R v UDS [2025] EWCA Crim 1540

[2025] EWCA Crim 1540

Case No 202501390 B1

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL FROM THE CROWN COURT AT CARDIFF

His Honour Judge William Gaskell

T20180031

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 2 December 2025

Before

LORD JUSTICE STUART-SMITH

MR JUSTICE MORRIS

MR JUSTICE CHOUDHURY

Between

REXRespondent

UDSAppellant

REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER

s.9 CRIMINAL APPEAL ACT 1995

Mark Cotter KC (instructed by Bowden Jones Solicitors) for Appellant

Caroline Rees KC (instructed by CPS Appeals & Review Unit) for Crown

Hearing Hearing date: 14 November 2025

The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence.

Approved Judgment

This judgment was handed down remotely at 10.30am on 2 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. For the avoidance of any doubt, we do not waive or lift the prohibition. In order to protect her identity, we shall refer to the complainant in this case as V. For the same reason we have anonymised the name of the appellant and direct that he be referred to as UDS for all purposes connected with this appeal.

[2]On 6 July 2018 in the Crown Court at Cardiff before His Honour Judge William Gaskell the appellant was convicted (by a majority of 10 to 2) of four counts of indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960 (Counts 1-4). On 9 August 2018, before the same Court, he was sentenced to a special custodial sentence under section 236A of the Criminal Justice Act 2003 of eight years comprising a custodial term of seven years and an extended licence period of one year on Counts 1, 2 and 3 (concurrent inter se),and two years’ imprisonment concurrent on Count 4.

[3]On 25 October 2018 the Court of Appeal Criminal Division (The President of the Queen’s Bench Division (Sir Brian Leveson), Baker and Goss JJ.) allowed an application by the Attorney General under s.36 Criminal Justice Act 1988 to refer the appellant’s sentence to the Court of Appeal. The sentences on Counts 1, 2 and 3 were quashed and the court substituted concurrent sentences of 10 years comprising a custodial term of nine years and an extended licence period of one year. The concurrent sentence of two years’ imprisonment on Count 4 remained undisturbed. The total sentence was therefore a special custodial sentence of 10 years pursuant to s.236A Criminal Justice Act 2003, comprising a custodial term of nine years and an extended licence period of one year

[4]On 11 October 2018, the single judge granted the appellant leave to appeal against his conviction. On 12 July 2019, the Full Court (Fulford LJ, May and Swift JJ.) dismissed the appeal.

[5]The appellant now appeals against his conviction upon a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 on the basis that material not disclosed to the defence at trial casts doubt on the safety of the conviction.

[6]The appellant has been represented throughout by Mr Mark Cotter KC. Before us the prosecution has been represented by Ms Caroline Rees KC. We are grateful to them both for their assistance and submissions.

The factual background

[7]This appeal relates to events in 2001-2002 when V was aged between 5 and 6. It was alleged that the appellant incited her to perform oral sex on three occasions during the indictment period (counts 1, 2 and 3), and that he masturbated in front of her (count 4). V first made allegations against the appellant in August 2002, when she was aged 6. On 1 August 2002, V’s father (the appellant’s brother), reported the allegations to the police. V was video interviewed on 5 August 2002. The original ABE interview recording has been destroyed. A two-page “Index of Interview” document which summarised this interview was retained. It is apparent that the Index of Interview document is not a comprehensive record of V’s account. In it V gives an account of being in a tent in appellant’s bedroom, performing oral sex on him and of him ejaculating.

[8]It appears from other remaining contemporaneous documentation that the police believed that V’s father was unsupportive of their investigation. However, on 7 August 2002, the appellant was interviewed following his arrest on suspicion of gross indecency. In interview, the appellant said that he lived with his mother, V’s grandmother, and that V would visit regularly with her mother. He denied having any sexual activity with V. He described being approached by V’s father regarding her allegations and V’s father having discussed with him instances where V had been mixing with older children and behaving in a sexualised manner. He said her father had described V as being “sex mad”. He confirmed that he did have a children’s play tent in his bedroom as well as other items for children. He explained that V would play in his bedroom when visiting his home. The play tent was forensically examined. No trace of semen was found in it.

