Solomons v R. [2011] EWCA Crim 1

[2011] EWCA Crim 1Case No 200906061 D4IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Crown Court at Harrow before HHJ Dangor on 19th October 2009
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/01/2011
Before
LORD JUSTICE PITCHFORDMR JUSTICE SWEENEYMRS JUSTICE SLADE DBE
Between
ALAN SOLOMONSAppellantREGINARespondent
Mr B Reece (instructed by Sternberg Reed) for AppellantMr S Brady (instructed by Harrow Borough Unit CPS) for RespondentHearing Hearing date: 29 October 2010
Judgment
[1]The anonymity of the alleged victims is protected by section 1 Sexual Offences Act (Amendment) 1992. It is an offence to publish the name and address of the victim or any matter which might lead to the identification of the victim of any sexual offence listed in section 2 of the Act.[2]The appellant is aged 61. In October 2009 he faced trial at Harrow Crown Court before HHJ Dangor and a jury upon an indictment containing 5 counts alleging historical sexual offences as follows: Count 1: Indecent assault upon LA, a girl under the age of 16 years contrary to section 14 (1) Sexual Offences Act 1956. Count 2: Indecent assault upon SW, a girl under the age of 16 years. Count 3: Indecent assault upon SW, a girl under the age of 16 years. Count 4: Committing an act of gross indecency towards LA, a girl under the age of 16 years, contrary to section 1 (1) Indecency with Children Act 1960. Count 5: Committing an act of gross indecency towards SW, a girl under the age of 16 years.[3]At the conclusion of the prosecution case the judge withdraw count 5 from the jury. The jury returned a verdict of not guilty in respect of count 4 and a verdict of guilty in respect of count 3. They were unable to reach verdicts upon count 1 and count 2 and were discharged. The appellant appeals with leave his conviction upon count 3 on the ground that the verdicts were inconsistent. The principles which govern such an appeal are well known. For present purposes it is sufficient to recall the words of Hutchison LJ in Clarke and Fletcher (unreported 30 July 1998):
“We approach the present case on the basis that it is for the appellant to show (1) that the verdicts are logically inconsistent and (2) that they cannot be sensibly explained in a way which means that the conviction is not unsafe. Thus an appellate court will not conclude that the verdict of guilty is unsafe if, notwithstanding that it is logically inconsistent with another verdict, it is possible to postulate the legitimate train of reasoning which could sensibly account for the inconsistencies.”
[4]For a recent statement of the principles which govern appeals on this ground see Dhillon [2010] EWCA Crim. 1577 at paragraph 33. Mr Reece, who represented the appellant at trial and has presented his appeal to this court relies upon the further statement of principle made by Rose LJ in Bell (unreported 15 May 1997):
“There are, of course, exceptional cases, of which Cilgram [1994] Crim. L.R. 861 provides an example, where a verdict may be quashed because, although there is no logical inconsistency, the particular facts and circumstances of the case render the verdict unsafe. However, it is to be noted that in Cilgram this court, differently constituted, expressly rejected the submission that, where a complainant’s credibility is in issue and her evidence is uncorroborated, guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts in relation to some of the complainant’s allegations.”
