Larkin, R. v [2010] EWCA Crim 2850

[2010] EWCA Crim 2850Case No 2010/00300/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 19 November 2010
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE JACKSON
MR JUSTICE RAMSEY
and
HIS HONOUR JUDGE JOHN MILFORD QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
__________________
- v -
Between
CARL JAMES LARKIN__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)__________________Mr P Roche appeared for ApplicantMr P Davies appeared for Crown____________________J U D G M E N T
[1]This judgement is in seven parts, namely: Part 1. Introduction, Part 2. The Facts, Part 3. The Criminal Proceedings, Part 4. The Appeal to the Court of Appeal, Part 5. The Appeal in Respect of the Pupil Log, Part 6. The Two Applications for Leave to Appeal, Part 7. Conclusion. Part 1. Introduction[2]This is an appeal against conviction in respect of two offences of sexual activity with a child. The complainant is a teenage girl to whom we shall refer as "K". The appellant is a man in his forties. We shall refer to the complainant's mother as "Mrs B", and to her stepfather as "Mr B". After these brief introductory remarks, we must now turn to the facts.

Part 2. The Facts

[3]The complainant, K, was born on 7 April 1994. She was aged 14 at the time of the events which are the subject of this appeal. K lived with her mother, stepfather, brother and two sisters in a house in Merseyside. K's aunt lived with or near the family. The appellant was a trusted friend of the family.[4]On Saturday 12 April 2008, K's mother married Mr B. Mr and Mrs B went off for a two week honeymoon on Monday 14 April. The appellant attended the wedding. He stayed at Mr and Mrs B's house during at least part of the next fortnight in order to help look after the children.[5]K alleges, and the appellant denies, that the appellant had sexual intercourse with her on two occasions during that fortnight. The first occasion was on the morning of Monday 21 April, before K went to school. The second occasion was on the morning of Wednesday 23 April, before K went to school.[6]K first reported these matters to someone in authority on 22 May 2008. On this date K told a teacher who was her head of year at school about the incidents. On 27 May K was interviewed by a police officer at Wirral Family Crime investigation Unit.[7]The account which K gave in interview was as follows. On the evening of the wedding the appellant first made sexual approaches to her. He kissed her that evening and on a number of occasions over the next week. The following weekend K went on a Duke of Edinburgh course. She took the opportunity to have sexual intercourse with another young man on the course who was aged 17. The appellant gave K a lift home in his car on the Sunday evening. During the journey she told the appellant about her encounter over that weekend. The appellant made suggestive remarks to K about what was inside a man's jeans.[8]On the Monday morning K came downstairs early. The appellant proposed sexual intercourse. K agreed. They lay on the floor. The appellant penetrated her vagina with his penis but did not ejaculate. Subsequently, the appellant was cold and distant towards her. He indicated that he loved K's aunt, not K. This put K in a bad mood.[9]On the Wednesday morning K again came downstairs early. She agreed to and did have sexual intercourse with the appellant on the floor. On this occasion, unlike the previous one, the appellant ejaculated.[10]That was the account which K gave in interview on 27 May. On the following day police officers arrested the appellant and interviewed him about K's allegations. The appellant denied all those allegations and asserted that he had never made any improper sexual approaches to K.[11]The prosecuting authorities did not accept the appellant's assertion in interview. Accordingly they commenced the present criminal proceedings.