[9]In October 2002, the Crown Prosecution Service (CPS) decided that, due to the lack of forensic and medical evidence, no further action should be taken against the appellant. The matter then went into abeyance until 2016 when the investigation was reopened at the request of V.

[10]On 22 January 2016, V attended the appellant’s home and discussed the allegations with him. She was secretly recording the conversation. On the same day, she approached the police asking that the allegations against the appellant be reconsidered. On 30 January 2016, V again approached the appellant and discussed allegations while recording their conversation. During the recorded conversations, the appellant stated that there were elements of his behaviour he regretted. He accepted that he had kissed V on the lips and on the cheek; but he consistently denied having had any sexual contact with V.

[11]V was interviewed again on 5 July 2017. During that interview she was asked whether she had previously seen any other person’s penis, which she said she had not. She was also asked about sexualised behaviour with a childhood friend, who we shall call B, which she said had all happened after she had been abused by the appellant.

[12]The appellant was interviewed again on 12 July 2017 when he denied committing any sexual offences. He said he had no idea what had triggered V’s 2002 allegations. The Police and CPS initially decided that there were insufficient grounds for the CPS to review the previous charging decision. After V had appealed to the National Child Sexual Abuse Review Panel and further investigations had been carried out, the appellant was charged on 1 December 2017.

[13]By the time that the investigation was reopened, both V’s mother and the appellant’s mother had died. In addition, some of the materials that had been accumulated in 2002 had been lost or destroyed. Materials that had been kept as a paper file were stored in a portacabin at Fairwater Police Station where they had become sodden and mouldy, as a result of which a decision was taken in 2008 to destroy the water-damaged materials.

[14]By the time of the trial, the following contemporaneous materials were known to have been retained and were available: i) A witness statement dated 6 August 2002 from a Police Officer employed within the Child Protection Unit, who we shall call AE, which confirms that he prepared the ‘Index of Interview’ document; ii) The “Index of Interview” document; iii) The full ROTI of the Appellant’s 7 August 2002 police interview; iv) The forensic science report which confirmed a negative result following testing to determine whether there was semen on the play tent; v) An occurrence report stating that no further action should be taken against the appellant, due to a lack of forensic and medical evidence; vi) Some contemporaneous social services records, some of which were retained because they made reference to the allegations and police investigation, namely: a) A CPU 4 form from City and County of Cardiff Social Services which refers to minutes from a strategy meeting on 21 August 2002; b) A CP3 recording sheet from the City and County of Cardiff Social Services department. The document refers to V’s parents’ response to the allegations and to a case conference on 16 September 2002, stating that there were concerns regarding V’s father’s reaction to the allegations and his capacity to keep V safe; c) A South Wales Police Notification Referral (FSU/1), which referred to a conference on 16 September 2002 in which it came to light that V had witnessed her parents having sex. d) A document from Cardiff Children’s Services requesting referral dated 2 August 2002; e) An email dated 4 August 2002 from a member of the Emergency Duty Team regarding additional information about V’s father’s attendance at Central Police Station. He is said to have told an officer that the appellant could not have abused V, praising his qualities and saying that he wished to prevent V being interviewed. Her father is reported to have said that V had probably had a bad dream.

The trial

[15]The issue for the jury was whether they were sure that the appellant had committed the offences alleged by V. Whether and, if so, how and when V exhibited sexualised behaviour as a 6 year old child was in issue at the trial.

[16]The evidence relied on by the prosecution included: i) The evidence of V, by way of an ABE interview, conducted on 5 July 2017; ii) The Index of Interview document, from V’s 2002 ABE; iii) Evidence from V’s father, who was told of the offences by V in 2002 and who said that he had confronted the appellant regarding the allegations; iv) Evidence from another brother of the appellant and V’s father, who stated that the appellant had made comments regarding the allegations that he had found suspicious and of which he had informed V’s father. The main significance of this evidence was that it appears to have made V’s father turn against the appellant; v) Evidence from V’s sister, who was told of the allegations in 2002 by their mother; vi) Evidence from the Investigating Officer; and vii) The audio recordings made by V during her conversations with the appellant.

