T, R. v [2008] EWCA Crim 3229

[2008] EWCA Crim 3229Case No 2007/1471/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 17 October 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE TUGENDHAT
HIS HONOUR JUDGE GILBERT QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
T
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr B Thorogood appeared for AppellantMr S Rose appeared for Crown
J U D G M E N T

LORD JUSTICE MOSES:

This

[1]is an application for permission, although it is accepted that if we grant permission we should also deal with it as an appeal, against a conviction on ten counts of rape and six counts of indecent assault against this applicant. The defendant was convicted on 3rd December 2004 at Chelmsford Crown Court and sentenced to a custodial term of 10 years' imprisonment in all with an extended licence period of five years.[2]The case concerned allegations that he had sexually assaulted and raped the daughter of the woman he was living with when she was between the ages of nine and ten-and-a-half years old. He had married the mother and set up home with her in October 1997. Living with them was his wife's children (the complainant and her brother).[3]In March 2003 he left home in circumstances that were never revealed to either of the two jurors who listened to the evidence. The first trial had to be aborted because the jury as a result of questions were about to learn of the circumstances in which he left home. The second trial was not aborted and was conducted without the jury ever learning of the reason for his leaving that home. The reason is of importance in relation to the appeal now advanced.[4]A description of the events which caused him to leave home is to be found in the account given by trial counsel, whose conduct of the trial was the subject of criticism in this appeal. Whilst this applicant was living with the complainant, her brother and their mother, the daughter of a woman, with whom he had previously lived, managed to track him down. That was in July 2002. She confronted him with allegations that he had raped and indecently assaulted her. Her allegations led to his arrest and charge and he was bailed awaiting trial. It is important to note that throughout this period, and indeed the trial, the complainant in the instant application, her mother and for all we know her brother (in other words both his stepchildren) supported him in his disgust as to the allegations made against him. He was acquitted of rape but convicted in March 2003 of indecent assault and incitement to commit gross indecency against the daughter of the woman he lived with back in the 1980s when she was nine years old. As we have said, his wife and the stepchildren remained loyal to him, but subsequently the position of his wife and the complainant changed. Issues of grooming and sexual abuse were explored with social services and eventually, and apparently reluctantly, his stepdaughter made the complaints which led to the conviction in Chelmsford in December 2004.[5]She alleged, as she did at trial, that at about the age of nine, in other words the same age roughly as the girl with whom he had lived back in the eighties, he had started to sexually abuse her and had had sexual intercourse with her on about 10 to 15 occasions with 10 to 15 incidents of oral sex.[6]The appellant denied this and gave evidence that he and his wife had a normal sexual relationship. On one occasion his stepchildren had walked in when they were having sexual intercourse and he believed they may have had access either to magazines, a vibrator or a sexual manual. It was suggested by defence counsel at trial, faintly and tactfully, that the young girl might have had access either to the vibrator or to the sexual manual which might have triggered the allegations she subsequently made.[7]The case was conducted on the basis that the young girl had indeed had sexual intercourse but the applicant denied that he was the perpetrator of that rape. It was conducted on that basis as a result of the defence team's acknowledgement of the state of medical evidence at the time of the first trial. The history of how that medical evidence was obtained and what it revealed is to be found in a medical report which the defence at the time obtained from a Dr Roberts, an esteemed and well-qualified paediatrician. She has had great experience of examining children in relation to whom sexual abuse was alleged over many years. She has been clinical director of a sexual assault referral centre in Manchester and a consultant to children's University Hospitals in that area. She has been involved in training paediatricians, lawyers, the police and social workers in that field. Her qualifications have never been disputed or undermined.[8]She records that the first examination following the complainant's allegations was made by Dr Bhattacharyya back on 11th December 2003. There are full and legible written notes of that examination. The doctor, Dr Bhattacharyya, noted the allegations and examined the complainant. Particularly she said that there was no hymenal tissue. The hymenal rim was asymmetrical showing a notch at 9 o'clock and little small fleshy tissue at 6 o'clock. The hymenal opening measured 1.2 centimetres. The complainant was described as pre-pubertal so no digital examination was undertaken. Dr Bhattacharyya's opinion was that her observations confirmed repeated abuse due to either digital or genital penetration.