[5]At the date of trial, LA and SW were aged about 29. The events which they described in evidence took place when they were aged between about 8 and 12 years. Both of them were childhood friends of the appellant’s daughter, S. LA’s parents were on friendly terms with the appellant and his wife. They belonged to the same ‘gourmet group’ and the appellant handled the accounts of their business. LA and S would visit one another’s houses regularly and occasionally had sleepovers. LA gave evidence that the first offence in time took place on the count 1 occasion. She was aged between 8 and 10 years. She was at the appellant’s home in Hatch End, sitting at a computer with S, when the appellant approached her from behind, placed his arms over her shoulders and pressed hard down on her vaginal area. She said that it had hurt a lot and she screamed. She asked S to help her but she did not. She told her school friend, SL, about the incident when SL was staying at LA’s home. Not knowing how to describe her experience, she told SL that she had been “raped”. She did not know what rape meant but according to LA she went on to describe how the appellant had pinned her down in the chair very hard.[6]SL gave evidence supporting LA’s recollection of the complaint save that she recalled LA would only write down what had happened to her. According to SL, LA wrote “I have been raped” and started to cry. She continued that SL told her that the appellant had touched her “noonie” or her “minnie”. Against LA’s wishes SL told her father what had been said. The father gave evidence that he telephoned LA’s mother to inform her. Nothing further was done. LA’s mother agreed that her reaction to the news was dismissive.[7]Some time later the police attended LA’s and SL’s school to speak about the risk of sexual touching by adults. A form was distributed among the pupils inviting them to tick a box if they had been touched improperly. LA ticked the box. As a result a meeting was called between LA, the head teacher at the school, the police and LA’s parents. No written record of the conversation had survived either at the school or with the police. Again, nothing came of the complaint. LA’s mother told the meeting that her daughter was “a bit of a drama queen”. In her early teenage years LA spent some time in care following a breakdown in her relationship with her mother. She returned home when she was 16. Her complaint was made to the police in 2007 by which time LA had two sons of her own. Her explanation for making her complaint was that she was shown a recent photograph of the appellant with a young girl and decided that she must act to protect any other children with whose company the appellant might be entrusted in future.[8]The second count which concerned LA (count 4 in the indictment) related to a separate occasion when, according to LA, she, S, SW, and possibly another girl, were playing in the garden at the appellant’s home with a garden hose with which they were splashing water. The appellant became involved and the girls chased him into the house. They chased him as far as the main bedroom where, according to LA, a further game took place in which the girls were encouraged to touch the appellant’s penis. She said “somehow the trunks came down. He was trying to turn it into a game as to who could touch his penis”. LA was inconsistent in evidence as to whether she had touched the appellant’s penis. Finally, in cross-examination, she said she thought she had. She explained that only since she had become an adult did she realise that the appellant’s penis had been erect. At the time, LA had thought it was only a game. That is why she had not mentioned it to anyone.[9]When LA made her complaint to the police in 2007 she gave them the name of SW. According to both women, there had been no contact between them during the intervening years. When SW was asked by the police whether she had had any concerns about the appellant, she told them about three incidents which formed counts 2, 3 and 5 in the indictment.[10]It was fairly clear that count 2 concerned the occasion when S, LA and SW were playing in the garden with the hosepipe. SW could remember only one such occasion at which, she agreed, LA was present. It was SW’s recollection that one of the girls sprayed the appellant, who was fully clothed, with water. SW said that the appellant chased and caught each of the girls in turn, inserted the hosepipe down the front of their swimsuits and sprayed their bodies with water. According to SW, the appellant pulled her swimsuit away from the front of her body and inserted the hosepipe so that it came into direct contact with her vagina. She said that the appellant did the same thing to LA.[11]It was a matter for debate at trial whether the incidents represented by counts 3 and 5 occurred on the same day as the water fight in the garden. SW said nothing about an incident in the bedroom which immediately followed the water fight. She did, however, recall an occasion (count 5) when the girls were in the bedroom at the appellant’s home. The girls were playing a game in which they attempted to pull down the appellant’s trousers. SW said that they succeeded to a degree such that she observed the appellant’s “flaccid” penis. This was the incident represented by count 5 in the indictment which the judge subsequently withdrew from the jury on the ground that the jury could not safely conclude that the appellant intended indecency towards the girls.