Davies, R. v [2011] EWCA Crim 1177

[2011] EWCA Crim 1177Case No CA201005980 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
Indictment No: T2009061
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/05/2011
Before
LORD JUSTICE RICHARDSMR JUSTICE RODERICK EVANSTHE RECORDER OF CARDIFF HHJ NICHOLAS COOKE QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
ReginaRespondentJohn Cedric DaviesAppellantMr Glen Carrasco (instructed by the Crown Prosecution Service) for RespondentMr Shaun Murphy (instructed by Edwards Duthie Solicitors) for AppellantHearing Hearing date: 5 th April 2011
Judgment

Publicity

[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences which are the subject matter of this appeal. Nothing should, therefore, be published which is likely to lead to the identification of the victims of these offences and this judgment should be anonymised accordingly.

The Appeal

[2]In October 2010 this appellant stood trial at the Crown Court at Blackfriars before His Honour Judge Martineau and a jury. He faced an indictment which contained six counts alleging indecent assault contrary to Section 14 of the Sexual Offices Act 1956. The complainant was a young girl to whom we shall refer as “V”.[3]The appellant was convicted of Count 1 by a majority of 11 to 1 and of Count 3 by a majority of 10 to 2. The jury acquitted the appellant on Count 5 and failed to reach verdicts on the remaining counts, Counts 2, 4 and 6. The jury was discharged from reaching verdicts on those counts and they were ordered to lie on the file, subject to the usual conditions. On 11th October 2010 he was sentenced on Counts 1 and 3 to concurrent terms of 2 years imprisonment.[4]He appealed against those convictions with leave of the single judge. At the conclusion of the hearing we allowed the appeal and quashed the convictions. We now give the reasons for our decision.

The Complaint

[5]The offences were alleged to have taken place over a 2 to 2½ year period as long ago as some time between 1985 and 1988 when V was between 8 and 11 years of age and the appellant, who is now 70 years of age, was in his mid 40s. The complainant first complained to the police in June 2008. She was then 32 years of age. She was video interviewed in an “Achieving Best Evidence (ABE) interview” on 23rd June 2008. In that interview she set out her complaints against the appellant.[6]V lived with her parents and siblings in a flat in North London. The appellant also lived in a flat in the same block, as did a man called Dave Evans. V’s father (F), the appellant and Dave Evans were friends. By the time this case came for trial Dave Evans had died. V said that her mother used to work at antique fairs at weekends, usually on Sundays, and her father would look after her and her three younger sisters at home. The appellant would come round only on Sundays when her mother was not there. She said that her father was an alcoholic and he and the appellant were “prop up buddies”.[7]V’s account was that the indecent assaults took place when her father was out of the room, either upstairs or in the kitchen although her sisters may sometimes have been in the room. The appellant would show her how to play a guitar which belonged to her father; she would sit to the appellant’s right on the sofa, with the belly of the guitar across her and the fret end across him. He would reach under her knickers behind the guitar and rub her clitoral area. The appellant did this on a number of occasions, certainly more than 5 or 6. This would generally be at lunchtimes when her father was out of the room cooking lunch. There was a hatch from the kitchen to the living room through which there was a restricted view into the living room. Count 1 was a specimen count representing this conduct.[8]On one occasion, after rubbing her clitoral area he inserted the tip of his finger into her vagina (count 3).She stood up and asked him to stop. He appeared to be afraid that she would tell her father and he tried to calm her. On another occasion whilst he showed her how to play the guitar he put her hand over his trousers in his groin area so that she felt his erect penis (count 4).[9]She described how on a further occasion the appellant kissed her with his mouth open and forced his tongue into her mouth (count 2). She thought her father was upstairs at the time. The appellant told her it was their secret.[10]Count 5 related to an incident which V said occurred outside her flat. She and her friend T used to play water fights outside, then run up the stairs to T’s balcony. On one such occasion the appellant was sitting on the stairs and as she ran up the stairs he lifted her over him so that she could continue up the stairs. In doing so he put his hand between her legs to lift her. He did it in such a way that it might appear to be accidental to other people, including adults, who were nearby but, she said, his purpose was to have a “quick feel”.[11]Count 6 arose from what V said was an attempt to deter the appellant: she sellotaped tissue paper to her chest area to make it appear that she was developing breasts as she thought the appellant might stop abusing her if he thought she was maturing. They were in the living room and the appellant touched her chest roughly and said something like “Are they real?” or “They’re not real”. V said they were and ran out.[12]V said that she developed a green vaginal discharge as a result of the abuse. She wrote a note to her mother telling her about the discharge, but her mother responded by saying that it was her body getting ready for periods. The assaults continued until about the time she started secondary school but they stopped when she became bolder. She and her friends would shout at the appellant that he was a pervert and that he liked touching little girls.[13]V said that during the period of the abuse her parents were experiencing marital difficulties. As a result she did not want to tell her mother what was happening for fear it would make things worse between her parents and that her father would be blamed because the appellant was his friend. She was not close to her mother and would not in any event have been comfortable telling her. She said she was embarrassed about telling anyone; she did not think people would believe her and worried what would happen. When she was about 14 she wrote about it in her diary which she left out in the hope that her mother would read it; although she did not think that her mother or anyone else had in fact read it. She thought the diaries had since been thrown away. She did not think either of her parents had any suspicions about what was going on at the time; they were too busy fighting with each other.[14]She said that she never complained to her friends about the appellant’s behaviour as she was embarrassed and could not have found the words. At the time it was happening or shortly after, a couple of her friends asked her if the appellant had been touching her where he should not, but she was embarrassed and denied it.[15]The appellant was arrested on 15th July 2008 and interviewed under caution. He strenuously denied the allegations. He said he had been good friends with the complainant’s father and had visited the flat between 3 and 6 times a month during the relevant period in the summer. Whenever he visited a man called Dave would also be there. He said he could recall a few occasions when he had shown the complainant how to strum the guitar; but he denied that he had ever touched her inappropriately. He said that the complainant’s father never left his chair; he did not cook; he had never seen him cook.