Part 3. The Criminal Proceedings

[12]The appellant was charged with two counts of sexual activity with a child contrary to section 9(1) of the Sexual Offences Act 2003. Count 1 related to the incident on Monday 21 April. Count 2 related to the incident on Wednesday 23 April. The charge was framed as sexual activity with a child, rather than rape, so that the prosecution did not need to prove all of the elements of rape. From time to time the complainant's allegations are referred to as sexual intercourse, because the complainant's case is that there was penetration.[13]The appellant stood trial before Judge Lyon and a jury at the Liverpool Crown Court in June and July 2009. The jury was unable to reach agreement and a retrial was ordered.[14]The retrial took place before Judge Lyon and a jury at the Liverpool Crown Court in November and December 2009. At both the trial and the retrial the DVD of K's interview was played to the jury. This constituted most but not all of K's evidence in chief. The case which defence counsel put in cross-examination was that none of the alleged sexual misconduct had occurred. In relation to the evening of Sunday 20 April, it was accepted at the first trial that the appellant had given K a lift home in his car. It was denied, however, that the appellant had made any improper sexual comments during the journey. In relation to the mornings of 21 and 22 April, it was accepted at both trials that the appellant was living at K's home on those dates, looking after the children. Indeed, it was accepted that the appellant was the only adult living in the house on those dates, because K's aunt was on a short trip to Ireland and K's parents were away on honeymoon. However, it was denied that the appellant had any sexual contact with K on either of those mornings.[15]During the first trial defence counsel put a Pupil Log to K in cross-examination. This Pupil Log recorded K's conduct at school on the morning of Monday 21 April. On that date a teacher made the following entry in the log:
"Arrived already 'mouthing off'. Criticised me in front of the group. Continued to 'witter' on -- not drawing breath -- and stopped me from beginning lesson. Her manner towards me is rude, disrespectful and defiant."
The purpose of this cross-examination was to rebut K's evidence at the first trial that she was quiet at school on 21 April because of her sexual encounter earlier that morning. K's response in cross-examination was that this log recorded her behaviour towards teachers, not towards her friends and other pupils. K also made the point that she was usually lively and bubbly rather than "mouthing off" at teachers, so her behaviour was different that day.[16]At the retrial defence counsel once more sought to put the Pupil Log to K in cross-examination. However, prosecution counsel objected saying that this piece of evidence was intended to undermine K's credit as a witness. The judge concluded that the Pupil Log was not relevant to the issues in the case. He did not allow the log to be put in cross-examination. However, the judge ruled that counsel could put in cross-examination that K had acted in the same way on 21 April as on other occasions.[17]At both the trial and the retrial, the appellant gave evidence. He denied any improper sexual contact with K. His evidence was entirely consistent with what he had said to the police when he was interviewed on 28 May 2008.[18]On 3 December 2009, at the end of the retrial, the judge summed up the case. On 4 December 2009, the jury returned verdicts of guilty on both counts by a majority of 10:2. On 15 January 2010, the judge sentenced the appellant to five years imprisonment on each count concurrent and disqualified him from working with children.[19]The appellant was aggrieved by the judge's ruling in relation to the Pupil Log and maintained that his conviction was unsafe. Accordingly, he appealed to the Court of Appeal.

Part 4. The Appeal to the Court of Appeal

[20]The appellant applied to the Court of Appeal for leave to appeal on two grounds. The first ground was that the judge erred in ruling that K could not be cross-examined on the Pupil Log. The second ground was that fresh evidence was now available which undermined K's assertion that the appellant had given her a lift home on Sunday 20 April.[21]The single judge, who considered this case on the papers, granted leave to appeal on the first ground, although he expressed strong reservations about the prospects of success. He refused leave on the second ground.[22]At the hearing of the appeal today the appellant renews his application for leave to appeal on ground 2. He also seeks to add a third ground, namely, that the judge failed properly to put the defence case in his summing-up.[23]Before dealing with those two applications, we must first deal with the appeal relating to the Pupil Log.