[12]As to count 3, SW gave evidence that as the girls were leaving the bedroom, she was left behind. The appellant caught hold of her and pushed her to the floor. She continued, “…he put his weight on me. He put his hand down my knickers, of my swimsuit or my trousers. I think it was trousers. I was struggling. The other girls had gone out of the room ... he moved around my vagina with his hand. It was quite sore ... I can’t remember if it went inside ... it did not last very long, about 10 seconds. He just stopped and I got away.” Asked why she had not reported the matter to anyone, SW replied “I don’t actually know to be honest. I was with my friends. I thought it was part of a game and I didn’t understand what it was”. SW believed that she was aged between 9 and 12 years when these incidents occurred.[13]When she was crossed examined, SW was asked about a reply made to a question in her ABE interview. She had said, “I can’t remember whether he removed my clothing or he put his arm down. I think he just put his arm in my clothing. At this point I can’t remember whether I was dressed or not in a swimsuit or whether I was ... I feel like I remember him putting it in my jeans, or whatever trousers I was wearing, but I’m not sure if that is definitely true or whether I just imagined it”. Mr Reece challenged SW to the effect that she was saying the whole incident may have been a product of her imagination. She replied that she was only accepting that she may have imagined wearing her clothes rather than a swimsuit. She gave evidence that she could not recall a game when the girls chased the appellant into the house after the water game.[14]The appellant elected not to give evidence. He relied upon the denials made in a prepared statement and in interview under caution that any such indecency had taken place with either of the girls.[15]After deliberating for 5 hours 50 minutes the jury returned with a unanimous verdict of not guilty upon count 4. They received a majority verdict direction from the judge and after deliberating for a total period of 14 hours 26 minutes, they returned with a majority verdict 10/2 of guilty upon count 3. The jury was then discharged from reaching further verdicts. The prosecution has since elected not to seek a retrial on counts 1 and 2.[16]Mr Reece has submitted that the verdict of guilty upon count 3 is logically inconsistent with the verdict of not guilty upon count 4 and even inconsistent with the jury’s inability to reach a verdict on count 2; accordingly, the guilty verdict on count 3 is unsafe. His submission is founded upon the presumption that the jury either did proceed or must have proceeded upon a factual finding that the incidents represented by Counts 2 -5 all took place on the same occasion, associated with the water play in the garden at the appellant’s home. If that is the appropriate way of examining the jury’s verdicts, both LA and SW were present when the Count 2 assault with the hosepipe occurred, when the Count 4 exposure and touching invitation took place, and when they were playing the Count 5 game. Yet, LA was unable to confirm that any indecent assault occurred which was associated with the hosepipe, and she had been unable to confirm that the Count 5 incident occurred at all. Further, SW did not confirm the evidence of LA that any count 4 ‘game’ in swim wear had occurred.[17]The jury did not, however, acquit upon counts 1 and 2. They failed to reach a verdict. It is not possible, in our view, to find inconsistent a verdict which was not returned. As to count 4, it is logically possible that the jury concluded that they could not be sure either that the incident occurred, or if something of the kind did occur, that it was indecent.[18]We do not accept the premise for Mr Reece’s argument that the jury concluded that the count 3 incident took place on the same occasion as the incidents charged in counts 2 and 4. It is, as we have indicated, tolerably clear that counts 2 and 4 both occurred on the only occasion when the girls could recall that they were playing in the appellant’s garden with a hose. If that was correct, it was unsurprising that the jury was having difficulty reconciling the evidence of LA and SW as to the incidents, first in the garden and, second, in the bedroom.[19]The significant feature of SW’s evidence which apparently separated counts 3 and 5 from counts 2 and 4 is SW’s recollection that on the occasions represented by counts 3 and 5 both she and the appellant were fully clothed. In our judgment, it was not a necessary inference that the count 2 – 5 incidents took place on the same occasion and it is highly unlikely that the jury concluded that they did.[20]In support of his argument that the verdict of guilty upon count 3 was unsafe Mr Reece relied upon what might have been an inaccuracy in the judge’s summary of a short passage of the evidence. He said (Transcript page 27 H – 28 A) while reminding the jury of the evidence of LA:
“Somehow the trunks came down. He was trying to make it a game as to who could touch his penis. No, I did not touch it. I can’t remember if I did. We thought it was a game and we were laughing and giggling. We just thought it was a game and went back downstairs.”
[21]At page 30A,

the judge reminded the jury of an answer given in cross-examination:

“We ran out onto the landing to go downstairs. It is not clear that all of us went down together.”
[22]Mr Reece’s instructing solicitor took a note of LA’s evidence to the effect that LA believed that all the girls had descended the stairs together. Mr Reece’s pupil made a note that “they (the girls) all ran down the stairs together (straight down – no-one went into S’s room)”. Mr Brady, who appeared for the respondent, made a note at the time as follows:
“Think we all ran out again – 3 or 4 girls ran out – straight to stairs – didn’t pause to go to S’s room – I think – went downstairs – nothing to suggest that anyone last to leave from room.”