[9]The examination of Dr Bhattacharyya was subject to trenchant criticism by Dr Roberts. She pointed out that Dr Bhattacharyya had failed to follow the guidelines set down in 2002 by the Royal College of Paediatrics. In particular, as a single doctor, she should have obtained a permanent record of her findings in the form of photo documentation so as to allow a second opinion to be obtained. Further, her observations were inconsistent. It was inconsistent to assert that the hymenal tissue was absent and yet at the same time describe the notch at 9 o'clock and the fleshy tissue at 6 o'clock. She took the view that the apparent size of the hymenal orifice at 1.2 centimetres was not outside the range of normal and was well below the diameter of an erect adult penis. In particular she drew attention in that report to a feature she had originally referred to in preliminary notes in which she said that the anatomy of a girl going through puberty is not well understood and evaluation is difficult. She repeated that in her report, drawing attention to the fact that in puberty the hymen changes quite dramatically and that it is extremely difficult to evaluate the hymen in a child going through puberty. That was of particular relevance in this case since, as Dr Bhattacharyya had recorded back in December of 2003, the complainant had at least started on puberty since she was recorded to have reached stage 3 so far as her breast development was noted and stage 2 so far as her pubic hair. Thus puberty had begun in December 2003.[10]Sensibly, Dr Roberts, having made those trenchant criticisms, recommended that a joint examination by both herself and Dr Bhattacharyya should take place. She had noted additionally the complaints of the complainant which a General Practitioner had recorded of genital bleeding, possibly due to an infection or threadworms back in the year 2000. However, when it came to the joint examination eleven months after the original examination, the findings were powerfully adverse to the applicant. A record of the joint report for the jury recorded:
"We are agreed about the following findings:- 1. The hymenal orifice was gaping open on first inspection, with the vaginal walls easily seen. 2. The hymen was attenuated ie partly rubbed away with a thin rim of margin left. 3. The hymenal tissue had two notches at the 2 to 3 and 9 o'clock positions at the sides and a fleshy bump at the 6 o'clock position. 4. The vagina would admit two fingers with ease. OPINION We are agreed that the findings are not normal. They show that the vagina has been penetrated by an object the size of an erect penis on a number of occasions. It is not possible to say how many times such acts have occurred nor the timescale involved."
Thus the trial was conducted on the basis that that young complainant had been raped and the issue was whether the prosecution could make the jury sure that it was this applicant. The jury was sure that it was.[11]Since the agreed evidence of the experts had been obtained, a fresh team of lawyers, some years after that conviction, has obtained further evidence from a distinguished Consultant Paediatrician, Dr Stimmler. He is, among other things, Consultant Emeritus Paediatrician at Guys Hospital. We heard from that witness who gave evidence in accordance with a number of medical reports he had prepared. We received his evidence without reaching any concluded view as to whether the provisions of section 23 of the Criminal Appeal Act 1968 were made out or as to whether permission ought to be given.[12]The crux of Dr Stimmler's evidence was that there was no or no sufficient basis for the conclusion of the two doctors which was accepted at trial that the complainant had suffered penetration by an object the size of an erect penis on a number of occasions. The starting point of Dr Stimmler's evidence was to draw attention to the differences in the observations between the time of the first examination by Dr Bhattacharyya on 22nd December 2003 and the joint examination by that doctor and Dr Roberts eleven months later, shortly before the first trial. In his first report dated 21st July 2007 he recorded what he described as the differences. He said that the hymen was attenuated, ie partly rubbed away with a thin rim of margin left, which was not a feature mentioned at the time of the first examination. Secondly, there were two notches noted on the hymenal rim, one between the 2 o'clock and 3 o'clock position and one at 9 o'clock, whereas on the first examination only one notch at 9 o'clock had been observed. Thirdly, on the examination eleven months later the vagina could admit two fingers with ease. He described those differences as "marked".[13]He then went on to consider the reason for what he described as those marked differences. He took the view that whilst it was a possibility that Dr Bhattacharyya failed to observe the two notches or the remnants of the rim of the hymenal membrane, that was unlikely in a paediatrician as experienced as Dr Bhattacharyya.[14]He had an alternative and he believed more likely explanation, namely that having regard to the stage of puberty the complainant had reached after the first examination the changes could be ascribed to the developmental changes as she reached a later stage of puberty, all the more so since by that time it appears she had started to menstruate. The alternative possibility was that the reason for those marked differences was that she had been abused by someone else during that period of 11 months. This could not have been the applicant who was, during that period, in custody. Furthermore, he took the view that the condition of the hymen at the time of the second examination was not supportive of her account that she had been raped. This was in the main because the state of scientific knowledge is such that there has been an insufficient study of the condition of the hymen in cases of girls who had reached puberty. He said:
"There have been many reports on the appearance of the hymen in sexually abused children. There have been relatively few reports of the appearance of the hymen in normal girls."