[17]The appellant gave evidence on his own behalf, consistently denying any sexual contact with V. In addition, the defence relied upon: i) Notes from the original 2002 investigation, which suggested that the complainant’s evidence was tainted and that the medical and forensic testing was negative; ii) A letter written by V, which the police discovered while investigating her mother’s disappearance. The letter was intended for V’s boyfriend. In the letter, V stated that, when telling her boyfriend about the events involving the appellant, she had lied, exaggerated, put on fake tears, and stated that she had limited memory of events.

[18]The Index of Interview from 2002 contained a number of relevant entries, including the following (with quotation marks as in the Index document): i) V said she was too scared to talk about what happened. When asked why she was scared she said “cos of what I told dad.” Asked what she had told dad she replied “sex what happened with my brother”. I did it to [the appellant]. … I kissed him on the lips before. Dad told me not to only on the head.” ii) Speaking of the appellant she said “It was in the tent in the bedroom, what happened” He told me to suck his willy. I sucked it once.” iii) When asked what his willy looked like she said a circle with a hole over it. She pointed to her groin area and says “he told me like that (indicating) he said, suck my willy. I thought it was wrong.” iv) A little later she said: it was kiss kiss kiss in the tent. I asked for sex to happen. Asks what she understands by the term sex, replies “being rude”. Some minutes later she said: I asked for sex. He said “oh yes”. I sucked his willy. Sucked his thumb and then kiss kiss kiss. … A bit of toilet, wee, dropped off his willy, He told me to suck his willy on the couch. She said that the stuff that came out of his willy was “yellow”.

[19]There were agreed facts including: i) “In a South Wales Police Notification Referral known as an FSU/1 (“Family Support Unit”) dated August 2002, at an entry dated 17th September 2002 it is recorded that “items (sic) have been sent off for forensic examination” and “I informed Bob Cummins of information that had come to light in the case conference on 15 September 2002. [V] has witnessed her parents having sex.”” (Agreed Fact 11); ii) “A recording sheet … records a telephone call dated 7th August 2002 from [the investigating officer]. The note says as follows: “[The investigating officer] and [AE] interviewed [V] yesterday and although [V} failed to disclose and the medical evidence is unsupportive of sexual abuse, both [officers] were concerned by [V’s father’s] attitude towards police and his daughter.”” (Agreed Fact 14); and iii) “The recording note goes on to record “[The appellant] (alleged perpetrator) is to be arrested and interviewed today but [the investigating officer] found [V]s evidence was so tainted that the case will not proceed.” (Agreed Fact 15). We note in passing that, by the time of the trial, the investigating officer could not remember why she had found V’s evidence to be “tainted”.

[20]When cross-examined, V denied ever having witnessed any of her family doing anything sexual. She accepted that she had played games of a sexual nature with B but said that was after she had been abused by the appellant. Similarly, she rejected the suggestion that she had kissed people on the lips before the time of the alleged abuse and said that any kissing on the lips only occurred after she had been abused by the appellant. Her father said he did not remember any occasion when V was about 6 when he had spoken to her about not kissing people on the lips.

[21]In the prosecution speech to the jury it was asserted that there was no reliable evidence of V engaging in sexualised behaviour before she was abused by the appellant. Reference was made to the appellant’s evidence that she was not exhibiting sexualised behaviour and that his impression was that she was a normal little girl. The jury were asked to consider how a six-year-old could have come to describe the abuse that she alleged unless it was something that had happened to her.

