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D G, R v. [2000] EWCA Crim 14 (17th February, 2000)
Case No: 99/1567/Z2
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
THURSDAY, 17 FEBRUARY 2000
B e f o r e :
LORD JUSTICE MANTELL
MR JUSTICE KLEVAN
and
HIS HONOUR JUDGE MARTIN STEPHENS QC
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Miss S Forshaw (instructed by Barnes & Taylor for the Appellant)
Mr J A Caudle (instructed by CPS for the CROWN)
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE MANTELL:
On 9th February 1999 following a trial lasting several days DG was
convicted at the Basildon Crown Court of fifteen offences against three of his
four children. They comprised six counts of rape, six counts of indecent
assault and three counts of cruelty. He was sentenced to a total of fourteen
years imprisonment.
He now appeals against his convictions with leave of the single judge.
All the offences were of some antiquity. The period during which it was
alleged they had been committed was September 1979 to September 1984. There
was no complaint to the police until December 1997. All four of his children
gave evidence.
The eldest, S, said that she had been repeatedly raped and indecently
assaulted by her father between the ages of eight and thirteen. The indecent
assaults took various forms but included cunnilingus and fellatio. She also
said that he was a bully. He would beat their mother and behave violently
towards the children. On one occasion, she said, he hung her up by her
clothing on the back of a door. Her evidence was led in support of three so
called specimen counts of rape , six of indecent assault and one of cruelty.
Next in age, J, complained of three isolated incidents of rape when she was
aged nine, eleven and twelve. She also complained of cruelty which was
reflected in a count of which the appellant was acquitted.
D, the third child, gave evidence about his father's cruelty towards him and
also of his violent conduct towards other members of the family. There were
three counts in the indictment of which the appellant was convicted on two. It
is of interest that the jury acquitted on two counts where in the one case J
and in the other D had claimed that they had been held by their ankles over a
sixth floor balcony.
The fourth and youngest child, E, spoke of her father's drunkenness and
violence. In particular she supported what D had said about being hit and hung
on the back of a door.
At an early stage the jury were told of the appellant's previous convictions.
It was his decision taken on advice. Those convictions did not include any of
a sexual nature. That having been done the way was left open for uninhibited
cross examination of the children. S, J and D had their previous convictions
for dishonesty put to them. D was obliged to admit to heroin addiction. S had
a colourful past, of which more later, and that was put. J had required
extensive periods of counselling.
In his own defence the appellant denied all the allegations. He suggested
that the children had put their heads together and made up the allegations most
likely in order to obtain compensation. He called his mother to contradict
certain of the allegations. Much was made of the fact that no complaint had
been made until December 1997 although all four children had had extensive
contact with various care agencies.
There were originally eight grounds of appeal. Leave was expressly given on
two, grounds seven and eight. It is not entirely clear as to whether or not
the single judge refused leave on the others. It makes no practical difference
because, in the event, counsel has abandoned grounds 1 to 3 and fully argued
grounds 4 to 6. We refuse leave on grounds 4 to 6 and would not have found it
necessary to call upon the respondent if they had formed part of the
substantive appeal. However, we reserved our reasons which out of deference to
counsel's careful submissions we proceed to give now.
Ground 4.
At the start of the trial on 18th January the appellant had the advantage of
being represented by highly respected Queens Counsel and very experienced
junior counsel. Unhappily leading counsel's mother had died on the 9th of
January. The funeral was to take place on Friday 22nd January and it was
understood that the court would not sit on that day. Before then, however, S
had come over from Belgium, where she then lived, and had completed her
evidence either on the Wednesday or at some time on the Thursday. By the time
the court rose on the Thursday J was in the witness box. It seems that the
appellant and the solicitor acting for him were dissatisfied with leading
counsel's cross examination of S. Over the weekend it was decided to dispense
with his services. On the Sunday junior counsel was informed that it was
proposed to withdraw the leader's instructions. That was done on the Monday
morning and the judge informed. In fact leading counsel went to see the judge
in his private room to explain what had happened. Junior counsel then asked
for the jury to be discharged. The application was refused. That is the basis
of this ground of appeal. It is said that the refusal to discharge the jury
was an unreasonable exercise of discretion.
