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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> NKA, R. [2015] EWCA Crim 614 (18 March 2015) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/614.html Cite as: [2015] EWCA Crim 614

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		18th March 2015

THE LORD CHIEF JUSTICE: I shall ask Mr Justice MacDuff to give the judgment of the court.

MR JUSTICE MACDUFF:

1. On 4^th June 2014, following a trial in the Crown Court at Isleworth, the applicant was convicted of two counts of causing a child under the age of 13 (his stepdaughter) to engage in sexual activity. He was sentenced to a term of three and a half years' imprisonment concurrent on each count. He was acquitted on three like charges in relation to a different complainant.
2. The applicant renews his application for leave to appeal against conviction after refusal by the single judge.
3. Reporting restrictions apply in this case. No report shall be issued which is likely to identify either of the two complainants. We shall refer to the stepdaughter as "MH" and to the other complainant as "S".
4. MH was born in June 2003. The applicant and MH's mother were married in 2006. They had three other children together, born respectively in 2008, 2009 and 2010. In June 2012, around the time of MH's ninth birthday, she told her mother that the applicant had made her touch his private parts. The applicant was confronted. MH modified her account. The applicant denied any wrongdoing and it appears that the mother was satisfied and in the event the matter was taken no further.
5. In September 2012 two relatives came to live with the family as foster children. The older one was the 12 year old girl, "S"; the younger child was a boy. Strictly speaking, they were the aunt and uncle of MH.
6. In October 2012 the two girls together made disclosure to the mother. S said that the applicant had touched her vagina. MH said that when she was in the lift with the applicant he would take her hand and place it onto his penis. The flat in which they lived had a lift to the ground floor.
7. The police were notified and the applicant was arrested. S was the complainant in respect of the three counts of which the applicant was acquitted by the jury.
8. MH gave an Achieving Best Evidence interview on 1^st November 2012. In that, she said that the appellant made her touch his "privates" over his clothes when they were in the lift together. We have read the transcript of this interview which was given, we remind ourselves, at a time when MH was 9½ years old. We pause to note that the application is based almost entirely on the undoubted inconsistencies between: first, what this young complainant said in the interview and what she said in cross-examination and re-examination live before the jury; second, what she said in parts of her evidence before the jury and what she said in other parts of her evidence; and third, what she said in evidence and what it was reported she had said to her mother. These inconsistences were, of course, obvious to the jury and were fully explored in the course of the trial.
9. In her ABE interview the complainant gave what we see to be an internally consistent account which must have come over as compelling evidence. She was clear in what she said had happened. When brought back to the subject, she repeated what she had said earlier. In short, these incidents had been going on regularly and for some time. They occurred in the lift, often when her younger brother and younger uncle were present, but not when other adults were present. She drew a picture which made clear what she meant by his "privates". She consistently said: "… he always, like, erm, takes my hand and touch his things and I don't like it …" The most recent occasion was a few days earlier, perhaps on the Wednesday and the Thursday. She was asked what his privates felt like. She said that she did not really feel that much. Sometimes his belt got in the way. She then said that S had told her it was "squishy", and she then remembered that it did feel "squishy". The jury witnessed that interview and had every opportunity to make a judgment about it. The ABE interview was conducted immediately after the complaint. It was intended, as its name suggests, to achieve best evidence.
10. It is of some note and concern that the trial of this matter did not take place for some 18 months, by which time MH was a few days short of her eleventh birthday, and in the meantime much water had passed beneath the bridge.
11. In the interim MH had been seen by a social worker called Lisa. She told Lisa that, in respect of what she had said about events in the lift, there had been a misunderstanding. Not surprisingly, Miss Cruickshank asked her questions about that. What was a misunderstanding and did she know what it was? At face value, it appeared that MH was now seeking to withdraw what she had previously said about events in the lift. Matters did not become any clearer in re-examination.
12. In her comprehensive Advice and Grounds of Appeal, Miss Cruickshank has taken us to many different places in the evidence which in some places show frank inconsistencies and in other places apparent confusion. At one point MH appeared to be saying – and Miss Cruickshank would say that she actually was saying – that she was feeling his belt and items in his trousers' pocket. That was all material before the jury.
13. At the heart of this appeal is the submission that when MH gave evidence before the jury she contradicted her earlier evidence.
14. We now turn to the grounds of appeal, many of which overlap or are, frankly, repetitive and effectively come down to the same thing. The first ground is that the judge should have acceded to a submission of no case to answer. That was a matter entirely for the judge. There was in the ABE interview adequate evidence upon which the judge was entitled to leave the matter to the jury. He considered the Galbraith principles fully and properly, and directed himself correctly. He had regard to all the appropriate matters. It was for the jury to assess: taking everything into account, could they be sure that the ABE interview was indeed the best evidence upon which, whatever occurred later, they could rely to be sure of guilt? The judge was entitled to reach the conclusion that he did.
15. In relation to grounds 2 to 6, which we do not set out here, overlapping as they do and highlighting the inconsistencies and the confusion in the evidence, we agree with the single judge who refused the application on paper. We do not accept that the jury had an impossible task to choose between two competing accounts. It may have been a difficult task, but one that it was for them to determine. There was more than ample material upon which they could rely to reach a conclusion that they could be sure that the activity took place. Nor do we accept that the judge failed adequately to direct the jury as to the inconsistencies. He repeatedly referred in the course of his summing-up to those matters.
16. There is a discrete ground 7 which relates to the failure of the prosecution to provide CCTV evidence from the lift. However, there was more than adequate evidence that the recordings had been considered and had shown nothing. They had been unfortunately lost in the meantime.
17. We consider that there is no merit in this renewed application for leave to appeal against conviction and it is accordingly refused.
18. We add the following comments. Unusually – perhaps uniquely – we note that the judge gave his summing up in two parts. He purported to sum up the law in the first part, and then counsel made their speeches. He then returned to his summing-up and summed up the facts. This is contrary to the express provisions of the Criminal Procedure Rules which lay down the order in which events take place in a Crown Court trial. None of the members of this court has experienced this practice previously. Counsel tells us that neither has she. This is not something that should be repeated. It could in many cases lead to considerable confusion. This court takes the view that in all cases judges in a criminal trial should sum up the law and the facts at the conclusion of counsel's speeches in the normal way.
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