The Trial

[16]V’s ABE interview was played as her evidence-in-chief at trial and the remainder of her evidence was given in court but from behind a screen. When cross-examined she said that where she and the appellant had sat on the sofa was out of the line of vision of someone in the kitchen, even if that person bent down to look through the hatch. The hatch was small and below head height and you could not look through it unless you did so purposely. She denied that Dave Evans was always present when the appellant visited the flat.[17]V’s parentshad separated in 1990. They both gave evidence for the prosecution. Fsaid that at the material time the appellant had visited on a few occasions around about lunchtime at weekends. When he did so Dave Evans was always there too. The three of them shared musical tastes and would have a chat and sometimes a drink. He said he had never noticed anything untoward during the visits. The children would be around, but not necessarily in the same room. They would often be playing outside or in their bedrooms. He said that he had a guitar but could not play it. The appellant could play the guitar but had never played it at his flat. He said that he always cooked for the children at weekends. He would sometimes be in the kitchen cooking whilst the appellant and Dave were at the flat; but the kitchen was next to the living room, separated by a glass serving hatch and a glass door. There was an unrestricted view into the living room from the kitchen. The mother’sevidence in relation to the hatch in the kitchen and visibility through it into the living room supported that of the complainant.[18]The appellant gave evidence about his family circumstances and good character. He was retired, but had worked as a chef for 50 years. He had suffered a heart-attack in his mid 60s and later he had suffered a mild stroke whilst working as a security officer. He said that at the material time, he, the complainant’s father and Dave socialised at Dave’s flat and at the pub. At variance with his account in police interviewhe said that he had visited the complainant’s flat about 6 times in total, usually at a weekend. If he had said that it was more often in interview, that was incorrect. The complainant’s mother was never there. He never went there without Dave. The children would be upstairs or in the garden. He had never behaved indecently towards the complainant.[19]He had borrowed F’s guitar, and played it mainly in his own house but he did recall playing it at the complainant’s flat on one occasion. The children were around but may have been upstairs or outside. He showed the complainant chords on the guitar, on this one occasion, but did not teach her to play it. He said that when he was visiting the flat F would sometimes go into the kitchen; the kitchen door had transparent, not frosted, glass and there were glass panels which slid across the hatch opening.[20]He said he had never heard anyone shout at him that he was a pervert. He had seen V a few times prior to his arrest and she had never said anything like that to him. He said that he had made errors in his police interview as a consequence of trying to recall events from 25 years previously and because of his ill-health. His recent stroke had affected his mental abilities and he forgot things. (During his summing-up the Judge noted in this context that in interview the applicant had said he was 76 whereas he was in fact 67)He said he had not told any deliberate lies in the interview.