That is for obvious reasons since, absent allegations of abuse, any doctor would be most reluctant to invade the privacy of a girl of that age.[15]In support of that evidence he drew attention to the results of findings in relation to physical signs of abuse available both at the time of the trial and as a result of more extensive material obtained since. In relation to the notches he drew attention to a number of expert sources which described the appearance of notches in girls who undoubtedly had not suffered sexual abuse. He also referred to an important study in 1987 by Dr Emans and other doctors which described attenuated hymen in 18 per cent of the 305 girls studied who had been sexually abused. Only four per cent of the girls who had no history of sexual abuse or any genital problems were found to have an attenuated hymen, whereas 17 per cent of girls who had not been abused had an attenuated hymen when it was discovered they had suffered from genital symptoms. He, therefore, drew attention to the fact that this complainant with her genital symptoms recorded by the doctor back in 2000 fell within that range of the 17 per cent of girls. He thus concluded that the joint report on the basis of which the first trial had been conducted had relied upon features which were incorrect. The features of the notches at 2 to 3 o'clock and at 9 o'clock were not features which would support the finding reached by those doctors. Further, the gaping orifice and the ability to insert two fingers was, in the light of the reports which he examined, also not diagnostic and not supportive of the conclusion. His essential point was that no study had been undertaken of normal girls and thus, as he emphasised in his oral evidence before us, there was no control. One could not say that the orifice and condition of the hymen demonstrated sexual abuse consisting of penetration with an object of the dimensions of an erect penis when no-one could say whether that condition of the hymen was to be found in cases of girls in puberty who were accepted not to have suffered such penetration.[16]The service of Dr Stimmler's report led to two further reports being obtained from doctors on behalf of the Crown. First, the doctor who had originally examined the complainant, Dr Bhattacharyya. She took the view that there had been no difference in the condition between the two examinations, whilst accepting that she had been faced with difficulties when she made her first report. She ascribed the discrepancies in part to the need to write for the purposes of Social Services and the police. The Crown relied upon another eminent Paediatrician, Dr Aziz, who supported the findings both of Dr Roberts and of Dr Bhattacharyya.[17]This prompted three further supplementary reports from Dr Stimmler. The second report again emphasised the absence of knowledge relating to pubertal girls to which Dr Roberts had originally alluded. He concluded in that report that whilst the evidence of the alleged victim should be taken very seriously, "I would disagree with Dr Aziz that one can confidently state a pubertal girl has been sexually abused based on findings where so little is known about the hymenal appearances in non-abused girls at [the complainant's] level of puberty." Again in a third report dated 29th April 2008 he stated that there was no significance in the notches either laterally or anteriorally in the hymenal region. He cited a number of studies of notches found both anteriorally and laterally on the hymenal rim which had no impact upon the diagnosis that the child had been sexually abused - see for example the study by Heger and others in March 1992. He also referred to the report of Chacko and other authors in the American Journal of Obstetrics and Gynaecology, 2000, 182, a case control study of anatomic changes resulting from sexual abuse. Notches had been observed in a number of non-abused subjects, although notches extending more than 50 per cent through the hymenal membrane were detected in only two children, both of whom had been abused. He drew attention to the conclusion of the article:
"... the genital examination of the abused child rarely differs from that of the non-abused child, but legal experts should focus on the child history as the primary evidence of abuse."