Part 5. The Appeal in Respect of the Pupil Log

[24]Mr Roche began by drawing attention to K's evidence that the appellant said he was thinking of the aunt when having sexual intercourse with K, and this put K in a bad mood. In relation to this issue it is necessary to examine K's evidence. It can be seen from the transcript of her interview that K's evidence about being in a bad mood relates to the Tuesday. Therefore this does not bear on the relevance or admissibility of the Pupil Log for Monday 21 April. Indeed, Mr Roche very fairly conceded this point when we went through the transcript during argument.[25]Mr Roche then took us to the transcript of K's cross-examination during the first trial, where the Pupil Log was put in evidence. It can be seen from that transcript that K made two points in cross-examination about the Pupil Log. First, she maintained that her behaviour at school was different that day from normal. Instead of being jolly and bubbly as usual, she was "mouthing off" to the teachers. Secondly, she made the point that the Pupil Log only related to her conduct towards teachers. She maintained that to other pupils and friends she was quiet that day. Mr Roche submitted that the appellant's case was prejudiced during the retrial because the Pupil Log was not before the jury. In argument Ramsey J pointed out that the judge's ruling permitted defence counsel to cross-examine K about her behaviour on 21 April. Prosecution counsel confirmed that Mr Ackerley (who was then defence counsel) had indeed done so.[26]Mr Roche accepted, as the argument proceeded, that he could not pursue this ground of appeal on the material currently before the court. He therefore applied for an adjournment in order to obtain a transcript of K's evidence given during the retrial. Mr Roche submitted that such a transcript may reveal that K gave evidence inconsistent with the Pupil Log.[27]Prosecution counsel, Mr Davies, who appears in this court and appeared in the court below at the trial and retrial, opposed the application for an adjournment. He pointed out that there was no renewed application at the retrial to put the Pupil Log in evidence. If K had given evidence at the retrial inconsistent with the Pupil Log, the prosecution could not have resisted a renewed application to put the Pupil Log in evidence. Mr Davies also submitted that the contents of the Pupil Log were peripheral to the real issue in the trial. The real issue was whether or not the appellant had sexual intercourse with K on the mornings of 21 and 23 April.[28]We came to the conclusion that both of Mr Davies' arguments were well-founded. We noted that no attempt had been made hitherto to obtain a transcript of K's evidence at the retrial in support of the first ground of appeal, even though leave was granted in relation to that ground. We saw no sensible basis for concluding that adjourning in order to obtain a transcript would enable the appellant to succeed on ground 1. We also took the view that even if K's evidence was inconsistent with the Pupil Log for 21 April 2008, this would not shed light on the question of whether the appellant had had sexual intercourse with K on 21 April. In those circumstances we refused the application for an adjournment.[29]Following that decision in relation to adjournment, Mr Roche conceded that he could not succeed on ground 1 on the material which is currently before this court. Accordingly, the appellant abandoned the appeal on ground 1. We therefore dismiss that ground of appeal.