The Grounds of Appeal

[21]Against that background, three grounds of appeal are advanced: i) The judge was wrong to allow the prosecution to play V’s ABE interview as her evidence-in-chief. ii) The judge’s summing up was unfair to the appellant. iii) The jury’s verdicts were inconsistent and cast doubt on the safety of the convictions on Counts 1 and 3. We shall deal with each of those grounds separately.

Ground 1

[22]Section 17(4) of the Youth

Justice and Criminal Evidence Act 1999 provides:

“Where the complainant in respect of a sexual offence is a witness in proceedings relating to that offence (or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this sub- section unless the witness has informed the court of the witness’s wish not to be so eligible by virtue of this sub- section.”
[23]V was, therefore, entitled to special measures unless she indicated to the contrary. The application for special measures was submitted on 8th January 2010. As the appellant had been committed to the Crown Court on 28th September 2009, the application was out of time but it was still 10 months before the trial started and it is conceded, on behalf of the appellant, that this breach of the rules did not cause him any injustice.[24]The application for special measures was an application that the complainant’s ABE interview be played as her evidence-in-chief and that she give the remainder of her evidence in court but from behind screens. On 4th October 2010, V made a statement saying in support of her application for special measures that:
“I would prefer that my video interview is played as my evidence in-chief as I believe that due to the circumstances of the case and nature of the incidents, this would reduce the stress and emotion surrounding these incidents.”
[25]The defence at trial did not object to V giving the whole of her evidence from behind screens but they objected to the playing of her ABE interview as her evidence-in-chief.[26]The grounds of their objection were that there seemed to be no particular reason why this witness had been asked to give an ABE interview by the police rather than a written statement. There was nothing about the witness to suggest that she should not give her evidence in court in the normal way and as she was able to be cross-examined behind screens in court, there was no reason why she should not give her evidence-in-chief in the same way.[27]The defence also submitted that by allowing V to give evidence by way of her pre-recorded ABE interview, it deprived the defence of the advantage of relying on any differences which might emerge if she gave live evidence-in-chief between that evidence and the content of the ABE interview.[28]The judge heard argument and ruled the interview admissible. He noted that Parliament had treated complainants in sexual cases as deserving of special measures along with vulnerable witnesses and witnesses in fear. This was because of the particular strain of having to deal in public with sexual matters. Saving the complainant from having to deal with her allegations in chief and then having to deal with them again when cross-examined about them was an important matter. The judge saw no inconsistency between playing the ABE interview and the rest of V’s evidence being given in court from behind screens. He was satisfied that doing so would reduce the stress and strain of giving evidence and he was unimpressed by the argument that playing the ABE interview would deprive the defence of an opportunity for cross-examination.[29]Once it is established that a witness is eligible for assistance by way of special measures, S19(2) of the 1999 Act provides that it is for the trial judge to determine whether any of the special measures available would be likely to improve the quality of the evidence given by a witness; and if the judge so concludes, it is for the judge to decide which of the special measures, or which combination of them, would be likely to maximise so far as practicable the quality of the particular witness’s evidence. In deciding this matter the judge is required by S19(3) of the Act to consider all the circumstances of the case including any view expressed by the witness and whether the measure or measure might inhibit the effective testing of the evidence on behalf of the defendant. Giving evidence is not a memory test and the speculative possibility that a witness might say something when giving live evidence-in-chief which is different from what she said in a pre-recorded interview and, thereby, deprive the defence of the opportunity of cross-examining on those differences is not, in itself, an adequate reason for refusing to allow the playing of an ABE interview. The witness was entitled to special measures and the conclusion that the judge reached and his decision to permit the special measures sought by the witness was well within the margin of his discretion. We reject this ground of appeal.