As to the ability to insert two fingers easily, he drew attention again to the absence of any evidence as to the ability to do that in relation to children who had not been abused.[18]In his latest report dated 10th July 2008 he remarked upon the difficulty in drawing anything from evidence as to the width of the membrane (that is the distance between the vaginal walls and the orifice) absent any precise measurement. This he accepted was a very difficult task and there was insufficient evidence as to its significance. The importance of that latest report was in the emphasis it lay on the up-to-date evidence of the physical signs of child sexual abuse published by the Royal College of Paediatrics and Child Health. In that report attention is drawn to the lack of studies in respect of pubertal girls so far as the appearance of their genitalia. In particular under the key messages in Chapter 4 he drew attention to the fact that there are no studies reporting hymenal width in sexually abused pubertal girls meeting the study inclusion criteria. Accurate measurements in relation to the posterior margin, the important area for the purposes of diagnosis of sexual abuse was difficult. He relied in particular upon the evidence statement: "There is insufficient evidence from studies of pubertal girls to assess whether a 'narrow' posterior hymenal width is seen more often in sexually abused than non-abused girls." (p53) That report is of undoubted importance because it is the product of more research and greater experience than at the time at which the original examinations were conducted.[19]We heard, besides hearing evidence from Dr Stimmler, from Dr Bhattacharyya and Dr Aziz. The only feature of their evidence to which we should draw attention is the fact that Dr Aziz asserted that it appeared that the fact of observation of the notch at 9 o'clock in hymenal membrane which had been rubbed away suggested that that notch did extend to more than 50 per cent of the width of the hymen. She found that that was of significance since there were undoubtedly publications which drew attention to a feature such as that, in particular the Medical and Laboratory Findings: A 2005 Revision, published in America by Joyce Adams under the heading "Approach to the Interpretation of Medical and Laboratory Findings in Suspected Child Sexual Abuse." In that publication the condition as Dr Aziz described it of the notch through more than 50 per cent of the width of the posterior hymen did establish an indeterminate finding of sexual abuse, but should be coupled with what she described as the missing segment of hymenal tissue which in that paper was described as an injury indicative of abuse. She also took the view that the ability to insert two fingers with ease demonstrated penile penetration even in a pubertal girl, coupled with the evidence of the narrowing of the hymen. In support of that conclusion she referred to the article which was a critique on the relevant literature by Goodyear and Smith, Medical Science Law 1998, 38, No 4 at page 298 under the heading:
"What is an intact hymen?"
That article says that a hymenal opening easily accommodating two fingers with evidence of a hymenal deficit or scarring at the 6 o'clock position indicates past penetration. She was not however aware that the complainant had started to menstruate.[20]We found Dr Stimmler to be an impressive witness and we accept his evidence, but it is important that in seeking to draw the appropriate conclusions from that evidence we remind ourselves of the correct approach of this court to such evidence. The receipt of evidence not called at the trial depends upon our judgment as to whether it is necessary or expedient to do so in the interests of justice - see section 23(1) of the 1968 Act. In determining whether we should receive the evidence we must have regard to the four issues identified in section 23(2). As so often, it was not possible for the purposes of subsection (2)(a) to say whether Dr Stimmler's evidence was capable of belief without hearing that expert witness. In the instant appeal it is plain that his evidence was capable of belief, indeed we believe it was credible and plainly admissible. Indeed we believe it and it was plainly admissible. The other two criteria, namely whether there was an explanation and whether it was reasonable under subsection (2)(d), posed greater difficulties. The test whether an explanation is reasonable is not always easy to apply. The reasonableness of the explanation probably depends upon a quite separate question of the court's view of the cogency and impact of the fresh evidence. Courts will be driven by a desire to act in the interests of justice and will not therefore exclude evidence which may have an important impact on the safety of the verdict merely because that evidence might have been obtained earlier. But nevertheless, caution is needed lest the appeal amounts to no more than an attempt to have a second go.