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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	REGINA		
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	D G		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
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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.