FA, Re [2015] EWCA Crim 209

[2015] EWCA Crim 209Case No 201300382 C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 3 February 2015
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE NICOL
MRS JUSTICE MCGOWAN DBE
Between
R E G I N ACrownv
Between
FA
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms J Smart appeared for ApplicantMs S Lindop appeared for Crown
J U D G M E N T

LADY JUSTICE RAFFERTY:

[1]FA, 55, on 26 March 2010 in the Crown Court sitting at Croydon was convicted of a number of offences. On 24 May 2011 upon rearraignment he pleaded guilty to causing a person to engage in sexual activity without consent contrary to section 4(1) of the Sexual Offences Act 2003. On 30 September 2011 he was sentenced where relevant thus: on counts 9 to 12 and 17, sexual assault contrary to section 3 of the Sexual Offences Act, 3 1/2 years' imprisonment, the terms concurrent inter se; on counts 13 and 14, causing a person to engage in sexual activity without consent, on count 13 to 3 years' imprisonment, the term concurrent, and on count 14 to 5 years' imprisonment, the term consecutive; on the count to which he had pleaded guilty upon rearraignment 4 years' imprisonment, the term consecutive. The total was 9 years. He had been discharged on an allegation of rape following a successful submission of no case to answer. A number of other offences was left to lie on the file.[2]Those listening or reading should remind themselves of the statutory reporting restrictions and the case should be anonymised appropriately.[3]His application for an extension of 2 years 9 months in which to seek leave to challenge his conviction has been referred to the full court by the single judge. The applicant seeks to rely upon fresh evidence which came to light after his conviction.[4]Between 12 and 20 February 2009 (half term), KK, then 17, 18 at trial, went to stay with the applicant and his wife H (her uncle and aunt) whilst their son J, 15, stayed with her parents. KK had already exhibited sexually precocious behaviour as her social services file recorded. On 4 March 2009, back at home, KK told her old brother G that the applicant and his wife had forced her to have sex and had abused her. After their arrest on 10 March 2009, their home revealed electronic equipment, CDs and DVDs. Encrypted DWYCO video clips were found with photographs of H in obscene poses, including her tied up and suspended from the ceiling and being urinated upon by the applicant. The Crown's case was that KK, naked, was tied up with a dressing gown cord and suspended from a hook in the ceiling for long periods, forced to have vaginal and oral intercourse with, and sexually touched by, the applicant and made to walk about the house naked for most of the time. KK described the applicant urinating in her mouth whilst she was in the bath, and said she was used like an item of furniture.[5]Her IQ is between 55 to 69.[6]The applicant and his wife had an interest in BDSM (bondage, domination, submission and sadomasochism). The Crown alleged that he acted out his fantasies of domination upon KK. Material seized from his house included an image of a semi-naked female in his sitting room. He denied knowing her identity. G identified KK by her wristwatch and physique. Her clothing appeared identical to that worn by the woman on the video clip.[7]Due to the lapse of time until KK made her complaints no science was available to help the jury.[8]In interview the applicant gave an account which foreshadowed his evidence, a comprehensive denial. He told the jury that whilst he and his wife enjoyed a particular form of sex life it had stopped years before the allegations. Nothing happened to KK at his house. She only came to stay because of her inappropriate sexual advances to his brother, her stepfather, JA. She had been pestering JA who was finding it difficult.[9]The applicant said that during KK's week with them she asked about sex and they secured her mother’s permission to show KK a sex DVD as education. She saw a DVD of couples having sex and various websites of gay sex, bondage and other material. They gave her one of H's vibrators, also permitted by her mother. He speculated that KK had used images from the videos and websites to concoct a fantasy. She might also have stumbled upon legal images of him and his wife in sexual acts of an extreme nature.[10]The issue for the jury was whether KK were truthful and accurate.[11]Grounds of appeal against conviction complain that it is unsafe as a consequence of fresh evidence which suggests KK has retracted her allegation, and that post conviction she telephoned her mother, FA. On speakerphone she is said to have been was heard by her mother, her stepfather JA and her grandmother SA to say she had not been assaulted but had been obliged by her brother G to lie to the police so that he, G, and she, KK, could get a better council house. A note of the conversation was it is claimed made by FA, signed by those present and later by KK. JA and FA supplied an explanation of why at the lower court they did not give evidence.[12]The stark point is that the fresh evidence generates sufficient anxiety about the safety of the conviction for this application to succeed.[13]KK was interviewed post-conviction by the police and her ABE interview stood as her evidence-in-chief for these purposes. Ms Kate Man, registered intermediary, Ms Smart for the applicant and Ms Lindop for the respondent Crown have worked as a team, the better to promote the interests of justice in the conduct of this case. It is clear they have had in mind not only the course of the hearing and the welfare of KK, but also the interests of the applicant himself. Questions to be put by Ms Smart to KK in cross-examination were reviewed by the registered intermediary, whose sensible expert suggestions were unhesitatingly adopted. The fresh evidence upon which the applicant relied[14]In an undated witness statement SK, KK's brother, claimed that KK once told him she wanted the applicant out of prison. SK could say no more than that this was ages ago and that, although he and KK spoke often, KK had not mentioned it again.[15]FA in a witness statement of 19 December 2012 foreshadowed a later affidavit. The same form of recording was adopted by JA and SA and they corroborate each other. FA gave evidence and was cross-examined today. She claimed that in December 2012 during a Wednesday telephone call from KK to her, and in the home of her mother-in-law SA, and with her husband JA present, she, FA, switched her mobile telephone on to its speakerphone facility. She told us KK said, "I don't know why [H] was in prison. She never touched me." FA, who claimed to be in shock, asked "Really?" In a second witness statement, also incorporated into her affidavit, she explained that KK was adamant in the broadcast telephone call that the applicant and H should not be in prison as neither had touched her. FA's evidence was that she wrote down what KK had said and that at some point (an issue to which we shall return) the piece of paper upon which she wrote was signed by herself JA and SA.[16]FA recorded as follows:
