[1993] EWCA Crim J1112-30
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Schiemann and Mr Justice Wright
No. 92/5165/Y3
Regina
and
Raymond Robinson
MR ALUN JONES QC appeared on behalf of THE APPELLANT
MR DAVID GREEN appeared on behalf of THE CROWN
1
( As approved)
2
Friday 12 November 1993
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THE LORD CHIEF JUSTICEOn 28 July 1992, at the Central Criminal Court this appellant was convicted of indecent assault on count 2 of an indictment and rape on count 3 by a majority of 10 to 2. He was sentenced to concurrent terms of three years and five years imprisonment respectively. Not guilty verdicts were entered by direction of the learned judge on counts 2 (rape) and 4 (buggery). A count of theft on another indictment was ordered to lie on the file.
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He now appeals against conviction by leave of the Single Judge. The sole ground of appeal is that the learned judge ought not to have admitted the evidence of an educational psychologist, called on behalf of the Crown, to speak as to the reliability of the complainant.
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The appellant had a relationship intermittently during the mid 1980's with the complainant's mother. The girl herself was 15 at the time of the alleged offences and 17 at trial, but it was clear that she was very backward. Her evidence was that during a period in late 1990, when the appellant was staying at the family home, he baby-sat two or three times a week for her and her younger brother and sister. On one such night she alleged the appellant approached her on the settee and started to touch her. She protested and he told her not to worry. He asked her to play with his penis which she refused. Eventually he ejacul*ted over her and told her to rub it in as it was good for her skin. She said this conduct occurred two or three times. On another occasion the appellant had followed her into a bedroom, touched her breasts and forced her hand onto his penis. He then ejacul*ted over her breasts.
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On a third occasion the appellant, according to the girl, pestered her when she was about to go to bed. He carried her to the settee and pulled down her underclothes. She said she was "turned around facing the television" and the appellant then put his penis inside her. Later she stated that on that occasion he had not entered her from behind, but while she was on his lap.
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The appellant left the house on 7 January 1991, after a row with the complainant's mother. Two days later she asked the complainant whether the appellant had ever hit or touched her, and after some hesitation the complainant said that he had. Next day, in the presence of another friend of the family who also lived in the house, the complainant said in answer to questions by her mother, that the appellant had touched her breasts and her vagin*, had made her masturbat* him and had had intercourse with her.
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On 28 January 1992 a statement was taken from the complainant by WPC Brown. The statement was interrupted when the WPC believed the complainant was becoming confused. She told the officer that intercourse had taken place face to face with her underneath the appellant.
9
On 29 January 1991 the appellant, who had no knowledge of the complaint, returned to the house to collect his belongings. He is alleged to have said to the complainant: "I never touched you, did I", shouting and terrifying her. The complainant was examined by a doctor that day. She complained to the doctor that intercourse had occurred not face to face, but from behind as she sat on the appellant's lap. The doctor's opinion was that in view of a disability in the girl's left hip she would have been unable to abduct her hip sufficiently for intercourse to have occurred in a supine position. The doctor found that the girl's hymen had been torn in two places. Subsequently, there was a lengthy video recording of an interview with the complainant.
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The appellant was arrested on 18 February 1992. When interviewed, he strongly denied committing the offences. He did not give evidence at his trial. However, a doctor was called on his behalf to suggest that the damage to the girl's private parts could have been caused by pushing tissue into the vagin* instead of using a tampon and to say that the tears in the hymen were not in the position one would expect as a result of penetration by a penis.
11
At the start of the trial there was a voir dire to determine whether the complainant was a competent witness in view of her mental retardation. On this issue the Crown called Mrs Ursula Cornish, an educational psychologist. She said the complainant was illiterate, mentally defective and had the mental capacity of a seven or eight-year-old. She was mentally within the bottom 1% of 15-year-olds. The learned judge decided that the complainant was competent to give evidence and she did so. In the course of cross-examining her, we are told that counsel for the appellant asked: "Did your mother tell you" in regard to certain of her allegations. Likewise, the WPC was asked whether she was conscious when taking a statement from the complainant of the risks of putting words into her mouth, and the mother was asked whether she had put ideas into the complainant's head.
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At the end of the prosecution evidence as originally served, an application was made by counsel for the Crown to call Mrs Cornish to give evidence before the jury as to whether or not the complainant was suggestible, would be likely to pick up suggestions made to her and repeat them, and whether she was likely to fantasize. Objection was taken on behalf of the defence, but the learned judge allowed Mrs Cornish to be called.
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In giving his ruling the learned judge referred to the inconsistencies in the complainant's evidence and went on as follows:
"The defence understandably took full advantage of those inconsistencies and the history of the matter. They put it to the girl's mother that, in questioning her about the matter as she did, she elicited the complaint and that she may well have put the idea into her daughter's head which was responsible for the complaint being made.
The Crown now seek to call the educational psychologist, Mrs Cornish, who has given a statement about the condition of the complainant. …. The defence say the evidence of Mrs Cornish is inadmissible and it amounts to an attempt by the Crown to improve the reliability, if not the veracity, of their own witness. …. The Crown …. say that not only is the evidence admissible as being relevant in its own right, but that the conduct of the cross-examination of the witness by the defence has brought such evidence into the area of relevance because it has been made quite clear that they propose to rely upon the suggestions that the witness has been induced to make a complaint which she has by ideas put into her head by her mother or by others.
The prosecution seek to rely on the evidence of Mrs Cornish that the girl's mental condition is such that that is unlikely to be the case. What I am about to say, of course, I say with some...