This is always a difficult matter. Here an important witness had come from
abroad to give evidence and to be cross examined about matters which were no
doubt painful to recall. On the assumption that she was a truthful witness it
must have been a most dreadful ordeal. At that time there was no way of
knowing whether she could be persuaded to return and re-enter the witness box.
Also it is well known to those who practice or have practised in the criminal
courts that defendants, particularly experienced defendants, will sometimes
seek to abort a trial if there is some prospect of a damaging witness failing
to attend or to come up to proof a second time. Here leading counsel has said
that he cannot say that the decision to withdraw his instructions was
capricious. The judge proceeded on that basis and so must we. However, the
judge was entitled to have regard to the manner in which the case had been
conducted thus far and to whether or not there was a sufficiently experienced
and competent junior to be able to continue. If, of course, the performance of
leading counsel had not been merely lack lustre but so woefully incompetent as
to have done serious damage to the appellant's case then that, too, would have
been a powerful factor in influencing the direction in which discretion was to
be exercised. Leading counsel, himself, acknowledges that he was not at his
best. But in the judge's view as an objective observer of the cross
examination it was what he would normally expect of good Queens Counsel. We,
of course, have each read the cross examination. On paper, at least, it
appears to us to have been not only cross examination of a satisfactory
standard but cross examination conducted at a highly competent and professional
level. Leading counsel did not adopt a bullying manner or a hectoring
technique. It was not of the "I put it to you" variety of cross examination.
He did not, so it seems, reduce the witness to tears, force her to retract, or
to admit to an improper motive. However, what he did do was to lay the
foundation for the submissions which he would hope to be able to make at a
later stage. There were a number of areas in which S was vulnerable. In the
first place she had said that she had been hung out of her grandmother's window
which was at a high level. She said that she had seen her father stamp on her
grandmother's head. Leading counsel knew that waiting in the wings was the
grandmother who would be able to say that at the material time she lived in a
ground floor flat and as to stamping there had been an incident which could be
mistaken for such but that had occurred before S was born. So leading counsel
carefully persuaded the witness to confirm and underline her recollection of
events no doubt with the intention of undermining her credibility at a later
stage of the trial. Similarly there was the question of delay and that was
probed with some delicacy and skill as was the question of whether or not S had
ever reported the abuse to any one of a number of social workers. Knowing that
such a complaint would most likely have been recorded and that no such record
existed he persuaded the witness to confirm that she had told a social worker
called Y. Then again he explored in a manner which this court finds impossible
to criticise the reasons for making the allegations and the possibility of
there being a financial motive. Finally he dealt with the opportunities for
collusion. We can well see that leading counsel's technique might have
disappointed someone unversed in the art of cross examination but we would hold
the criticisms made of it to be wholly unwarranted. It was, of course, a
matter for the appellant as to whether or not he chose to dispense with the
services of leading counsel but he could not expect as of right the opportunity
to start over again with fresh leading counsel and a second bite at the cherry.
Having reviewed all the material considerations the judge said:
"This sort of thing does happen, even in serious cases and more serious cases
than this. It is indeed one of the functions of junior counsel to step into
the breach in such circumstances. Mercifully in this case we have not got an
inexperienced straw junior, we have a junior of considerable experience, who, I
have no doubt, will represent this man well. Obviously I do not expect her to
start cross examination this afternoon or anything of that nature. She may
name a time when she feels she will be ready to conduct this case further.
That is my judgment."
That seems to us to have been a perfectly proper exercise of discretion by the
trial judge in the circumstances of this case. The problem, if such it was, of
explaining to the jury why leading counsel was no longer acting was easily
overcome by telling them the truth, namely that he had suffered a personal
tragedy.
Grounds 5& 6.
