight and ten at the relevant times, between 10 to 20 times; and secondly, that between May 1999 and May 2002 the appellant indecently assaulted K's older sister R, born in May 1988, she was thus between the ages of 11 and 13 at the relevant times.[3]It was the defence case that no acts of intercourse took place with K and he never indecently touched R and that both K and R had fabricated the evidence they were putting before the court.[4]Evidence was given by K who said that living with the appellant depended on what mood he was in. He would cuddle her in the usual way but she had sex with him between the ages of about eight to ten. It happened up to nearly 20 times. It happened every couple of months. She described the act as "he put his penis into my vagina." She could not remember the first time it happened. He used to ask or tell her to massage or cuddle him. It always happened in her mother's bedroom. He would tell her to make a cup of tea and bring it up because he was on the computer. R would be either at school or at a friend's house and her mother would always be at work. It used to happen at about 4 pm.[5]She then described what happened and in particular she described his penis as "big and long" but also described it as "pointing down" before he inserted it into her vagina. She said that she did not struggle, she did not see his penis after sex and she said that the appellant told her not to say anything as her mother would blame her. He would tell her to get washed with a sponge and then he dressed her and sent her downstairs.[6]The appellant stopped his activities when K's mother threatened to kick him out of the house for having an affair with another woman.[7]In due course her mother told her that R had made a complaint and her mother asked if the appellant had ever done anything to K. She ended up telling her mother what had happened and felt guilty about doing so.[8]Medical evidence was neutral.[9]R gave evidence to the effect that the appellant would ask her and others to massage his neck. She was about 11 when the physical touching went further. It took place in the living room. She described the physical touching by saying that he told her to go upstairs and get the spare single duvet and lay it on him. He then told her to get under it with him. He undid her jeans button and zip and pulled her trousers down to her knees. He stroked and tickled the inside of her at the top. That went on for about 45 minutes. She did not tell anyone as she was scared. The appellant said it was their little secret. This happened about three to four times a month when she was between the ages of 11 and 14 or 15. She never told K what had happened and she never saw anything happen between K and the appellant.[10]She discussed with her boyfriend at a later stage whether they had any secrets and she then told him about the appellant and he said that she should tell her mother. So she did tell her mother on the evening of 10th November and, after speaking to her natural father, they contacted the police. The reason why she had not said anything when the appellant left the house in 2003 was that she wanted to block it out and forget about it. She had not talked to K about the appellant prior to her video interview. She did not really want to know what had happened to K.[11]The complainants' mother gave evidence and said that R was the more outgoing of the two, but she was the oldest. She said that as teenagers they did not talk about sex or have sex on their minds, but in cross-examination she agreed that they would sometimes refer to what they had learned in sex education classes and talk about what they had read in "girlie" magazines. She explained that the appellant was a pizza delivery driver whose work took him out of the house at and after 4 pm and that she worked as a full time student nurse. She then gave evidence about how it came about that R had told her in 2005.[12]The appellant was interviewed. He denied the offences. He gave evidence at his trial and said that as soon as he moved in he bonded with the complainants. He said that R was particularly cheeky. He said he asked them to massage his neck because he had had an accident to it. He worked as a pizza delivery driver and would set off at about 4 pm on the days that he worked. He said that he spent a lot of time away from the home because he played in a band. He denied that he had ever unbuttoned R's trousers or that he had ever had intercourse with K and said that the children had made the allegations up.[13]There is one ground of appeal supported in four different ways, the one ground of appeal being that the summing-up was unfair and slanted towards the prosecution and against the defence. The main way in which complaint is made of the summing-up is that, as it is said, the judge took it on himself to give evidence to the jury about the reasons why the girls might not report incidents that had happened if they had happened. That is said to be important because the allegation was that they had been made up and of course if incidents of this kind take place one would expect, submitted Miss Stevens, immediate or very quick reporting of the incidents to someone in authority and in the absence of such report the jury should conclude that the allegations were fabricated.[14]It is necessary to set out for this purpose quite a long passage of the summing-up, beginning at page 9:
"I turn now to another topic which is the question of delay. These complaints were made in November of 2005, that is some three years plus after the defendant, on the mother's evidence, had left and they had begun six or seven years before. So there has been some delay here and of course there was the period over which the alleged offending was taking place. It is now some years ago. You should be alive to the fact that that delay can cause real difficulties and possible prejudice to a defendant. You should have that in mind when you come to decide whether the prosecution has made you sure of guilt."
