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ALEXANDER ANDREW BELL, R v. [1997] EWCA Crim 1200 (15th May, 1997)
No:
9700085 Z4
IN
THE COURT OF APPEAL
CRIMINAL
DIVISION
Royal
Courts of Justice
The
Strand
London
WC2
Thursday
15th May 1997
B E F O R E :
THE
VICE PRESIDENT
(
LORD
JUSTICE ROSE
)
MR
JUSTICE KEENE
and
HIS
HONOUR JUDGE HYAM
(
acting
as a judge of the CACD
)
- - - - - - - - - - - -
R E G I N A
- v -
ALEXANDER
ANDREW BELL
- - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 831 3183 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
MR
P HIGGINSON
appeared on behalf of the Appellant
MR
N MOORE
appeared on behalf of the Crown
- - - - - - - - - - - -
JUDGMENT
(
As
Approved by the Court
)
- - - - - - - - - - - -
Crown
Copyright
Thursday
15th May 1997
JUDGMENT
THE
VICE PRESIDENT: On 18th December 1996, at Oxford Crown Court, after a trial
before His Honour Judge Clark, this appellant was convicted on three of the
counts in the indictment which charged indecent assault, Counts 3, 4 and 5, and
he was acquitted of like offences on Counts 1, 2 and 6. He was subsequently
sentenced to 12 months' imprisonment on each count concurrently. Against that
conviction he appeals by leave of the Single Judge.
The complainant, in relation to all six counts, was a girl born on 13th
May 1980, and she was 15 at the time of the alleged offences. She was the
niece of a woman called Elizabeth McMenemy, who lived in Oxford with the
appellant. They had been together for some years and had two young children.
The counts in the indictment related to four occasions in July 1995 and two in
April 1996.
Count 1, on which the appellant was acquitted, concerned an occasion in
July 1995 when it was common ground that the appellant had given the
complainant a massage. Her account was that, in the course of so doing, he
unclipped her bra, puts his hands down her front and kissed her neck, and that
he was massaging her breasts when Miss McMenemy came downstairs. On that, as
on all other, occasions, the appellant denied any sort of indecent behaviour.
Count 2 related to events later the same day. The complainant was
recovering from an asthma attack and had difficulty sleeping. She went
downstairs. The appellant was watching the television and she sat down on the
settee. According to the girl he put his arm round her and started kissing her
on the mouth. He pulled her down, pushing his body against her so she could
feel his erect penis between her legs on the top of her clothing, and he kept
trying to put his hand down her underwear and she kept pushing his hand away.
In relation to that the appellant was acquitted.
Count 3 related to an occasion two days later when the appellant drove the
complainant to park in some bushes near the river. According to the girl the
complainant suggested she get in the back of the car. She did so, albeit that
she was frightened, and there he took off her T-shirt and bra and started
kissing and rubbing her breasts, and said that she was good looking and had
"big tits" and mentioned, according to the girl, something about her aunt being
not good in bed. On that count he was convicted.
Count 4 related to an incident the following day when the complainant was
walking in the park with the appellant and his two small sons. She said that
she sat down on a log. The appellant sat behind her, put his arms round her
waist and up her T-shirt, and started feeling her breasts, having undone her
bra, and kissed her. She asked, "What if the boys see you?", and he said it
did not matter, they would not see anything. She noticed, when he tried to pull
her down on him, that his jeans were unzipped and his erect penis was exposed.
In relation to that matter, she said when they returned to the house she was
too scared to say anything, and the appellant was convicted on that count.
Count 5, on which he was also convicted, related to an incident on Easter
Sunday in April 1996. It was another occasion on which the appellant drove the
complainant to the park. He there, she thought, rubbed her breasts and kissed
her, but she was not sure about that, but she did remember him sitting down,
spreading his legs and pulling her down to sit between his legs, kissing her on
the mouth, unbuttoning her jeans and putting his hand inside her underwear and
rubbing her private parts. She said they were interrupted by one of his sons
who announced he needed to go to the lavatory, and the appellant told him to
urinate in the bottle which he, the boy, was carrying.
