SW, R. v [2011] EWCA Crim 2463

[2011] EWCA Crim 2463Case No 200906579 D5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT IN LIVERPOOL
His Honour Judge Lyon
T20077606
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/10/2011
Before
LADY JUSTICE RAFFERTY DBEMR JUSTICE MACKAYHIS HONOUR JUDGE LORAINE-SMITH(Sitting as a Judge of the CACD)
Between
REGINACrownSWDefendant
Miss D Gould appeared for CrownMr T Chaize appreared for AppellantHearing Hearing date : 19 th October 2011
Judgment
[1]On 22January 2008 in the Crown Court at Liverpool the Appellant (53) was convicted of 3 counts of rape (counts 1, 2 and 3) 4 counts of indecent assault (counts 4-7 )3 counts of indecency with a child (counts 8 -10) and 2 counts of engaging in sexual activity in the presence of a child (counts 14 to 15)[2]On 11 February 2008 for count 3 rape he was sentenced to imprisonment for public protection; the minimum term under s. 82A Powers of Criminal Courts (Sentencing) Act 2000 7 years. In respect of counts 14 and 15 he was sentenced to IPP, (concurrent inter se and with count 3) the minimum term 3 years. On counts 1, 2 and 4 to 10 there was no separate penalty.[3]He appeals against conviction on counts 1, 2 and 3.[4]The appellant is the elder brother of HWC (complainant in counts 4 to 6) the mother of EW complainant counts 1 to 3 and SJF count 7. His second wife is LJW. Her sister HJ has daughters JCJ, EJ, GJ and CJ, complainants in counts 8 to 15. The appellant and LJW lived in Wigan before their July 2004 move to Spain. In October 2005 EW complained that he had sexually abused her when she was younger and a cascade of allegations then emerged.[5]Count 1 anal rape (the ‘bathroom rape’). EW(born [a date in] 1990) said that aged 9-10 and visiting her aunt and uncle, after her cousin B had gone to bed she was playing a computer game when the naked appellant came up behind her. She tried to get away, he pulled her back, she ran to the bathroom and locked the door. He kicked the door down. B was told she had locked herself in and the appellant had helped her get out. B went back to bed, the appellant took her back to the living room, pushed her down on her front and inserted his penis into her anus. She told her mother HCW enough to ensure she was not at his house again without an adult.[6]Count 2 (‘burning field rape’) When the family was holidaying in Spain LJW and the appellant held a party for her 14th birthday. The other guests were outside watching the fields being burnt, a custom in Spain, only 1 or 2 people in the house. She used the bathroom but the door did not shut properly. The appellant walked in on her, apologised, said he had not realised she was there, and then said he had a present for her. He said; “You’ll like this present, you’ve had it before.” He took her to a bedroom and raped her anally.[7]The final occasion (count 3)(‘the McDonalds rape’) was during the family holiday to Spain the following year, 2005. Visiting the appellant and his family for the day in Benalmedana she went to McDonalds in a group including 3-4 adult family members. Her mother was on the beach. When EW came out of McDonalds she stopped to look into a shop and found herself alone with the appellant who forced her to go down a side alley and perform oral sex. She returned to her mother on the beach and said she had gone to McDonald’s to use the lavatory. She did not want to cause trouble.[8]HWC(counts 4-6) the Appellant’s sister said she was 12-13 when on 2 or 3 occasions in a nightdress or pyjamas she woke to find him fumbling around “into her with his fingers.” touching her vagina. Told to stop he did. She locked the experience away in her mind. For a substantial period of time she had a good relationship with him. The first time her daughter EW told her about the abuse was during a heated discussion when EW said words to the effect of; “How would you feel if you were playing with your Play Station and you felt him up behind you with all his bits out and his dressing gown open pressing against you?” Because of EW’s friendship with the appellant’s son B, she asked her mother not to complain. They agreed she would not be left alone with the appellant in future. Once, out of the blue, in a telephone call LJW told her that HJ (mother of the complainants counts 8 - 15) had complained he was a paedophile. Thereafter HWC had no contact with HJ. Subsequently EW told her mother “something had happened” and HWC said far worse had happened to her and to SJF elder daughter of HWC and sister of EW. This drew further complaints from EW.[9]SJF Count 7(born [a date in] 1972), said she visited the appellant and LJW regularly. He would be naked beneath his unbelted dressing gown. She was a teenager when once he said something like; “I’ll give you a cigarette if you give me a wank.” She masturbated him for approximately 5 minutes. He put his hand on her leg and stroked her stomach.