[22]In contrast, the defence speech contended that V was a mixed-up kid and that the allegations might be a construct based on things she had been told or had seen. Referring to the information that was said to have come to light at the case conference on 16 September 2022 that V had witnessed her parents having sex, defence counsel said:

“Who told Social Services that? Who could have told Social Services that? Who, there’s only two people, aren’t there, that will be in a position to know that? And that will be the parents, but we don’t know because we don’t have sufficient information about it. But there’s another, there’s another area that, if it were accurate, that would give rise to the possibility that [V] had been, had witnessed or been exposed to male genitals, sexual activity, quite separate from whatever’s described in relation to the bath and so on.”

The first conviction appeal

[23]During the trial, the appellant had applied on two occasions for the proceedings to be stayed as an abuse of process. The Trial Judge refused the applications. After his conviction, the appellant appealed with the leave of the Single Judge on the basis that the absence of V’s original ABE recording (or a transcript of it) and the police file caused the appellant prejudice such that a fair trial was impossible. Specifically, the appellant submitted in relation to the Index of Interview document:

“Later in the same document, at an entry dated 17th September 2002 it is recorded that “items (sic) have been sent off for forensic examination” and “I informed Bob Cummins of information that had come to light in the case conference on 16th September 2002. [V] has witnessed her parents having sex.”

The suggestion that there was material available to indicate that [V] had witnessed her parents having sex is extremely troubling, made more so by the absence of that material. It is more troubling when considered against the comment in the Index to the effect that [V] asked her brother for sex. None of this can be properly examined, investigated or verified.”

[24]The Court of Appeal in dismissing the appeal said:

“In this case, notwithstanding the records that had been destroyed, the appellant was in possession of a substantial amount of material that could be used to test the reliability and credibility of the complainant. The contents of the Index (which was a summary of the ABE interview), the paucity of the forensic evidence, the initial allegation against [V’s] brother, the clear contradictions in the complainant’s emerging account, the admission of lies to her boyfriend and the assessment in 2002 by a key officer that [V’s] evidence was so tainted that the case would not proceed are all no more than key examples of the substantial information that was available to help the jury evaluate [V’s] account. There was, therefore, extraneous evidence of real substance to assist the jury assess whether her account was to be accepted. Indeed, it might be said that Mr Cotter had available to him significantly more material to be deployed during cross-examination than is often the case during the trial of sexual allegations of this kind.”

[25]The Court of Appeal paid tribute to the Trial Judge’s directions to the jury about the lost material:

“The judge’s directions to the jury should include the need for them to be aware that the lost material, as identified, may have put the defendant at a serious disadvantage, in that documents and other materials he would have wished to deploy had been destroyed. Critically, the jury should be directed to take this prejudice to the defendant into account when considering whether the prosecution had been able to prove, so that they are sure, that he or she is guilty. The judge gave an impeccable direction to this effect, of which there is no criticism by Mr Cotter. We reiterate that it is always to be regretted when material relevant to a prosecution is inadvertently destroyed – the prosecution have a critical responsibility to store case records safely – but we are wholly confident the defendant in this case received a fair trial, given most particularly the judge’s exemplary approach to the issue of the lost documents.”

The CCRC’s review

[26]The appellant applied to the CCRC for a review of his conviction in April 2024. In his application, the appellant suggested that additional documentation relating to a Child Protection Conference on 16 September 2002 should be available. It was submitted that there was material in existence which suggested that the conference considered the question whether V had witnessed her parents having sex and, if so, how and when that occurred. It was submitted that this would be relevant to the issue about whether the complainant had become sexualised by a means other than the alleged sexual abuse relating to the appellant. It was suggested that there had been a failure of disclosure during the trial process.

[27]The CCRC’s enquiries led it to the CPS file relating to the appellant’s conviction, in which was a document entitled “City and County of Cardiff Area Child Protection Committee” which was the minutes of an initial child protection conference dated 16 September 2002. There was also a further document entitled, “Social Work Pro Forma For Initial Child Protection Conference”. The date of the strategy discussion was 21 August 2002. The report was shared with [V’s] parents on 12 September 2002. We refer to these documents as “the UM10 documentation” because they were the subject of item 10 of the schedule of Unused Material at trial. The present appeal has proceeded on the basis that the UM10 documentation, though listed as an item of the unused material in the case and despite requests being made for it to be provided, was not provided to the defence. That was the conclusion of the CCRC and, having reviewed the evidence which led the CCRC to that conclusion, we agree with it.