On Count 6 the appellant was, as we have said, acquitted. That related to
an incident said to have taken place later on Easter Sunday when the appellant
was lying on one of the boy's beds and the complainant was sitting on the
floor, and he asked her to sit on the bed and pulled her down onto the bed,
kissing her on the lips; and she thought he put his hand under her T-shirt and
felt her breasts, but they were interrupted by the arrival of Miss McMenemy.
The incidents of which complaint was made came to light because, when the
girl returned to her home in Scotland after the visit to Oxford, she was
thereafter told that she was going to go back to Oxford for the summer: at
that stage she ran away. She said she felt guilty because she felt she had led
the appellant on because she was wearing short skirts and had not stopped him.
The police were informed. The appellant was arrested on 29th April 1996
and he made no reply in interview.
In cross-examination the girl had said that she had not dozed off during
the incident said to give rise to Count 1.
The appellant, in the presence of his legal representative, denied all
knowledge of any criminal conduct at all. He said he was not particularly
attracted to the girl. She was physically, but not mentally, mature, and he
thought she might be making the allegations against him because she had a crush
on him.
The appellant gave evidence before the jury. He agreed, as we have said,
that he had massaged her back and shoulders on the occasion giving rise to
Count 1, but he denied touching her breasts, and then Miss McMenemy had come
in. So far as the incident said to give rise to Count 2 was concerned, he said
that he had merely been comforting the girl following her asthma attack, and
there was no sexual motive involved. In relation to Count 6, he denied
touching the girl's breasts. He said they were playing a Nintendo game in the
bedroom. He denied ever having exposed his penis to her, and there was no word
of truth in those allegations.
Miss McMenemy gave evidence for the defence. In relation to Count 1 she
said that the complainant was sound asleep when she arrived and she shook her
and there was no response. In relation to Count 2 she checked the complainant
after the asthma attack and found her fast asleep, and there was no contact of
an improper kind between the appellant and the girl. In relation to the events
said to give rise to Count 6, she said that, when she went into the bedroom,
she saw no sexual contact of any kind between the complainant and the appellant.
The submissions made to this Court on behalf of the appellant by Mr
Higginson, who represented the defendant at the trial, are twofold. There was
a third ground of appeal set out in paragraph 7 of the perfected grounds which
is not pursued.
The first submission is that the verdicts of guilty should be set aside as
being unsafe in that they demonstrate inconsistency. Mr Higginson submits that
the verdicts are inconsistent because the jury must have rejected the girl's
evidence in relation to some incidents, and therefore it cannot be safe to rely
on their acceptance of her evidence in relation to other matters.
As it seems to this Court, there is an obvious explanation as to why the
jury reached different verdicts in relation to different counts. It is, as it
seems to us, of significance that the three counts on which the appellant was
acquitted by the jury - Counts 1, 2 and 6 - were the counts, and the only
counts, in relation to which Miss McMenemy gave evidence. It follows, in our
judgment, that it was open to the jury to conclude that, although they were
sure that guilt was established in relation to Counts 3, 4 and 5, about which
Miss McMenemy did not give evidence, they were not sure, in the light of the
evidence which they had heard from her, that guilt was proved in relation to
those counts. It is perhaps not without significance that, as appears at page
6D of the transcript of the summing-up, the defence, perfectly properly, relied
upon the evidence of Miss McMenemy as casting doubt on the evidence of the girl
in relation to those matters about which she gave evidence.
There is, in any event, as it seems to us, a difficulty with Mr
Higginson's submission in relation to whether there is any inconsistency at
all. As it seems to us, there is no logical inconsistency in the verdicts
returned by the jury, and unless there is a logical inconsistency, the question
of whether or not the jury's verdicts can sensibly be explained does not
generally arise. There have recently been a number of appeals to this Court
based on allegedly inconsistent verdicts, and it is perhaps therefore worth
emphasising that it is axiomatic that, generally speaking, logical
inconsistency is an essential prerequisite for success on this ground: see
Durante
91972) 56 Cr.App.R. 708, at page 714, and
Warner,
unreported, Court of Appeal, Criminal Division, transcript dated 17th February
1997, BAILII:
[1997] EWCA Crim 480.