[10]JCJ (counts 8-10)(born [a date in] 1987) said he kept his dressing gown closed only when LJW was present otherwise he left it open. One evening when she was 14 or 15 her aunt had gone to bed, she and he were playing Monopoly and he began masturbating himself. He said; “Can I have a look at you?” She thought he wanted to see her naked. She told her aunt what he said but was too embarrassed to mention his masturbating. He later explained he was looking for head lice.Something similar happened when she was 12 or 13 [youngest 11 oldest 15] The appellant joined in a floor game between JCJ and her sister G leaving his dressing gown open. He picked them up tickling them and was masturbating. She did not tell her mother because she was scared.[11]GRJborn [a date in] 1989 (counts 11 to 13 upon which the jury returned verdicts of Not Guilty on the judge’s direction) said he would wear his dressing gown with nothing on underneath. His erect penis was visible on occasion. She thought once when they were lying on sofa the he rubbed it against her back but could not be sure. Once he tickled her and she felt uncomfortable[12]CJ (born [a date in] 1995) (count 14) said once in 2004-2005 she had seen the appellant in his dressing gown, sitting in a chair playing with his penis.[13]EJ (born [a date in] 1997) Count 15said once in 2005 she was in the bedroom with her sister C. he in his dressing gown stood by the door “showing his willy and playing with it.” He might have been wearing a top and shorts under the dressing gown; she did not know.[14]HJ (mother of complainants JCJ, GJ, CJ and EJ (counts 8-15)) said she spoke to LJW about the appellant walking around with his dressing gown open.[15]The appellant gave evidence that all allegations were fabricated. He had never carried out any sexual misconduct towards any member of his family. In the late 1990s HWC’S daughter SJF came to stay due to behavioural issues. He agreed “You can have a ciggie if you give me a wank”, shock tactics to get her attention and discourage her from smoking. He had never purposely or in any other way pressed his private parts against any parts of any complainant’s body, nor masturbated in her view. He had never engaged in a tickling game as an excuse for some sort of sexual contact. He wore his dressing gown until after breakfast and after his bath at the end of the day. His wife on occasion told him to cover himself up because there had been a couple of accidents, but she made sure he wore underpants under the gown.[16]EW could not have locked herself in the bathroom (count 1) because there were no locks on any room. EW’s 14th birthday party in Spain saw 20-30 in and out of the house all the time. The door to the room in which the offence was alleged to have taken place was open at all times and would not shut all the way. There were no locks on the doors. EW could not have been separated from the rest of the party in Benalmadena nor could he and she have gone up an alleyway for oral sex since all in the group stayed together.[17]LJW called in his defence said on EW’s 14th birthday party, nothing in her behaviour caused concern. On the visit to Benalmadena there was never an opportunity for oral rape in the town centre nor a time when EW and her husband were away from the party on their own[18]RJ (LJW’s niece), AJ (RJ’s step-mother) and APJ (LJW’s brother and RJ’s father)allgave evidence that on the day trip to Benalmadena there was not the time, space or opportunity for him orally to have raped EW though they were not monitoring his movements minute by minute.[19]Counts 1-3 the rapes, are unsafe because: i) The Judge wrongly directed the jury that it could use any evidence on any count as evidence of propensity to support the rapes. Counsel relies upon R v Chopra [2006]EWCA Crim 2133; R v Wallace [2007] EWCA Crim 1760; R v Freeman, R v Crawford [2008] EWCA Crim 1863; R v Tully and Wood [2006] EWCA Crim2270 and R v Clements [2009] EWCA Crim 2716.) ii) Evidence of sexual misbehaviour, not charged, was merely “reprehensible behaviour” and pure bad character evidence. There was no application to adduce it as there should have been, and no objection to it, a very serious misjudgment in itself rendering the trial unfair. iii) The appellant was wrongly cross examined as to bad character, it being put to him that he was a “con artist” in relation to claiming unemployment benefit. Again, no application made, and no objection taken. iv) The Criminal Procedure Rules in relation to applications to adduce bad character evidence were ignored. v) The learned judge failed to remind the jury of important evidence pointing to the unreliability of prosecution witnesses. vi) The failure of counsel to put the defence by cross-examination or when calling, or failing to call witnesses was a very serious misjudgment rendering the trial unfair. The failure was partly responsible for the failure of the learned judge to sum up the defence case in any of the 3 counts.