Ground 2 – The Summing Up

[30]Mr Murphy’s complaint is that in his summing up the judge unfairly commented on the appellant‘s case, failed to put the appellant’s case adequately and gave a Lucas direction which was unfair. The result, it is argued, is that the summing-up was unbalanced to such an extent that the convictions must be regarded as unsafe.[31]The conflict between the evidence of V and the blunt denial of the appellant was stark. The appellant was unable to suggest any motive for V to lie but his case was put in the alternative: either V was lying or she had imagined the events about which she complained. In support of the second alternative the appellant relied on two features of the evidence. Firstly, the period during which the abuse was said to have occurred coincided with an unhappy time in V’s life when she did not have a good relationship with her parents and her parents were experiencing problems in their own relationship. Secondly, V had said in her ABE interview that at about the relevant time she and some female school friends would simulate heterosexual sexual intercourse, sometimes with their clothes off and sometimes when clothed.[32]When

the judge came to deal with the way the defence case was put he said:

“The suggestion, plainly put by the defence, is that these allegations are all untrue and she is either imagining them, which seems a bit unlikely, does it not, more likely, if they are untrue, that she must be lying.”
Mr Murphy submits that the judge’s comment that the possibility of V’s imagining the events was “a bit unlikely” was unfair as it left the appellant’s case on the basis that V was lying, the starkness of which the defence had tried to avoid.[33]At the beginning of the summing-up the judge gave the jury the conventional direction relating to expressions of judicial opinion. He did so in the following terms:
“If I, in the course of summing up the evidence to you, express an opinion about it or even appear to you to have expressed an opinion about it and that opinion does not fit in with your own then, quite simply, you put my opinion, or what you think is my opinion, entirely to one side. It is your opinion on the evidence that matters and nobody else’s at all. If I do express an opinion, or you think I do, and you find that opinion helpful, well, of course, take it into account but do so because you find it helpful not just because it is what you think it is, my opinion.”
[34]A judge is entitled to flag up for the jury the reality of the evidential conflict before them, sometimes in strong terms and in the context of this case and against the background of the direction to which we have referred we are unable to say that the judge’s comment was unfair. There are, however, other features of the summing-up which, when looked at cumulatively as Mr Murphy asks us to do, cause us concern and we turn to deal with those.[35]Mr Carrasco told us that F was called as a prosecution witness to confirm that the defendant had given V lessons on how to play the guitar and that V’s mother was out at the time. F, however, also gave evidence which was helpful to the appellant in relation, in particular, to the presence of Dave Evans in the living room of the flat when the assaults were said to have taken place. His evidence was, therefore, relied upon by the appellant.[36]During his evidence-in-chief F mentioned that Dave Evans was present at the flat at the relevant times and that was a topic developed by Mr Murphy in cross-examination. The judge, of his own motion, put parts of F’s witness statement to him. When dealing with these matters in his summing-up

the judge said:

“You have to approach carefully the father’s evidence. The prosecution called him and you may have perhaps wondered, allied with the evidence he gave, why the Crown called him. Perhaps it might be that he did not give quite the evidence that was expected. I asked him about his witness statement because although he said that Dave came too, in his evidence-in-chief he did not mention Dave at all and it was only when he was given a prod in cross-examination by Mr Murphy that he did mention Dave.”
[37]Mr Murphy makes a number of points on this passage. Firstly, the judge was wrong to say that F had not mentioned Dave Evans in chief and that he had done so only in cross-examination and, secondly, the jury was left with the impression that F had not mentioned Dave Evans in his witness statement. As to the first point, following a break in the summing-up the judge was asked to, and did, correct his mistake and told the jury that in evidence in-chief, F had said that when the appellant came to the house Dave Evans was there as well. As to the second point, it is factually correct that F had not mentioned Dave Evans in his statement, but there was no evidence before the jury of that fact and F had never been asked to explain why he had not done so. Despite the judge’s correction, the jury, Mr Murphy submits, was left with an impression of the content of the witness statement which the defence had not been able to deal with and the comment about F’s “unexpected” evidence was unfair.[38]The judge further commented on the evidence of F on page 34 of the summing up. It was in the context of the evidence relating to the “guitar lessons”. The appellant had said in interview that he had taught V “on some occasions”; in evidence he had said he had done so on one occasion and F had said that the appellant had never taught V the guitar. The judge said: “The defendant now, the prosecution suggests, has improved that version by reducing it to one occasion. The father, perhaps, who knows, in an attempt to help his old friend, his former friend, says never at all, never once did it happen. Mr Murphy argues that the judge’s comments about the father, his evidence and possible motives for giving the evidence he did were unfair.[39]On behalf of the appellant a number of criticisms were made of V and her evidence. They included, by way of example, that although V had said in her ABE interview that she had never told anyone of the abuse, she had said in cross-examination that she had, as a child, told her two best friends whom she named; that V’s mother had said in evidence that she was unaware of V suffering a green coloured vaginal discharge and she had no knowledge of V leaving her diary for her to read; that there was no evidence from V’s parents or from any other occupant of the block of flats that V and other children were given to calling the appellant a pervert and that V’s evidence that she decided to complain to the police because she saw that the appellant was working in a school had to be considered in light of the evidence that V had been aware for three years that the appellant had been working in a school before she made a complaint, that as V’s family had continued to be neighbours of the appellant for many years there had been numerous occasions when V had known that the appellant was in contact with children in his own family and in the neighbourhood and that for a period of time V and her mother had run a child minding business from their flat which was in close proximity to that of the appellant.

The judge referred to these criticisms at page 18 of the summing up in the following way:

“A number of criticisms are made of her but perhaps before I come to that, I will just mention matters which I think the Crown would rely on as tending to suggest that her account is true.”
[41]The judge then dealt with various prosecution points but he never returned to fulfil his promise that he would deal with the defence points. It is correct that some of the points were mentioned by the judge as he dealt with parts of the evidence but there was no set piece in which the defence criticisms were dealt with as the judge had dealt with the prosecution’s points. It is well established that a judge in summing-up a case to the jury does not have to remind the jury of all the evidence in the case or repeat for the jury all the points made or relied upon on behalf of a defendant. However, when a judge tells a jury that he will deal with a particular set of criticisms it is important that he does so especially when he has made countervailing points for the other side. This the judge failed to do.[42]A further criticism arises from the Lucas direction which the judge gave the jury. Before the summing up the judge discussed with counsel the need for such a direction and it was agreed that the direction would be given in relation to two matters which the prosecution submitted were lies told by the appellant. The two potential lies were: i) In evidence the appellant said that he visited V’s flat about six times in total whereas in interview he said four to six times per month in the summer and ii) In evidence the appellant said that he had taught V how to strum the guitar on only one occasion whereas in interview he had said that he had done so “on some occasions”.[43]The prosecution case was that, in evidence, the appellant was seeking to reduce the opportunity to commit the offences.[44]When the judge summed-up he gave a standard form lies direction about which no complaint is made. However, without prior discussion with or warning to counsel, he added a third “potential lie” to the direction which was that the appellant had said in evidence that F would sometimes go to the kitchen whereas in interview he had said that F “never used to cook in the kitchen. He was always in his chair”. The judge told the jury that whether the appellant was cooking in the kitchen was “highly material” and “absolutely central”. Mr Murphy submits that the prosecution had never suggested that the appellant was lying about this matter, the appellant had not been cross-examined on that basis and the appellant had never been given an opportunity to deal with the suggestion raised by the judge that he was lying. Had the judge raised the matter with counsel appropriate submissions would have been made. Mr Carrasco does not take issue with the submissions made by Mr Murphy save to point out that the judge properly directed the jury as to the significance of any lies they were sure the appellant had told and that Mr Murphy did not make an application to discharge the jury because of the judge’s final formulation of the direction.[45]The purpose of discussing directions with counsel is that they can be agreed and everyone has the opportunity to make submissions and representations and knows what to expect in the summing up. The judge’s addition of this further potential lie was unfortunate and, we accept, potentially unfair for the reasons advanced by Mr Murphy.[46]V said that she and friends would call the appellant names. She named those friends, Charmaine and Vicky. The evidence was that the police had traced one of the women but she had declined to make a statement. Efforts to trace the other woman had been unsuccessful.

