Pengelly, R. v

LORD JUSTICE STANLEY BURNTON: On 28th September 2011, at Cardiff Crown Court before His Honour Judge David Wynn Morgan, the appellant was convicted by a majority of sexual assault. He was subsequently sentenced to a community order with requirements. He was also required to comply with Part 2 of the Sexual Offences Act 2003 (Notification to the police) for a period of five years. As a result of his conviction his name has been included in the relevant list by the Independent Safeguarding Authority. A restraining order was also imposed.

He appeals against his conviction on one ground only by leave of the full court. That ground relates to the treatment in the summing-up of his alibi evidence.

The facts, in summary, were that on 30th September 2010, at about 9.20 am, the complainant was standing outside the Gilfach Goch Community Centre, having dropped her daughter off at a play group. A man approached her, introduced himself as "Mike" and shook her hand. He told her that she was beautiful, touched the side of her face and ran his hand up her inside thigh over her clothing. He then tried to persuade her to go to his home which was nearby. She refused and went into the community centre to complain. She telephoned the police at 9.43 am. She described the suspect as "giving the name of Mike, 39 years old, grey hair and chubby". She said she was unable to give a description of his clothing.

On 2nd November 2010 she picked out the appellant at a formal identification procedure. In a statement she described him as:

She told the centre manager that he had been a fat man with a moustache, about 40 years old.

PC Johnson and the manager of the centre viewed CCTV footage, which was unavailable by the time of the trial. The same morning PC Johnson instructed another officer to arrest a man also by the name of Mike, Mike Till, who had been warned about his behaviour towards women in the area and had been banned from the community centre. He was also subject to a video identification procedure but was not picked out by the complainant.

After the positive identification the complainant mistakenly reported seeing the appellant on four occasions in November, March and May 2011. On the final occasion she took a photograph, which was not of the appellant but of a man with bald hair. Mike Till had bald hair.

The prosecution case was that her identification of the appellant was reliable and in due course the judge rejected a submission of no case to answer.

The defence case was one of mistaken identity and alibi. The appellant gave detailed evidence of his movements in the morning in question, supported by receipts from local shops and a CCTV footage. That did not, however, render it impossible that he was the man who had assailed the complainant.

There was also evidence from a Luke Davies, who had entered the community centre shortly after the incident and had seen a man with the complainant. Davies went with the centre manager to Till's work place and identified him as the man with the complainant. There was also confirmation from PC Johnson that Till had been in the vicinity of the centre at the relevant date.

The appeal arises because in the course of his summing-up the judge referred to the alibi put forward by the appellant but did not give, as is conceded by Mr Kelly on behalf of the prosecution, the normal and required alibi direction to the effect that if the jury rejects the alibi it does not follow that the appellant was guilty of the offence charged; the question of alibi and proof of his being the person who had assaulted the complainant were separate questions, although one could bear upon the other.

There may be cases where the court could overlook the absence of a clear alibi direction. However, in our judgment, the identification evidence in this case was remarkably weak, in particular by reason of the mistaken identifications made by the complainant after the incident in question. Without those identifications the position might have been different. With them, in our judgment this was an extremely weak identification case indeed. The view of each member of this court is that having regard to those mistaken identifications this is a case which should not have gone beyond half-time. Be that as it may, the weakness of that evidence made it all the more important that a clear alibi direction was given. It was not. In those circumstances we have come to the conclusion clear that this conviction is unsafe and should be quashed. The appeal is therefore allowed.

MR KELLY: My Lords, I do not seek a re-trial.

LORD JUSTICE STANLEY BURNTON: I have not discussed it with my colleagues, but I had formed a view as to what would happen if you sought a re-trial. That is being very realistic. Thank you.