[28]Subsequently, the CCRC received further documentation from South Wales Police. This documentation contained the minutes of a Child Protection Conference dated 16 December 2002 with three related reports, and a letter from DS Hicks summarising the 16 September 2002 Child Protection Conference. These documents were not within the CPS file. The present appeal has proceeded on the basis that this further documentation was not provided to the CPS and, consequently, was not provided to the defence. That was the conclusion of the CCRC and, having reviewed the evidence which led the CCRC to that conclusion, we agree with it. The undisclosed material The City and County of Cardiff Area Child Protection Committee minutes for the meeting on 16 September 2002

The undisclosed material

[29]The minutes of this multi-disciplinary meeting include the following potentially relevant entries: i) “There are some difficulties regarding friendships that [V’s father] considers unsuitable. … [There] appears to be a lack of support and disbelief of both mother and father and extended family members to these disclosures.”; ii) In relation to V’s sleeping arrangements at home: “… her parents have engaged with social services and have listened to concerns regarding the inappropriateness of [V] sleeping in her parents bedroom”; iii) “DS Steve Hicks, Police Child Protection Unit said there were specific concerns regarding contact with [the appellant] but he was also concerned at the inappropriate behaviour of [V’s parents], in particular the fact that they were having sexual intercourse in the presence of their daughter”;

The social work pro-forma for the 16 September 2002 Child Protection Conference

[30]The pro-forma (which appears to be authored by a social worker and team manager) includes the following potentially relevant entries: i) “Since [V] was a baby she has slept in her parent’s bedroom, [V] usually shares a double bed with [her mother] and [her father] sleeps in a single bed also in the room. [Her parents] are having intercourse while [V] is present but they believe that [she] is sleeping; however when [her father] asked, “[V] do you ever see mammy and Daddy having sex?” [V] placed her head on the back of the chair hiding her face while shaking her head. I advised [her father] that at 6 ½ years old it would be better if [V] had her own space and he and his wife had theirs. At present [her parents] have reported that they are decorating [V’s] room with the hope that she will move into a room on her own soon.”; ii) “[V’s parents’] opinion of the allegations made by [V] are “it is extremely unlikely that the incident ever took place, as [V’s mother] and paternal grandmother were downstairs”. When asked why [V] would say something like that [V’s father] informed me of the incident approximately two years ago with [V]’s friend B and their belief that the allegations may have come from this incident. [V’s mother] is adamant that the incident didn’t happen.” iii) When asked about different members of her family, V is recorded as having said that(a) the appellant made her happy because he buys her presents;

(b) her parents made her happy;

(d) a paternal cousin aged 4 ½ made her sad because he asked if he could see her wee wee and she said yes but only let him see her pants; iv) Under the heading “Emotional Warmth” it is recorded that “[V’s father] also informs me that he gives [V] kisses, when I asked on what part of [V's] body does he kiss her [her father] replied that he kisses [V] on the lips, but he makes sure his lips are dry. We talked then about the appropriateness of this, during the conversation [her father] changed his mind and decided that [V] is too old to be kissed on the lips, and in future he shall kiss [V] on the forehead.”; v) The risk analysis section repeated that V had slept in her parent’s bedroom since birth and that V’s parents were having sexual intercourse while she was in the room. It also recorded that the opinion of the family was that the alleged abuse was “extremely unlikely” to have taken place; vi) The risk analysis section also recorded that her father had forbidden V from seeing B as they had been caught exploring each other’s genitals. It was the opinion of the writer that this was “a quite extreme reaction to what is considered normal childhood exploration and behaviour”. The City and County of Cardiff Area Child Protection Committee minutes for the review meeting on 16 December 2002