[21]The explanation why Dr Stimmler's evidence was not called at the trial is clear. Defence counsel properly obtained the evidence of Dr Roberts. This cast doubt on the propriety and cogency of the first report of Dr Bhattacharyya because it was not in accordance with the guidance at the time and was internally inconsistent. But when Dr Roberts sensibly suggested a joint examination, that recommendation was rightly followed. The evidence obtained as a result was damning. In particular it was obvious, as the solicitors then acting for the applicant now say, that the defence could not call Dr Roberts. It was suggested by counsel now acting for the applicant, Mr Thorogood, that counsel at the trial might have queried the difference in Dr Bhattacharyya's findings between the first and second examination. But faced with the evidence of his own expert he could not possibly have been expected to do so. It is also important to observe that had trial counsel sought to obtain another expert there was no basis upon which the court could have allowed him to do so. The criminal justice system must allow a fair opportunity for defendants to obtain expert evidence by which to challenge that which is advanced by the prosecution: fairness and equality of arms requires no less, either at common law or by virtue of the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights. But that right does not include a right to be able to jettison evidence of an apparently eminent and conscientious expert to search for another who might prove favourable to the defence. The criminal justice system requires trial by jury and not a second trial by judges in the Court of Appeal - see R v Pendleton [2002] 1 WLR 72 at paragraph 17. Our criminal justice system seeks to confine determination of guilt or innocence to one go in which the prosecution attempts to establish the guilt of the defendant in front of a jury. It does not, without a ground of appeal that has an impact on the safety of the verdict, permit a convicted defendant to have a second go in front of the Court of Appeal with the possibility of a retrial because a new team of lawyers thinks that it might do better in front of a court which did not see the witnesses and cannot recapture the feel of the trial, or even better, in front of a second jury. Finality following the verdict of the jury is important, not least in a case where a young girl has given evidence and is no doubt seeking, with her family, to put behind her the events which that evidence describes.[22]Finality is not of course always possibility. Fresh evidence not available at the trial capable of casting doubt on the safety of the verdict may emerge some years later. Justice may demand the admission of that evidence and from time to time a retrial in the light of that evidence. The approach of the court to such evidence was explained in Dial and another and the State of Trinidad and Tobago [2005] UKPC 4 [2005] 1 WLR 1660 in the speech of Lord Brown at paragraphs 31 and 32. He cited Judge LJ (as he then was) in R v Hakala [2002] EWCA Crim. 730 at paragraph 11:
"However the safety of the appellant's convictions is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe."
We draw attention to Dial and in particular its adoption in the case of R v Harris [2006] 1 Cr.App.R 5, page 55, none of which were cited to us. We draw attention to Harris because it is of particular relevance and importance in this case since it concerned a revised scientific view as to the diagnosis of non-accidental head injury. That which had previously been thought to be diagnostic of such injury was by the time of the appeals with which it was concerned no longer regarded as a particularly reliable indication. The court emphasised caution needed in relation to scientific evidence of the commission of a crime susceptible, as such evidence is, to changing research and consequential revision. This was emphasised in R v Cannings [2004] 2 Cr.App.R 7, page 63, in which it was said:
"We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
[23]In the instant case we unhesitatingly reject any criticism of the defence team at trial. It was wrong of the new team to attempt such criticism in asserting that counsel ought to have questioned discrepancies between the first and second examination. It was said that he was in error not to pursue an explanation. But trial counsel and the applicant's solicitors at the time had obtained a report from a distinguished expert who had herself raised questions as to the first examination but had reached a clear and independent view that the girl had been penetrated. Counsel could not have exploited Dr Roberts' doubts as to the first examination without also exposing her conclusion. If he had tried to do so any prosecution with their wits about them would probably have called Dr Roberts themselves.