There are, of course, exceptional cases of which
Cilgram
(1994) Crim.L.R. 861, provides an example, where a verdict may be quashed
because, although there is no logical inconsistency, the particular facts and
circumstances of the case render the verdict unsafe. However, it is to be noted
that in
Cilgram
this Court, differently constituted, expressly rejected the submission that,
where a complainant's credibility is in issue and her evidence is
uncorroborated, guilty verdicts must be regarded as unsafe because the jury
also returned not guilty verdicts in relation to some of the complainant's
allegations.
As was pointed out by Evans LJ, giving the judgment of the Court in
Warner,
see transcript page 15F, such a conclusion would be contrary to the proposition
that juries should generally be directed to give separate consideration to each
count.
The jury in the present case was so directed. There was, as it appears to
us, no logical inconsistency between the verdicts which they returned, but, in
any event, there was, as we have indicated, a good reason for the jury to
differentiate between the counts in the way which they did. Accordingly that
ground fails.
Mr Higginson's further submission is based on the case of
Makanjuola
(1995) 2 Cr.App.R. 469. It is accepted that it was for the judge's discretion
whether or not to give the jury a direction as to the extent, if at all, to
which they should look for confirmation, and, in particular, as to whether the
judge should warn the jury, if it was the case, to approach unconfirmed
evidence of a complainant with circumspection. It is to be noted that at page
5D of the summing-up the judge did direct the jury expressly that there was no
independent evidence to support the girl's account.
Mr Higginson accepts that, by reference to principle (3) identified by
Lord Taylor CJ at page 473B in
Makanjuola,
there was no evidential basis for suggesting that the evidence of the
complainant was unreliable. However, submits Mr Higginson, where the judge, in
the exercise of his discretion, decides not to give a warning of the
desirability of exercising special care in relation to unconfirmed
complainant's evidence, it is particularly incumbent upon him to give the
appearance of neutrality in his summing-up.
Mr Higginson makes no complaint about the directions which the learned
judge gave as to law or fact in this case, but he draws attention to a number
of passages in the summing-up which, he says, rendered it unbalanced. At page
7A, in relation to Count 2, and at page 7F in relation to Count 3, the judge
referred to "little bits of detail" which he said the prosecution relied on as
giving credibility to the girl's account. There is a similar passage to which
Mr Higginson referred at page 8F, which relates to Count 3, and at page 9E,
which relates to Count 5, and Mr Higginson also refers to a passage in relation
to Count 6 at page 10E where the judge said:
"Is
that the child talking to you who does not quite understand where she is? Or
is that just some icing she is putting on this false story?"
Mr Higginson refers also to a passage at page 12E, where the judge said:
"What
do you make of the two principle witnesses? The defendant and the girl Sarah?
Is the defendant the victim of wicked and false accusations, a totally innocent
man the victim of a teenage girl for some reason making monstrous allegations?
Or is Sarah the victim of his lechery?"
Mr Higginson submits that by those passages the judge too clearly
indicated his own preference in favour of the prosecution.
There are, as it seems to us, two difficulties with that submission.
First, the jury acquitted on Counts 2 and 6, to which two of the passages
relied upon by Mr Higginson relate. Secondly, in a number of passages,
(including those at page 10E and 12E, to which we have referred, and a further
passage at page 5E, where the judge said:
"Could
she have concocted it for some reason or other? Or is she giving a detailed
account of the way on six occasions the defendant took advantage of her?")
the
judge balanced the question which he posed, which might, in isolation, have
been construed as favourable to the prosecution, with a question which could be
construed as favourable to the defence.
Having read the summing-up as a whole, we are driven to conclude that it
was succinct, fair, accurate and balanced. We are unpersuaded that the second
of the submissions advanced by Mr Higginson has more substance than the first.
It follows that this appeal must be dismissed.
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