[23]It will be seen that the effect of Mr Brady’s note is similar but not identical to that of the defence team. One was a positive assertion that all the girls went down the stairs together; the other signified an absence of recollection that anyone lagged behind. Mr Reece’s argument is that LA’s evidence was important to his client. If LA had no recollection that any of the girls was detained by the appellant in the bedroom, there must be doubt whether the count 3 incident occurred at all. Contrary to LA’s evidence as recorded, the judge suggested in summing up that LA was unclear whether any of the girls lagged behind the others. We doubt that this inaccuracy in the summing up, if it was an inaccuracy at all, was significant. Had it been significant we would have expected someone to draw it to the attention of the judge at the time. However, for the argument to have any weight at all we would again be required to accept that the jury must have, or should have, concluded that the incidents described by LA (count 4) and SW (count 3) allegedly occurred on the same occasion. We do not accept that premise. As we have said, we think it probable that the jury concluded count 3 took place on another occasion altogether, either later on the day when the girls had been playing with the hose, and the girls and the appellant were fully clothed, or on a different day. We are not persuaded that these verdicts were in any way inconsistent. They are easily explicable upon the basis that SW was describing a discrete occasion which was not inconsistent with the evidence of any other witness.[24]Mr Reece invited us to consider whether, notwithstanding the absence of logical inconsistency, the verdict might nevertheless be regarded as unsafe. He drew our attention to the facts and the judgment in Dhillon. The court was considering the safety of convictions upon a single count of assault by penetration (count 1) and a single count of sexual assault (count 3). The appellant had been acquitted upon counts 2, 4 and 5 which all charged him with sexual offences against the same complainant on the same occasion. After considering the authorities, Elias LJ, delivering the judgment of the court said:
“41. Generally, therefore, in sex cases where it is alleged that different sexual incidents occurred on separate occasions, verdicts will not be inconsistent simply because a jury convicts on some counts and acquits on others, because there is likely to be an obvious legitimate chain of reasoning to explain the verdicts. The jury may be sure that a witness has reliably recalled one incident but remained unsure about another; or they may consider that some incidents are exaggerated or fabricated but not all. There have been numerous cases of this nature where challenges on the basis of inconsistent verdicts have unsurprisingly failed: e.g. R v Bell (unreported 15 May 1997) and R v VV [2004] EWCA Crim. 255. 42. This case does not, however, fall into that category. Here the various alleged offences are simply different facets or acts in the course of a single sexual encounter. In these circumstances, if the jury is unsure of the complainant’s evidence with respect to one count on the grounds that it may be unreliable or lack in credibility, it is likely to be more difficult than it would be with respect to chronologically separate encounters for a jury to be sure that the evidence on the other counts is reliable and credible.”
[25]On the particular facts in Dhillon the court concluded:
“50. It follows that in our view the verdicts were inconsistent and/or perverse. But as we have said that does not of itself demonstrate that they are unsafe. Mr Gritt submitted that even if, contrary to his primary submission, they were inconsistent and/perverse, they constituted what he described as “explicable perversity”
. The issues before the jury were clear; they knew that they had to find that the act described in the count occurred, that there was no consent, and no reasonable belief in consent. The jury took considerable care over their verdicts; they considered them over a period of some six hours. If and to the extent that the verdicts are inconsistent, the evidence suggests that the verdict on count 4 might have been an unjustified acquittal, favourable to the appellant rather than that he was unjustifiably convicted on counts 1 and 3. 51. We see the force of that submission but are not ultimately persuaded by it. We are satisfied that the jury may have approached these counts in the wrong way. They clearly found difficulty reaching a verdict as witnessed by the fact that it was a majority verdict after some 6 hours of deliberation. We think that there is a real risk that in an understandable attempt to reach a verdict, a compromise might have been reached without the necessary majority actually being sure with respect to the two counts where convictions were returned.”[26]Mr Reece endeavoured to persuade us that after a retirement of 14½ hours in a comparatively short trial this jury may have been labouring under a similar pressure. We reject the argument that there are circumstances present here which render the verdict unsafe. We are not surprised that the jury was having difficulty with the evidence because, in some respects, LA and SW were inconsistent in their accounts of occasions at which they were both said to be present. It is, however, significant that the jury’s verdict of guilty in respect of count 3 concerned an occasion upon which the evidence of sexual assault was unequivocal. As we have concluded, the jury’s verdict is further explained by satisfaction that the count 3 occasion was separate from those represented by counts 1, 2 and 4. We have no difficulty understanding how the jury concluded that they must return a verdict of not guilty upon count 4. In the absence of supporting evidence from SW, the jury was not prepared to conclude that the incident was, however it occurred, an occasion of indecency.[27]Far from buckling under the strain of a long retirement, this jury was conscientiously doing its duty. They did not return verdicts on counts 1 and 2 because they could not agree. There is not the slightest indication that the jury was engaged in compromise; the reverse is true. We have examined the summing up with some care. The judge’s directions on the law were accurate and complete. She was particularly careful to point out to the jury the possible disadvantages to the defendant arising from complaints made several years after the event. The jury was explicitly directed to consider those matters when reaching their ultimate conclusion whether the prosecution had proved its case so that they were sure. The jury had the advantage of observing the two complainants give evidence. We see no reason to interfere with the jury’s judgment that, whatever their reservations upon other counts, they were sure the count 3 indecent assault took place as SW described it. For these reasons the appeal will be dismissed.

Cited in 1 later judgment