[31]The minutes include the following potentially relevant entry:

“The Chair asked how [V] had reacted to news of charges against her uncle being dropped … . [Her father] reported that [V] had given him a card shortly after the incident to say “sorry”

South Wales Police Report of Meeting on 16 September 2022

[32]As well as rehearsing that the reaction of V’s father was inappropriate and that he said he thought his daughter had tempted the appellant, this report also records that V “sleeps in the same bedroom as her parents and appears to have seen them having sex. There has also been some revelations regarding [V] and other children experimenting and touching each other’s genitalia.”

The CCRC’s concerns

[33]We are grateful to the CCRC for the evident care taken in the investigation of this case and the compilation of the Statement of Reasons. The CCRC has applied the correct test for submitting a reference to the Court of Appeal and we accept without hesitation that the CCRC’s assessment that the case should be referred back to the Court was and is a reasonable one.

[34]The CCRC’s main concerns as articulated in the Statement of Reasons can be summarised relatively briefly: i) The CCRC concludes that the issue of V giving a detailed account of the appellant’s alleged sexual activity in her first police interview, when aged 6, was a key matter at trial; ii) V maintained that she never displayed signs of sexualised behaviour, had never witnessed any family member doing anything sexual and had not engaged in any sexual activity with B before being abused by the appellant. In this she was supported by the evidence of her father; iii) The non-disclosed evidence supports the assertion that V had witnessed her parents having intercourse as a child and that she was displaying sexualised behaviour before the alleged abuse by the appellant; iv) The non-disclosed material also provides support for the appellant’s assertion that V’s father did not believe that he had committed the offences and that his belief was, at least in part, founded on his experience of behaviour with B some two years before i.e. when V was about 4 years old; v) Viewed overall, the addition of the undisclosed material may render the appellant’s conviction unsafe.

The appellant’s submissions

[35]The appellant relies primarily upon the evidence in the undisclosed materials to the effect that: i) V had been sleeping in a double bed with her mother since birth with her father sleeping in a single bed in the same room. Her parents were having sexual intercourse in her presence. They thought she was asleep but it is a possible inference from her reaction when asked about it that she had in fact been awake on occasions; ii) V had engaged in sexualised behaviour with B involving the exploration of their genitals before the time of the alleged abuse by the appellant; iii) V indicated that the appellant made her happy, not sad; iv) The card in which she said “sorry” was capable of bearing the inference that she was apologising for making false allegations against the appellant.

[36]The appellant submits that this additional evidence is capable of going to the fundamental question whether V would have been able to describe oral sex and ejaculation as she did if it were not for being abused by the appellant. In addition it is said to go to the question whether V was truthful when denying having witnessed her parents engaging in sexual activity, whether there is support for the appellant’s assertion of sexualised behaviour and whether V was truthful in the allegations she made against him.

[37]In his oral submissions Mr Cotter emphasised that this was a pure “credibility case” where the jury had to be sure that V’s account of the alleged abuse was well-founded. The fact that the jury convicted by a majority may suggest that the issue was finely balanced for others in the majority. It was therefore a case where any support for the appellant’s account would be valuable in providing consistency and thereby buttressing his position. Conversely, any point on which it could be shown that V’s account was wrong would enhance the appellant’s position because inconsistency on V’s part might shake the confidence of the jury on the central issues. It is therefore important for any evidence that was capable of supporting the appellant’s account or weakening the impact of V’s account should be before the jury. In making this submission he draws attention to the fact (which he submits is unusual in cases of alleged historic sexual offending) that the offender went some way in conceding behaviour that might generally be thought to be inappropriate (such as kissing V on the lips) although not the subject of criminal charges. For this reason, additional information to the effect that (contrary to his evidence at trial) V’s father had been in the practice of kissing his daughter on the lips was of real significance for the safety of the appellant’s conviction.

