R v R
R v R
 EWCA Crim 2741,  All ER (D) 300 (Nov)
Judgment Date: 29/11/2010
Catchwords & Digest
CRIMINAL LAW, EVIDENCE AND PROCEDURE – SENTENCE – IMPRISONMENT – LENGTH OF SENTENCE – OFFENCES COMMITTED BEFORE 16 SEPTEMBER 1985 AND COMPLAINANT UNDER 16 YEARS OF AGE – SENTENCES OF THREE YEARS’ IMPRISONMENT IMPOSED ON SPECIFIC COUNTS WHERE MAXIMUM SENTENCE BEING TWO YEARS’ IMPRISONMENT – WHETHER SENTENCE UNLAWFUL
CRIMINAL LAW, EVIDENCE AND PROCEDURE – TRIAL – SUBMISSION OF NO CASE TO ANSWER – INDECENT ASSAULT – INCEST – DEFENDANT ACCUSED OF SEXUALLY ABUSING DAUGHTERS – DEFENDANT ALLEGING COLLUSION BETWEEN COMPLAINANTS – INCONSISTENT STATEMENTS – JUDGE REJECTING SUBMISSION OF NO CASE TO ANSWER – WHETHER JUDGE ERRING – WHETHER JUDGE GIVING ADEQUATE DIRECTIONS TO JURY – WHETHER CONVICTION UNSAFE
The defendant was charged with a number of counts alleging indecent assault and incest against his two daughters, K, and P. Counts 1-18 alleged sexual abuse of K over a 13 year period: from 1980 to 1982, while she was under 16; the defendant was alleged to have indecently assaulted her by touching her vagina using fingers, vibrator or pipette, and by touching her anus (counts 1-8); from 1982 to 1993 he was alleged to have regularly had sexual intercourse with her (counts 9-18). Counts 19-27 alleged sexual abuse of P over a 6 year period: from 1980 to 1984, while she was under 16; the defendant was alleged to have indecently assaulted her by touching her vagina (counts 19-22); and between 1984 and 1986 he was alleged to have had sexual intercourse with her on a number of occasions (counts 23-27). Matters came to light following an investigation by social services into allegations by K’s young daughter against a third party. Counts 23-27 all charged the defendant with incest with P. Counts 23, 24 and 25 were specimen counts, each covering a one year period (between January 1983 and January 1986). Counts 26-27 related to specific locations, in a caravan and at the defendant’s workplace. In the event, it was agreed that counts 26-27 were not supported by the evidence.
In her first interview, P did not allege incest against the defendant. In her first witness statement, she stated that there had been an occasion where the defendant had placed a condom on his erect penis but she stated that she had no memory of whether sexual intercourse had taken place.
In her second witness statement P alleged that the defendant had had sexual intercourse with her. There was expert evidence from two psychologists, one on behalf of the Crown and one on behalf of the defence, as to the operation of the human memory.
P’s previous inconsistent statement was adduced, pursuant to s 119 of the Criminal Justice Act 2003, and it was put to her in cross-examination. The defence made a submission of no case to answer on the basis that, since P gave evidence at trial that she could remember only one occasion of sexual intercourse, only one count of incest should be left to the jury, so that count 23 could remain.
The judge rejected the submission. The defendant gave evidence at trial denying that any abuse had occurred. He contended that there was evidence of collusion between K and P and that they had both been subject to pressure from their mother who had used their complaints to blackmail him. In his summing up, the judge described P’s second statement as saying that there were ‘several occasions’ of sexual intercourse.
In directing the jury, the judge did not mention the material inconsistencies in P’s account over time. His direction elided the effect of inconsistencies on a witness’s reliability and the status of an inconsistent statement as evidence of the matters stated in it.
The judge did not give the jury the necessary warning that if they were to convict the defendant on counts 24 and 25 it had to be on the basis of P’s second statement. He did not give them the guidance they needed on how rationally they might rely on P’s second statement in preference to the first statement or P’s evidence at trial.
The defendant was convicted on all counts except counts 18, 26 and 27, on which he was found not guilty at the direction of the judge. On counts 1-8 he was sentenced to 2 years’ imprisonment concurrent on each; on counts 9-17, to 6 years’ imprisonment concurrent on each; on counts 19-20, to 3 years’ imprisonment concurrent on each; on counts 21-22, to 2 years’ imprisonment concurrent on each; on count 23, to 4 years’ imprisonment, to run consecutively; and on counts 24-25, to 4 years’ imprisonment concurrent on each; making a total of 10 years’ imprisonment. The defendant appealed against conviction and sentence.
He submitted, inter alia, that the conviction was unsafe where the judge had erred in rejecting a submission of no case to answer on counts 24 and 25 in circumstances where counts 26-27 had been withdrawn from the jury for lack of evidence; that his summing-up was deficient in its directions of law on character, cross-admissibility of the complainant’s evidence and collusion, and its summary of the defence case. A further issue arose as to the lawfulness of the sentences of 3 years’ imprisonment on counts 19 and 20 where the maximum sentence for those offences of indecent assault was 2 years’ imprisonment, as the offences were committed before 16 September 1985 and the victim was under 16 years of age.
The appeal against conviction would be dismissed.
The appeal against sentence would be allowed.
(1) In the instant case, there was a sound basis for the judge’s decision to leave counts 24 and 25 to the jury. Section 119(1) of the 2003 Act applied to P’s second statement and to rely on it was not a misuse of the statutory power. The statement was put to P at the trial, she admitted that she had made it, and there were material inconsistencies between the statement and her evidence at trial as to the number of occasions of sexual intercourse she recollected. The statutory conditions for admissibility of the statement as evidence of the matters stated in it were met. The differences between the statement and P’s evidence at trial were not, however, so great as to make it unsafe for any reasonable jury to place reliance on the statement. What she said about the statement at the trial was far from a disavowal of the earlier statement or a complete change of evidence. The defence was able to, and did, carry out a full cross-examination on the inconsistencies in P’s account at various times and on other matters concerning her reliability. It was for the jury to assess P’s overall reliability in these circumstances and in particular to decide whether to accept the second statement in preference to the account given in oral evidence or to the first statement. The court did not agree that a rational jury, properly directed, could not properly accept the second statement. The instant case was not one in which the counts ought to have been withdrawn on the basis of the second limb of R v Galbraith (see  of the judgment).
(2) The judge’s direction on the evidence, was neither particularly elegant nor as detailed and tailored to the facts of the case as would have been expected and he should have given the jury more help. However, the direction had touched adequately, if somewhat elliptically, on the evidential status of different accounts given by a witness, and it had to have been clear to the jury that in relation to P the issue was whether they accepted what she said in the second statement (to which the judge made further, specific reference when summarising the evidence) and that if they did accept it they were entitled to act on it. The judge’s description of the second statement as saying that there were ‘several occasions’ of sexual intercourse may have been a slight watering down of its import but the jury were well able to assess for themselves what the second statement meant and the judge’s observation cannot have done any damage to the defence case.
It followed that the conviction was not unsafe (see , ,  of the judgment). Appeal against conviction is dismissed.
(3) The sentences of 3 years’ imprisonment on counts 19 and 20 were unlawful and they would be quashed and substituted by a sentence on counts 19 and 20 to 2 years’ imprisonment, concurrent, in each case. The total sentence of 10 years’ imprisonment was unaffected (see  of the judgment).