[24]We must now consider the fresh evidence, particularly in the light of our judgment of Dr Stimmler and the latest guidance in 2008. We say at the outset, as we have already indicated, that we found Dr Stimmler to be a truthful and reliable witness. But our task is to examine to what extent his evidence, taken with the evidence before the jury, has an impact on the safety of the verdict. In our view his evidence does undermine to some extent the agreed evidence given by doctors Bhattacharyya and Roberts. The reliance on the two notches at 2 to 3 o'clock missed at the first examination was erroneous. The evidence from Dr Stimmler, now supported by Dr Aziz, is that that is not diagnostic. It should not have been referred to as a factor leading to the conclusion. There is perhaps more doubt as to the 9 o'clock notch. That is not an indication, says Dr Stimmler, but it was, says Dr Aziz, because given that the membrane of the hymen had been rubbed away laterally, if that notch was to be observed at all it must have extended to more than 50 per cent of the width of the membrane and was thus diagnostic. That may be so, but if that was the basis upon which reliance was placed on the 9 o'clock notch that should have been made clear in the agreed report and distinguished from the notches at 2 and 3 o'clock.[25]The central criticism relates to the force with which the joint opinion was expressed. We repeat: it was expressed in terms that the features recorded showed that the vagina had been penetrated. Earlier, Dr Roberts herself had expressed concern at the problems of the examination of the hymen in pubertal girls and the absence of controlled examinations in non-abused girls who had reached that stage of puberty. The more recent research to which we have drawn attention in 2008 confirms that problem. Just as in Cannings, the views as expressed in the 2008 evidence-based review and guidance teach the danger of any too firm or dogmatic a conclusion. We draw the conclusion from Dr Stimmler's evidence that doctors examining the hymen of pubertal girls cannot be as sure as the joint report suggested as to the conclusions which may be drawn from the state of a pubertal girl's hymen. Nor is the ease with which two fingers may be inserted itself an indication since the hymen increases in elasticity during puberty. Nothing, however, said by Dr Stimmler radically undermined Dr Aziz's reliance upon the combination of the ease with which those two fingers could be inserted, coupled with the absence of the hymen.[26]On the basis of Dr Stimmler's evidence we are prepared to go this far. We conclude that the report at trial was too dogmatic and that in the light of the more recent accumulation of evidence, on which the March 2008 review is based, the conclusion ought to have been that the evidence was consistent with the complainant's account of rape on a number of occasions, but no more.[27]Where then does that leave the safety of the verdict? We reject the suggestion advanced by Mr Thorogood, now acting for the applicant, based on R v Fulton [2007] EWCA Crim. 2787. In that case the court appeared to have allowed an appeal because fresh expert evidence had cast doubt upon the evidence originally given as to sexual abuse. But it is obvious from the terms of the judgment that the point was never argued. There is no discussion of the facts or the circumstances whatever. We doubt whether that case has any precedential value whatever and it ought not to be used again for that purpose.[28]As the case study to which we have already drawn attention, American Journal of Obstetrics and Gynaecology 2000 by Chacko and others points out, the most reliable source of evidence of sexual abuse is the complainant herself and a conclusion must be reached as a result of an assessment of her evidence. As counsel who was there at the trial doing his best on behalf of this applicant points out, she was an impressive witness. We can do no better than to quote him. She presented as "a bright, articulate and well-adjusted girl. As the prosecutor emphasized, it would have had to have been an Oscar-winning performance neatly choreographed with her mother in the composition of the disclosure note. She stood up to cross-examination with, if anything, an enhanced credibility." Nothing in Dr Stimmler's evidence undermines the account of that complainant. On the contrary, it confirms that the medical evidence was consistent with what she said. We conclude accordingly that the fresh evidence which we have admitted does not undermine the safety of the verdict.[29]Turning then to the other ground which was in reality consequential on the first. There was evidence that suggested that the 15-or-so-year-old brother of the complainant had accessed child pornography on the computer in the house where the complainant and this applicant lived. That evidence was disclosed properly to the defence. It was not deployed by defence counsel who had, by the time he was asked, no recollection of it. This was not surprising given the lapse of time between the trial and being asked to recall in April 2007, over two years later. This again demonstrates the undesirability of seeking to mount an appeal on the basis of unjustified criticism of the original defence team. Defence counsel suggests that if he had had it in mind it ought to have been deployed, but does not explain how. In our view the failure to deploy that material does not touch upon the safety of the verdict at all. If the evidence of Dr Stimmler undermined the complainant's evidence the appeal would be quashed. If it does not, it does not affect her evidence that her brother had access to pornography, particularly child pornography. It is a quite unjustifiable leap from the proposition that the brother who accessed such pornography to a proposition that he had raped her and was responsible for the condition of her genitals as examined. Nor does it explain why she chose to blame her stepfather to whom she had remained loyal throughout the first trial and not to her brother.