"My name [KK] I dont know why [the applicant] and [H] are in prison because they never tuch me because S saw a picture of [H] on laptop [G] and [P] made me say it and I want to tell the truth and dont want to lie no more [G] put me were I am now after taking me in for 3 months." [Sic] Below we read "[KK]"; below that "
FA", below that "[JA]"; and below that "[SA]".[17]FA adopted the contents of her affidavit as the truth of her evidence as did JA. In cross-examination by Ms Lindop for the Crown and invited to explain what triggered her decision to switch her mobile telephone onto speakerphone all she could say was that she had switched it onto speakerphone so that those present could hear. This did not answer Ms Lindop's question, which was:
"Why did you want those people to hear it?" and its subtext: "
What was it that alerted you that something important might be coming?" Pressed, she said:
"Well, so it was not my word against hers. She said she didn't know why they were in prison as they didn't touch her. She said this loads of times. I asked her to say it again. You have to put the name down so people know who she is."
[18]Asked to explain why the note, as recorded, began "my name [KK]," she conceded that "my name [KK]" was not something that her daughter said. FA elected to write that down. Taken to her affidavit, she acknowledged that by contrast she there said those were words that KK had said, but she told us that the account in her affidavit was not true.[19]She claimed she had no difficulty recording what KK was saying; she got it all down. Once written it the three adults signed it. Later, at McDonald's, KK signed it. FA could not remember the date of the telephone call and did not think to add the date to her otherwise carefully recorded account. Neither could she remember whether, as her affidavit suggested, the McDonald's visit were on a different day from the day of the recorded conversation or the same.[20]She was asked whether when she saw KK her daughter was always supervised by social workers, carers or key workers. It is difficult precisely to distil her evidence. The emerging message was that she was, but FA said (dealing with McDonald's) that "the lady" (we infer the care worker) "might have gone to the loo" and KK might have signed the document at that stage.[21]This evidence arose because she had been taken to her affidavit where she claimed that whilst the carer used the lavatory she, FA, produced the note and KK signed it. Invited to explain why, if it were legitimate, she elected to use the opportunity of the carer's absence before taking it up with KK she said, "I knew the supervisor wouldn't allow it."[22]Finally of relevance on the topic of the note, she was invited to look at the top and the bottom. At the top "my name [KK]" is recorded the name by which her daughter is known, with an "i". At the bottom, where the reader would infer are signatures, the "i" is omitted. FA's evidence was that she missed out the "i" at the bottom; then she changed her account to the fact that KK when she signed it herself missed out the "i". FA was adamant that it was KK's signature.[23]She was invited to comment on the suggestion that KK had not said what was recorded, rather that FA made it up and then signed it, pretending that KK had signed it. She said, "No. Why does everyone believe what she says and not what I say?"[24]The Crown's position has always been and remains that the motive behind what it suggests is lying, contrived evidence from FA supported by JA and SA was FA's desire to get back the three children who were in care. She refuted that.[25]JA purported to confirm what he had heard over his wife's phone on speaker. He could not assist with when he signed the note nor with whether when he did KK's signature were on the piece of paper. He refuted the suggestion that he, his wife and his mother had conspired to put together the note as a false document and that it contained not a shred of truth.[26]SA was not called and this case stands or falls without her.[27]KK in her evidence-in-chief said she had told the truth at the court below, was not minded to change her account and any suggestion that she should do so had come from her mother. Her mother over the telephone told her to lie to the police, and to claim that she had not been truthful about what the applicant had done to her.[28]She was cross-examined with the assistance of the registered intermediary. She told us she did not talk to her mother about the applicant's conviction and time in prison, but her mother talked to her and said she should lie to the police about it. When KK told her mother that she was telling the truth, her mother said she should lie to the police. When she met her mother she always had a carer with her. She thought she did meet her mother in McDonald's and thought she had a carer with her on that occasion.[29]The note was then read out to her slowly and carefully. KK told us she did not know whether her mum showed her that note in McDonald's. She thought she remembered her mum reading it to her. She was not sure whether she had a carer with her. She was, however, sure about this: the words read out she did not say. She said, "I wrote my name thing in McDonald's because she told me to, my mum….I did not say the words on the paper. She's making it up. I didn't…..I'm telling the truth today and I know I must."[30]The test for admission of fresh evidence needs no recitation here.[31]Even without the evidence of KK we should have had profound unease about the credibility of the evidence upon which the applicant relies. KK is a young woman with profound difficulties, but it is plain that she has not resiled from her account to the jury and is unshaken in her evidence that she did not say the words recorded in her name on the note. She was stalwart in her rejection of any withdrawal of her evidence and decisive in her account that, when she declined to lie, her mother urged her again so to do.[32]The hurdle presented to the applicant by the combination of the evidence of KK and by the evidence holed beneath the waterline of FA and of JA is one that cannot be cleared.[33]We have no hesitation in concluding that this referred application must be rejected.