The Law

[20]S98 CJA 03 where relevant defines bad character evidence as: i) …disposition towards misconduct…….other than evidence which a) has to do with the alleged facts of the offence….charged….. ii) S 100 (1) provides that BC evidence is admissible if……a) all parties agree …d) it is relevant to an important matter in issue between the defendant and the prosecution… iii) S101(3) provides that BC evidence must not be admitted if on a defence application to exclude it it seems to the court that “the admission…….would have such an adverse effect upon the fairness of the proceedings that the court ought not to admit it”. On such application the court “must have regard in particular to the length of time between the matters to which that evidence relates and the matters which for the subject of the offence charged.” iv) S 101 (3) provides that propensity to commit offences of the kind charged is included as a matter in issue under 101(1)(d) “except where his having such a propensity makes it no more likely that he is guilty of the offence”[21]Counts 1, 2 and 3 alleged rape when the appellant was at least 39 years old. Counts 4, 5 and 6 alleged indecent assault by touching his sister’s genital area whilst she slept, he 15/16, she 12/13. All other counts, 7 to 15, alleged indecent conduct involving masturbation, he at least 37, and more than 20 years from counts 4, 5 and 6.[22]The Appellant submits thatputting his fingers into his sister’s vagina, or mere touching it as she slept, does not show a propensity to rape, nor is it “sufficiently similar to be capable of supporting” a rape. Counts, 4, 5 and 6 are conceded as cross admissible but vis a vis each other only.Mr Chaize argues that they should have been severed, alternatively that the jury should have been directed to disregard them when considering the rape counts.[23]None of the other allegations, counts 7 to 15, which involve masturbation or “playing with himself” while wearing the dressing gown flapping open shows, so the argument goes, a propensity to rape. In one case he persuaded a child to masturbate him. In another he masturbated while playing a tickling game and in others masturbated in front of the children, evidence relating to these counts was cross admissible vis a vis these counts only. They too, so it is said, should have been severed. Alternatively the jury should have been directed to disregard them too when considering the rapes.[24]MissGould, who appears here and below, explained the Crown’s case as that the Appellant was a man who would walk around with his dressing gown open in order to desensitise children so that he could behave in sexually inappropriate ways: masturbating in front of them and touching them in various places. All the children were female family members aged between 8 – 16, all in his care and with one exception his home at the time the offences occurred. The offences were opportunistic and the Appellant prepared to take risks to commit the offences knowing the family situation of the various girls and how vulnerable they were due to their poor relationships with their mothers. This was a pattern of behaviour albeit the behaviour was of different degrees of seriousness.[25]She submits that if the jury were sure of guilt in relation to any of the counts, that was evidence of a sexual interest in/attraction to female family members in his care, of sexually inappropriate behaviour towards them, and/or of grooming. Any one count proved made it more likely he committed the other offences. If seven female relatives within a limited age span all said he had sexually misbehaved in similar circumstances, it was more likely to be true than if only one said it even if there were a difference of degree in the conduct complained about. It went to credibility.[26]Mr Chaize (who did not appear below) today showed us R v D, P and U [2011] EWCA Crim 1714 where the court considered whether on a count of sexual abuse of a child, possession of indecent photographs of children were capable of admission as bad character evidence as evidence of a sexual interest in children, relevant to an important matter in issue between the defendant and the Crown The Vice President said that it does not necessarily follow that a person who enjoys viewing such pictures will act out activity there depicted by abusing children. The appropriate question was whether it were relevant to demonstrate a sexual interest in children. It could be. A sexual interest in small children or pre-pubescents is relatively unusual and certainly not the norm. The case against these defendants was that each had such an interest and translated it into active abuse. Evidence of viewing and/or collection of child pornography is capable of being admissible through gateway (d) though not automatically so; bad character provisions require an exercise of judgment, specific, in every trial. Moreover, this was but the first