[30]There is one other factor which shows that the reliance upon that material founds a wholly impossible submission. That is this applicant's previous conviction. With great skill and the agreement of the defendant, defence counsel secured that that was never disclosed to the jury. By the second trial it could have been, but by some concession (the reason for which is not wholly clear) the prosecution agreed not to deploy it at the second trial. But it was devastating evidence. We have already described the nature of how it came to light. Had it been revealed it would undoubtedly have had a powerful impact on the jury. Counsel for the defence was right to do his utmost to exclude that evidence. Had he suggested in any way that the brother was responsible it would have been inevitable that the jury would have been told of that conviction. In any event, it is not clear how the evidence of the access of that young boy to that pornography was admissible. It is difficult to see how a trial judge could have allowed it. Furthermore, the defendant knew of the fact that child pornography had been found on a computer in his house and he had never sought to persuade his counsel that it should be admitted. He must have appreciated that if it was not him someone else who had access to the computer had obtained that pornography and the only probable culprit was the brother of the complainant. For that reason too we reject the suggestion that this material touches upon the safety of the verdict at all and we reject that ground of appeal.[31]Having regard to the cogency of Dr Stimmler's evidence, we shall give leave to appeal but for the reasons we have given we shall dismiss it.[32]We cannot leave this appeal without two further observations. Again we repeat it was wrong to seek to found an appeal on the unjustified criticism of the former defence team. For the reasons we have given no criticism was justified. A fresh team of lawyers instructed after a conviction for the appeal must be astute not to mount such criticism unless there is clear evidence or material to justify it. There was none in this case. The dangerous course adopted by the new team is to be deprecated. It raises unjustified hopes in the mind of an applicant and is likely to cause strong and lamentable fears in the minds of victims who will dread the thought of reliving the ordeal many may have hoped to put behind them. Further, it undermines the criminal justice system. It is unacceptable that in the difficult and important task of defending, solicitors and counsel should have to conduct that onerous responsibility in the fear that, possibly many years later, a new team of lawyers not there and never faced with the difficulties that the original team faced at trial will require them to dredge their memories faced with criticism of their conduct. Fortunately the challenges in this case merely strengthened the prosecution case.[33]The second observation we make relates to the expert evidence and relates to the importance of recognising that the criminal justice system does not allow two trials, first by a jury with one team of lawyers and secondly, possibly years later in the Court of Appeal, by a second who have managed to find an expert who would have said something different had that expert been called at the trial. The time to deploy expert assistance is at trial and not later. Of course there will be cases where the Court of Appeal will out of justice admit and rely upon evidence which might have been obtained at trial but was not, when that evidence falsifies and destroys the basis on which the earlier conviction was obtained. Justice may demand no less and many serious injustices by that means have been cured in the past, all the more so where scientific research and thought has developed. But that fresh evidence must have the impact which the statutory jurisdiction of this court dictates. It must be such as to undermine the safety of the verdict. It is not sufficient that it merely demonstrates that the original evidence from experts might have been assessed in a different way or a different conclusion on the expert evidence part of the case might have been reached unless it strikes at the fundamental basis upon which the verdict rested. This case is a good example. The evidence of Dr Stimmler did affect the conclusion of the joint experts at trial. It showed that their conclusion was more dogmatic than it should have been, but it did not undermine the girl's evidence. She was credible; the jury found she was telling the truth and the expert evidence was consistent with her account. The appeal is dismissed.

Cited in 3 later judgments