The judge dealt with that part of the evidence as follows:

“That was one of the things that the complainant said she had done with one or more of her girlfriends at the time. Charmaine certainly, and I think Vicky, and they would not give statements or come to court so that is obviously important, the defence certainly rely upon that. That there is not any supporting evidence for them calling him a dirty pervert when they saw him walking in the vicinity of the flats or maisonettes and certainly Charmaine and Vicky would not give statements or would not come to court. Of course, as the jury can recognise, it was a very long time ago. We know nothing about their present circumstances. All we know is that they are in to their 30s, that is obvious, because the complainant is 34, and they may well be settled down and happy and do not want the major disruption to their lives which giving evidence in the case of this kind, with these sorts of allegations, would perhaps constitute. There it is, they were not prepared to come.”
[47]In addition to inaccurately summarising the evidence about contacting or failing to contact the women the judge ascribes to both women a reason for not wanting to give evidence about which there was, we are told, no evidence. This was an impermissible comment.[48]As we have already pointed out (see para.39 above) V had said in her ABE interview that she never told any of her friends about the abuse but had said when cross-examined that she had told her two best friends whom she named.

The judge dealt with that evidence as follows towards the end of his summing-up:

“Perhaps I should just finish with the complainant because I did not actually say what she had said as to why she had not told her friends. She said, “I never complained to my friends”
. Not even to the extent … that she complained to her boyfriends or partners that she had been sexually assaulted by a friend of her father’s. She said:
“I never complained to my friends, I was embarrassed, I could not have found the words. [She is talking I think essentially about at the time perhaps, I do not know]. I also felt ashamed and dirty and did not then, do not now, feel comfortable talking about it”.”
[49]Although the judge reminded the jury of what V said in interview and her explanation for not making a complaint to her friends, he did not remind the jury that in cross-examination she had changed her account and named two friends whom she had told of the abuse. This evidence potentially undermines V’s credibility and should have been mentioned to the jury.[50]A further matter which causes us concern is the way that the judge dealt with the appellant’s good character. He gave a full good character direction about which no complaint could be made. However, immediately after that direction he said:
“I think that the Crown are saying, of course, that somebody who commits the sort of offences that this defendant has, if he has, that he is charged with, would not prevent him being, in any other respect, a perfectly decent, reasonable, helpful person. But there it is, he has a supporting reference.”
The inevitable effect of inserting what the judge thought the prosecution were saying about the appellant’s good character was to water down the content of the direction to which the appellant was entitled.[51]We do not have to consider whether any one of the matters to which we have referred would cast doubt on the safety of the convictions. We, as Mr Murphy submits, have to consider the matters cumulatively and having done so against the summing-up as a whole we can not say that this appellant received the fair and balanced summing-up to which he was entitled. We can not, therefore, regard these convictions as safe and we allowed the appeal on this ground.

Ground 3 – Inconsistent Verdicts

[52]When summing up the judge directed the jury in the following terms about the way they should approach the various counts:
“Members of the jury, look at each count separately, please. The evidence in support of each count is not identical and it does not automatically follow that whatever verdict you reach on count one you will necessarily reach on any of the other counts and that applies to any count that you happen to be considering. Look at each of them separately”
[53]Although the case depended on the credibility of V, the circumstances of each allegation were different and no complaint was made at the time about that direction.[54]On behalf of the appellant, Mr Murphy concedes that the acquittal on Count 5 can not make the convictions on counts 1 and 3 unsafe. He is correct to make that concession because count 5 had special features which

the judge highlighted to the jury in the following terms:

“The putting his hand between her legs, she was quite sure that that was deliberate by him. There were other people around at the time and he, she said, wanted it to look either accidental or coincidental, I am not sure which or whether it matters, but made it look innocent as if he was giving her a hand and helping her on her way up the stairs, if anybody noticed. But if you think it might genuinely have been an accident, or might have been coincidental and was not a deliberate attempt by him to feel her between her legs through her bathing costume, then that count would not have proved.”
[55]Even if the jury were sure that the action complained of happened, there was clearly a basis upon which the jury could properly acquit on Count 5, whatever view they took of the other counts.[56]It is also conceded that the failure to convict on Count 6 cannot, of itself, cast doubt on the safety of these convictions as there were in relation to that count, also, particular circumstances upon which the judge directed the jury. He said:
“You may think that there might be a difficulty perhaps about count 6. I mean, difficulty in terms of even if you accept the complainant’s evidence she did not, in fact, have breasts at all at that stage (it is towards the end, I think she said it was the last incident that ever happened between them, the last indecent assault) and plainly, if in fact it was just tissue sellotaped to her chest and he grabs her, that would be, I suppose, what is called common assault, nothing to do with sex at all”
It is, therefore, possible that the jury were unable to agree on this count because of the difficulty which the judge had identified.[57]The essence of the submission on this ground is a note which the jury sent to the judge in respect of Count 1 and the failure of the jury to agree on Counts 2 and 4.[58]Whilst the jury were in retirement, they sent a note to

the judge which read as follows:

“Do we have to be sure that Count 1 of indecent assault occurred six to seven individual times or is it sufficient to be sure that it occurred at least once for it to be proved guilty.”
[59]The judge correctly told the jury that it was sufficient for them to be sure that the indecent assault happened at least once before the appellant could be convicted on Count 1. Mr Murphy concedes that this was an appropriate answer to the question but he submits that there must be real concern as to whether or not it was an appropriate question for the jury to ask. He argues that if the jury did not accept the evidence of V that the assault happened as frequently as she said, there is no reason to be sure that it happened less often than she said. The evidence from the appellant was that the incidents complained of by V never happened at all and there was no logical basis for the jury to reject the evidence of both V and the appellant and to conclude that the truth lay somewhere between the two accounts.[60]Furthermore, it is submitted, the different voting patterns underlying the convictions on Counts 1 and 3 give cause for concern as there is no logical basis upon which the jury could draw a distinction between the two counts. Moreover, if the jury could not be sure of the evidence in respect of Counts 2 and 4, on what basis did they come to a different view in respects of Counts 1 and 3? Mr Murphy submits that it is not possible to discern a legitimate chain of reasoning which would explain the jury’s conclusions.[61]We disagree with both these submissions. There is nothing surprising in the jury seeking clarification of what has to be proved in relation to a specimen count and nothing remarkable about differing voting patterns in the two convictions in light of the direction set out in paragraph 52 which the jury was properly given. In the case of WM decided on 30th March 1999 and referred to at [1999] 6 Archbold News 3 the then Lord Chief Justice, Lord Bingham said:
“…it would be anomalous that a jury, directed that the facts were for them, that they should consider the charges separately without any obligation to decide all the counts in relation to each complainant the same way, and that they should not convict unless they were quite sure, should then be held to have returned irrational or logically inconsistent verdicts because they took the judge’s direction at face value and gave effect to it.”
What the appellant has to show is that there is a logical inconsistency between the verdicts and that there is no possible chain of reasoning which could explain the apparent inconsistency. Counts 2 and 4 arose from incidents which occurred on different occasions from each other and on occasions different from those that underlay counts 1 and 3. Although V’s credibility was in issue on each count, a complainant’s credibility is not “a seamless robe” and it is not irrational for an adequate majority of the jury to be sure in respect of counts 1 and 3 but to take a different view in respect of the other counts. See G [1998] Crim L R 483.[62]The failure to convict on counts 2 and 4 does not cast doubt on the safety of the verdicts on counts 1 and 3 and we reject this ground.

Conclusion

[63]We accordingly allowed the appeal on ground two and quashed the convictions on counts 1 and 3.