We pause there to observe that that is a direction in ordinary form saying how delay in bringing a case can be prejudicial to a defendant and to that extent is a direction in the defendant's favour. There then followed the passage of which complaint is substantively made:
"You are entitled to consider why these matters did not come to light sooner. The defence say it is because they are not true. The allegations are fabricated. Had they been true, they say, you would have expected a complaint to be made earlier and certainly when he [that is of course the appellant] was out of the way. The prosecution say it is not as simple as that. When children are abused, whether these two girls were abused is what you have to decide, they are often confused about what is happening to them and why it is happening. They are children. That is something you should have in the forefront of your mind when considering this. They might have some inkling that what is going on is wrong. Sometimes children even blame themselves when there is obviously no need for them to do so. A child can be inhibited for a variety of reasons from speaking out. They might be fearful that they may not be believed, a child's word against a mature adult, or they might be scared of the consequences, or fearful of the effect upon relationships which they have come to know. The difficulties, you may think, are compounded in the family situation where they involve a family member for whom the feelings of the child may be ambivalent. The child might not like the abuse but there may be aspects of the abuser that causes the child to view them with some degree of affection. The fallout from disclosures can be unpredictable and sometimes calamitous. So, if a child or children are abused, they are often subject to very mixed emotions,and that can be the case particularly where there is an imposing adult in the household of whom they are perhaps afraid and who has overborne them and has power over them and sometimes has warned them if they tell. Whether any of that applies here is a matter for you. Equally, there are sometimes in lives, sometimes earlier, sometimes later, sometimes much later, when there is a trigger or the need arises to disclose, speak out. No easy thing to do, you may think, and it takes some courage to do so. Ladies and gentlemen, I make clear to you that I offer these matters to you not by way of direction in law but at things which in common sense and with knowledge of the world you might like to consider in assessing whether you find that there is a reason for the delay here and of course it also affects the honesty and truthfulness of the two girls. You have heard explanations and it is entirely a matter for you but you may think that some of the things which they said on the video and to you, K, 'He told me I would get the blame. It's our secret', R, 'I didn't know whether they would believe me or him', both of them scared to an extent. 'I was worried about what would happen. I was worried about his reaction, what people might say.' It is a matter for you but you may think that some of those reactions, if they are true, mirror some of the matters I have just been speaking about."
The judge then returned to the difficulties from the defendant's point of view with regard to the passage of time and emphasised that the jury should make allowances in that respect.[15]It is said by Miss Stevens that the passage which we have read went further than just setting out what the Crown's case about the absence of earlier disclosure was, but gave the judge's own views and effectively the judge's own imprimatur to the Crown's position on that topic.[16]It seems to us that this passage, slightly elaborate as it is, does not go beyond the bounds of permissible comment on the part of a judge. The defence here was fabrication. The jury were of course fully aware of it and the judge reminded them of that in the passage we have read, but in our judgment the jury did need some assistance as to the reasons why it might be that it might take time for girls to make allegations of this nature. The jury would have been very well aware that allegations are of course sometimes made up. They would have been very well aware that that was the decision that they had to make in this case. They might not have been so aware of why it is that early complaint is not made in respect of these allegations and the judge was, in our view, entitled to give the measured comment that he did.[17]Other complaints of a lesser nature are made which we can deal with more shortly but it is said by Miss Stevens that they likewise show a lack of balance in the summing-up. It is said, for example, that while the judge reminded the jury of K's description of the appellant's penis before penetration as being "big and long", he did not remind the jury of the fact that it was "pointing down" according to K in another part of her evidence. We have to say that that seems entirely marginal in the circumstances of the case. There is of course no need for a judge to remind a jury of every item of evidence, particularly in a trial which was as short as this one, all over inside two days.[18]It is then said that there was an incomplete representation of the evidence of the mother in the summing-up because while reminding the jury of her evidence that the girls did not discuss sex with her, he omitted to remind them of what she said in cross-examination about the way they talked about sex with each other after sex education classes and how they discussed what they had read about sex in girlie magazines. Again, it seems to us that that is an entirely peripheral matter. The essence of the mother's evidence was laid properly and fairly in front of the jury.[19]Complaint is also made of the way in which the judge dealt with the possibility of collusion in the case by saying that the jury might well think that if they accepted the evidence of the girls there was no collusion. But that seems to us a perfectly acceptable comment on the part of the judge.[20]Overall, the question for us is whether the judge summed the case up fairly with regard to this appellant and the allegations that the girls made. Looking at the summing-up as a whole, we take the view that this was fair and not a biased summing-up. The learned judge put the issues before the jury fairly and squarely. He recited the defendant's evidence, made it perfectly clear what the defendant's case was and we are satisfied that no complaint can legitimately be made about this summing-up. This appeal will be dismissed.

Cited in 3 later judgments