[38]Turning to the question whether V had seen her parents engaging in sexual activity, Mr Cotter submits that the additional information about V sleeping in her mother’s bed and in the same room as both her parents supports the inference that V was sexually knowledgeable and therefore more likely to be able to describe oral sex and ejaculation without having been abused by the appellant as she alleged. He submits that her reaction when asked by her father whether she had seen her parents engaging in sexual activity could have been put before the jury as contradicting her denials in evidence that she had seen them.

[39]The additional information about V and B engaging in sexual activity well before the alleged period of the appellant’s abusing her goes to the same point of the likelihood that V’s allegations were founded on her knowledge from other experiences and not from the happening of the alleged abuse.

[40]Entirely realistically, Mr Cotter does not suggest that the additional evidence “bridges the gap” in the sense of showing that V had other experience that would enable her to make up the allegations of oral sex and ejaculation she levelled against the appellant. The highest that Mr Cotter can put his case is that it provides points of consistency and comfort for the appellant’s account and inconsistency and discomfort for the evidence of V and her father.

The Crown’s response

[41]The Crown submits that the additional evidence is of marginal significance.

[42]The assertion that V had seen her parents engaging in sexual activity was well known from the documentation that was available and was the subject of Agreed Fact 11. It formed the basis of a submission by the defence that V may have witnessed or been exposed to male genitalia and sexual activity. The additional information provided no further detail to suggest that she had or may have witnessed anything that would enable V to describe the allegations of oral sex and masturbation as she did. Similarly, the only information about what was being referred to as sexualised behaviour was very low grade – involving little more than wearing adult shoes and wearing makeup. Even the information about what she is said to have done with B at a time when she was about 4 years of age falls far short of anything that would enable her to translate her experience into the allegations of oral sex and masturbation that she made against the appellant.

Discussion and resolution

[43]The appellant’s submission that the undisclosed information “changes the evidential landscape” such that his conviction is unsafe must be considered in context. Part of that context is that there was substantial other evidence in the case, including evidence that could be and was deployed by the defence in attempting to cast doubt on V’s evidence. As was said by the different constitution of this Court in its ruling on the first conviction appeal, not only did the defence have significantly more material to be deployed during cross-examination that is often the case during the trial of sexual allegations of this kind, but the appellant had the benefit of an impeccable summing up about the dangers inherent in delay and where original materials are known to have gone missing: see [24] and [25] above.

[44]The second aspect of context is that the jury heard both V and the appellant give their evidence. V was rigorously and thoroughly cross-examined by leading counsel; but the jury believed her. Mr Cotter was able to cross-examine her on whether she had witnessed her parents engaging in sexual intercourse, and he did so. What he was not in a position to do was to put to V that she had learned about oral sex and masturbation from watching her parents, since he had no evidential basis for putting such a case. That remains the case even in the light of the further documentation that is now available. Mr Cotter told the Court that he did not cross-examine V’s father on whether she would have seen him and her mother engaging in sexual intercourse. We can well understand why he chose not to do so – but he could have done on the basis of the materials he had at trial. We are not remotely persuaded that the additional information about V’s sleeping arrangements casts doubt on the safety of the appellant’s conviction.

[45]We are not persuaded that the new information about V’s behaviour with B casts doubt on the safety of the appellant’s conviction. At the time of the alleged behaviour V was about 4. There is nothing in the material before us to suggest that the experimentation by two little girls of this age is what enabled (or contributed to enabling) V to give the description she did as a 6 year old of the appellant’s alleged offending against her.

[46]Nor do we consider that the additional information about V being kissed on the lips casts doubt on the safety of the conviction. The appellant accepted in interview and in his evidence that he kissed V on the lips. The fact that others (including her father) may have done so too does not materially support an allegation of sexualised behaviour in a 6 year old that makes it more likely that her allegations against the appellant were fabricated on the basis of other actual experience.

[47]In our judgment, the matters in the undisclosed materials do not (either singly or in combination) cast doubt on the safety of the appellant’s conviction. This appeal must therefore be dismissed.