These arise from rulings made by the trial judge following applications under
section 2 of the Sexual Offences Amendment Act 1976. Earlier he had allowed an
application made by junior counsel for the appellant that S be recalled to be
asked certain questions which he limited to matters which might not have been
sufficiently explored on the earlier occasion. He said that he would not
"countenance a revamp of the cross examination" as also he would not
countenance an application for the jury to be discharged if S refused to come a
second time. In particular the judge refused to allow cross examination into
her alleged activities as a prostitute in Belgium and with regard to the
details of a newspaper article the factual basis for which had been provided by
S and for which she had been paid. The newspaper article itself included a
photograph of S somewhat provocatively attired and an account of her adventures
in bed with a well known television actor. The judge permitted questions as to
the selling of the article and its general nature but refused to allow the
article itself to be exhibited or for counsel to explore the more salacious
aspects of the report. We have read his rulings and can find nothing to
criticise let alone condemn in the manner in which he exercised his discretion.
The mere fact that the appellant had chosen to put his character before the
jury did not require the judge to disregard the protection of witnesses which
section 2 is intended to afford.
Ground 7.
This is, or we should say was, a complaint about the adequacy of the direction
given to the jury with regard to delay. It was founded on what had been said
by this court in R -v- Percival TR 19th June 1998. That was a
case in which this court expressed the view that in all cases where there had
been long delay as in this it was the judge's duty to give a strong direction
as to the prejudice to the defendant which might arise from such delay. The
court did not suggest what an appropriate direction might be in such
circumstances. However Percival has been overtaken by
the case of R -v- Brian M TR 17th June 1999 in which the court
considered Percival. In M giving the judgment of
the court the Vice President said this:
"We find in the judgment no attempt by the court to lay down principles of
general application in relation to how judges should sum up in cases of delay
and we accordingly would wish to discourage the attempts being made, with
apparently increasing frequency, in applications and appeals to this court to
rely on Percival as affording some sort of blue print for
summing's up in cases of delay. It affords no such blue print. Indeed in this
area, as in so many others, prescription by this court as to the precise terms
of a summing up is best avoided. Trial judges should tailor their directions
to the circumstances of the particular case. In a case where there have been
many years of delay between the alleged offences and trial, a clear warning
will usually be desirable as to the impact which this may have had on the
memories of witnesses and as to the difficulties which may have resulted for
the defence. The precise terms of that warning and its relationship to the
burden and standard of proof can be left to the good sense of trial judges with
appropriate help and guidance from the Judicial Studies Board."
It is fair to say that the transcript in R -v- M was not
available to junior counsel when drafting grounds of appeal nor to the single
judge when granting leave. All it is necessary for us to say is that at p.20
of the transcript and following the judge gave a direction on delay which not
only conforms to the advice given in R -v- M but also to the
direction suggested by the Judicial Studies Board. In the light of R -v-
M Miss Forshaw for the appellant has not pressed ground 7 and we find
it to be without substance.
Ground 8.
This is a most unusual ground. It depends upon the assertion that in the
course of summing up the judge showed bias against the defendant not only in
what he said but in the way that he said it. As to the first aspect we have
had our attention drawn to a number of places in the summing up where comment
is made which would suggest the judge's preference for the prosecution version
rather than that of the defence. That there are such comments cannot be
gainsaid. However, they are few and far between and in our assessment from a
reading of the summing up it cannot be said that it was unbalanced or unfairly
pro-prosecution. However Miss Forshaw goes further and says that by his
intonation during what she describes as a "mesmerising performance" the judge
dressed all the prosecution witnesses in white and the defendant in black. To
make good her submission she invited the court to listen to a recording of part
of the summing up. We agreed somewhat reluctantly and would be dismayed to
think that in so doing we have set any kind of precedent for the future.
Having done so, however, we are quite unable to accept the submission which has
been placed before us. True it is that this judge does not speak in a
monotone. There is nothing soporific about his delivery. However, apart from
a obvious and laudable desire to command the attention of the jury we could
detect nothing of the melodramatic of which Miss Forshaw complains. In
conclusion we would simply say that taken singly or together there is nothing
in the grounds or proposed grounds of appeal which leads us to think these
convictions unsafe and the appeal must be dismissed. But before leaving this
matter and having regard to its background we should wish to pay tribute to the
manner in which Miss Forshaw has presented this appeal and we are entirely
confident that the appellant was equally well served during his trial.
© 2000 Crown Copyright
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