part of the exercise. The court must consider whether it were unfair to admit the evidence and in some cases it might be. Propensity in the true sense is a trait making it more likely the defendant behaved as charged. Juries should be reminded that they cannot proceed directly from the possession of photographs to active sexual abuse: the extra step must be proved. The previous behaviour must bear a sufficient relationship to the offence now charged for it to be capable of showing a propensity to commit such offence and to do so without unfairness. The court’s general conclusion was that possession of child pornography may, depending on the facts, demonstrate a sexual interest in children admissible through gateway (d) upon trial for offences of sexual abuse of children. It will not always be so. It may be right to exclude the evidence as a matter of discretion, particularly if its probative value is marginal.

Discussion

[27]We have approached the first Ground not by reviewing whether counts 4-6 and then counts 7-15 should have been the subject of a severance argument, as Mr Chaize submits, but by considering whether the rapes were properly tried on the same indictment as the balance of the counts. The evidence upon which the Crown relied to prove the rapes was of force used on a girl aged between 9-10 until early teenage, her assailant at least in his late thirties. The conduct complained of was penetration of her anus, on two indicted occasions, and of her mouth. The balance of the indictment alleged inappropriate sexual comment or sexual misbehaviour varying from exposure of the genitals to masturbation. Counts 4, 5 and 6 alleged touching the Appellant’s sister’s genital area whilst she slept, he 15/16, she 12/13. Counts 7 to 15 alleged indecent conduct involving masturbation, he at least 37, and with a gap of over 20 years from counts 4, 5 and 6.[28]R v D, P and U considered a temporal progression from the viewing of pornography to the acting out in physical abuse of its depicted content. We might, for shorthand purposes, equally well describe such as a translation of cast of mind into activity, in a readily understood escalation. The position here is very different. There existed clear water between the most serious allegations, rape by a forty-year old of a girl aged between 9 and 14, and indecencies beginning with the touching of a 12-13 year old by a 15-16 year old. Additionally, there are striking temporal gaps, of 32 and of 20 years. What we might term the gulf, in terms of harm, of culpability and of date between the rape and the remaining allegations is wide. We are surprised that the Crown considered that the rapes ought to be prosecuted with the balance of the indictment. That said, there was no application by the defence for severance, also surprising. The judge was confronted with apparent agreement between counsel that the counts were properly joined. Each member of this court would unhesitatingly have ordered severance of the rape counts. For reasons which will become apparent, we need do no more than express our disappointment that neither counsel put his or her mind to the potential prejudice consequent upon that failure. The picture is not improved by defence counsel’s failure to respond to these grounds despite waiver of privilege.[29]Assuming the indictment remained in the form in which we now have it, in our judgment it was essential the jury be given a very clear direction on how it should treat evidence on the various counts and groups of counts in relation to other counts or groups of counts. Towards the end of counsel for the Crown’s cross-examination of LJW, the final defence witness, the judge indicated that this was an interesting point “that we will come back to”.[30]In the event there was no detailed consideration of this issue. There was a brief discussion in the absence of the jury on 21st January 2008 in the course of which the judge noted that “this case has proceeded pretty much on the basis that the one does support the other”. He concluded the discussion by saying “the use of the evidence, the one against the other, that is a matter which I will deal with pretty much in the way I have already indicated”. That appears to have been the full extent of the consideration of this issue by judge and counsel.[31]When he came to sum up the case he gave a standard direction that the jury should look at each of the charges separately and decide the case against and for the defendant on each separately. “The evidence is different, it comes from different people and therefore your verdict need not be the same” he said.[32]He returned to the issue of cross-admissibility at page 7H to 8F. The passage is not lengthy and we set it out in full:
“One of the things that the Crown invite you to do is to look, having looked at each of the cases separately, to consider whether the evidence of one count, and one person in relation to that count, could be used to support the case on another count. Members of the jury before you could use the evidence of one complainant in support of another, or of another count in the indictment, you must firstly be sure that there has been no collusion or contamination of the evidence. In short, you must be sure that the various complainants have not put their heads together for some reason to attack this defendant. If you are sure there is no collusion or contamination, does the evidence of one complainant, who you must be sure is telling the truth accurately, assist you in support of another complainant’s evidence by showing that the defendant has a propensity, a tendency, to commit these types of offences against young female members of his extended family? The first thing you do: are you sure there has been no collusion or contamination? If you are not sure of that then you must judge this case in each individual case purely by the evidence of the complainant in relation to that matter. But if you are sure there has been no collusion or contamination, providing you are sure of some particular person’s evidence, you can then use that evidence in support of other counts in this indictment by showing, as it may do in those circumstances, that he has a propensity to commit this type of offence.” [Emphasis added]
[33]This direction, to which the Judge did not return later, puts the question of cross-admissibility of evidence in the widest possible form. The appellant argues that it gives the jury insufficient guidance as to how to treat the evidence of the various complainants on the various counts. There is no attempt to group the counts into, say, counts 1 – 3 (rape of a niece aged between 8 and 15, he in his forties); counts 4, 5, and 6 (indecent assault on his sister 25 or more years earlier, she was 12 or 13, he 15 or 16, by touching her vagina); and counts 7, 8 and 9 and 14 to 15 (indecent displays of his private parts to young female family members including some incidents of masturbation). By so doing, the Judge could and should, it is argued, have distinguished between these offences and particularly stressed the great gulf in seriousness between the first three counts and the remainder of the indictment.[34]Second it is argued that in all cases the jury should be directed that cross-admissible evidence should only be used as what Counsel described as “ a make-weight” to support other reliable evidence rather than to bolster an otherwise weak case or assume a primary role in proving the count being considered.[35]There is force in those submissions. In our judgment the danger was that, despite the brief direction to give separate consideration to each count, this jury was being invited to form an overall impression as to whether, in the words of Miss Gould, who prosecuted at the trial, “it did happen or it didn’t”. She contends that the summing up is good enough, though she concedes that in an ideal world the judge could have gone further and, in particular, a distinction could have been drawn between the most serious offences in counts 1, 2 and 3 and the lesser offences. The fact that there had been no argument seeking to exclude this evidence and therefore no discussion before the Judge of its potential impact on the fairness of the trial may have meant, she surmised, that the Judge tailored his fairly short direction to reflect the way the case had proceeded up to that point. With appropriate candour she accepts that with the benefit of hindsight this direction should have been approached in a different way. Her candour is to be commended, but she was prosecuting Counsel with responsibility for the indictment, and in a case where defence Counsel appears not to have been aware of the potential for unfairness that this direction might generate, it was her duty to assist the Judge to a much greater extent than she did.[36]On a minor point there was no direction at all as to what use they were to make of the evidence of GJ. The judge had directed acquittals of counts 11 – 13 relating to her because she failed to come up to proof, but she had given evidence of reprehensible conduct towards her by the Appellant which they had not been told to ignore.[37]We therefore consider that the judge’s directions were inadequate on the all-important question of cross-admissibility, and did not give the jury the assistance and close direction it needed. Even if these counts were appropriate to be tried together the verdicts resulting must therefore be regarded as unsafe. It follows that, pace our expressed views on the trial of the rapes on the same indictment as the balance of the counts, it has not proved necessary to consider any further grounds as advanced.[38]The convictions on counts 1, 2 and 3 are quashed. We give leave to appeal on counts 4 to 10, 14 and 15 and we quash those convictions also. We invite the Crown’s views upon a retrial.