Part 6. The Two Applications for Leave to Appeal

[30]The first application for leave to appeal relates to the second ground set out in the Notice of Appeal. The appellant seeks leave to adduce fresh evidence that he did not attend a training course at Nesscliff on the weekend of 18 to 20 April 2008. Mr Roche submits that this evidence is important because K asserted that the appellant gave her a lift when he was returning from a cadet camp and she was returning from her Duke of Edinburgh weekend course.[31]Mr Roche draws our attention to K's evidence on the seventh page of the DVD interview transcript. At the bottom of that page K said that she was away on a Duke of Edinburgh course and that the appellant was on a cadet course that weekend. She says that the appellant gave her a lift home. K explained later in that interview that she went on another Duke of Edinburgh weekend course on the weekend of 25 to 27 April. Mr Roche submits that the appellant must have given K a lift home on 27 April. Therefore the appellant cannot have had any sexual conversation with K in the car before the two alleged incidents.[32]There are many difficulties with this line of argument. First, it can be seen from the transcript of the first trial that it was the appellant's case that he gave K a lift home on the evenings of both Sunday 20 April and Sunday 27 April. In relation to the first weekend, the cross-examination of K includes the following passage:
"Q. When you came back from that Duke of Edinburgh weekend you were collected by Carl Larkin, weren't you? A. Yeah."
In relation to the following weekend the cross-examination reads as follows:
"Q. But the weekend just before your mum and dad came back, I think you went away for another camp, didn't you? A. Yeah, I think it was my second qualifying Duke of Edinburgh. Q. And you waited to get a lift home from Carl Larkin that weekend as well, didn't you, because I think you had been on a different course as well that weekend from him? A. Yeah."
It would have been perfectly possible for the appellant and his representatives to obtain evidence about when the appellant went to cadet camps at Nesscliff at both the first trial and the second trial if such evidence was thought to be helpful. In the course of the appellant's oral evidence he expressed some confusion about the dates of his cadet camps. However, he did not give evidence that K returned home on Sunday 20 April by some other means. Sunday 20 April was a date when the appellant was the sole adult living at K's home since K's aunt and her parents were away. The appellant was the only person responsible for the care of the appellant, her brother and her sisters on that day.[33]Section 23 of the Criminal Appeal Act 1968 provides that the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice, receive any evidence which was not adduced in the hearing below. Subsection (2) provides:
"The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -- (a)whether the evidence appears to the Court to be capable of belief; (b)whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c)whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d)whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
[34]In our view there is no reasonable explanation for the failure to adduce evidence about the dates when the appellant attended cadet camps at Nesscliff either at the trial or the retrial, if such evidence was thought relevant. Furthermore, we do not think that such evidence would afford any ground for allowing the appeal. Even if the appellant was not at a training camp at Nesscliff on the earlier weekend, it by no means follows that he did not give K a lift home. Furthermore, there is a separate point of some importance. The conversation between the appellant and K on the evening of 20 April is of only limited relevance to the issues in the case. Those issues are whether or not the appellant and K had sexual intercourse on the mornings of 21 and 23 April. We therefore refuse the application to adduce fresh evidence and we dismiss the application for leave to appeal on the second ground in the Notice of Appeal. We are in agreement with the single judge on that issue.[35]We turn to the second application for leave to appeal. It relates to a new ground which does not feature in the Notice of Appeal. It is a ground which the appellant seeks to introduce today by way of amendment to his Notice of Appeal. This ground is that the judge failed properly to summarise the appellant's evidence in the summing-up. We accept that the summing-up is short in relation to the facts. We also accept that in the summing-up more time was devoted to K's evidence than to that of the appellant. However, there are references to what the appellant says about matters in the judge's summing up of K's evidence. The judge's summary of the appellant's evidence is concise but it covers the main points. Importantly, in the course of that section of the summing-up the judge said:
"The defendant was interviewed and you have the detailed interview before you. You can read the interview when you retire to consider your verdict. As Mr Ackerley has said to you, it is clear that what is said in that interview is basically what the defendant has said to you from the witness box ...."
[36]In his submissions Mr Roche accepted that the jury had a transcript of the appellant's interview. He submitted that two aspects of the appellant's evidence were not mentioned in the interview. The first aspect was the close relationship which the appellant had with K's aunt. The second aspect was the fact that the appellant was in a sexual relationship with Donna Pearson. We accept that these two matters, which no doubt featured in the appellant's evidence, were not dealt with in the appellant's interview. On the other hand, both of these matters are dealt with by the judge in his summing-up. At page 4 of the summing-up the judge draws attention to the fact that Donna Pearson was in a sexual relationship with the appellant which started at around the time of the two alleged offences. On the following page of his summing-up the judge expressly refers to the fact that the appellant had a crush on K's aunt. That is consistent with the oral evidence which the appellant had given.[37]The jury therefore had before them a record of interview, which set out the appellant's account of events and which was consistent with the evidence that the appellant gave in the witness box. The judge directed the jury's attention to that written interview record, which the jury would have had with them in their retiring room. The judge also expressly referred in his summing-up to the two matters which Mr Roche draws to our attention, which featured in the appellant's evidence but did not feature in the record of interview. In the circumstances we do not think that this proposed new ground of appeal based upon inadequacies of the summing-up has any prospect of success.

Part 7. Conclusion

[38]Let us now draw the threads together. For the reasons set out in Part 5 above, this appeal is dismissed. For the reasons set out in Part 6 above, both of the appellant's applications for leave to appeal, and in one instance for leave to adduce fresh evidence, are refused. ________________________________