R v Steven New

MR JUSTICE GOOSE:

This is an application for permission to extend time by 730 days and for leave to appeal conviction by the applicant, Steven New, who is now aged 40. Both applications have been referred to this court by the Registrar.

On the 12 October 2022 in the Crown Court at Gloucester, before Mr Recorder Tait, the applicant was convicted by a jury of the following offences: Counts 1 to 4, Indecent |Assault, contrary to section 14(1) of the Sexual Offences Act 1956; Counts 5 and 6, Indecent Assault, contrary to section 14(1) of the 1956 Act. Those counts concerned C1. Counts 7 and 8, Indecent Assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 and Counts 9 to 11, Indecency with a Child, contrary to section 1(1) of the Indecency with Children Act 1960. Those counts concerned C2. On the 1st February 2023, the applicant was sentenced to 40 months' imprisonment and Consequential Orders under Part 2 of the Sexual Offences Act 2003 were made together with an order that the applicant may be included in the relevant list by the Disclosure and Barring Service.

The applicant is represented by Mr Emanuel KC, who was not trial counsel but became instructed for the sentence hearing. An explanation has been provided for the substantial delay in bringing this application. We shall return to that application later in this judgment.

It is unnecessary for the purposes of this application to identify, directly or indirectly, the identities of the complainants. Indeed, they are protected from identification by the Orders we have made above. Accordingly, they will be referred to as C1 and C2. The offending was alleged to have occurred at a time when the applicant was aged between 14 and 16. C1 was, during that time, aged between nine and 11, whilst C2 was aged between five and nine. The sexual behaviour particularised in the indictment may be summarised as follows.

C1's evidence was that the applicant possessed a calendar showing topless women which he showed to C1 whilst rubbing himself against her. Her top was lifted so that the applicant could kiss her on the nipples and her genital area. She described the applicant asking to touch and kiss the applicant's penis although she could not remember doing it. This behaviour was repeated, said C1, from her ages nine to 11. Count 1 represented the first occasion when the applicant touched her breasts with his mouth whilst Count 2 represented multiple further occasions; Count 3 represented the first occasion when he touched her vagina with his mouth and Count 4 represented multiple occasions repeating that behaviour; Count 5 was in relation to the rubbing of his penis against her bottom on the first occasion and Count 6 was a multiple incident count of similar behaviour.

Counts 7 to 11 concerned the offences in relation to C2. Counts 7 and 8 were in relation to the first and multiple further occasions, respectively of the applicant putting his penis into C2's mouth, whilst Counts 9 and 10 reflect the first and multiple further occasions of the applicant masturbating himself in front of C2.

The prosecution's case at trial was that the jury could rely upon the complainants to prove all of the offences as they were charged. The defendant's case was one of denial, that none of the incidents had ever occurred, they had been fabricated.

The issue for the jury, therefore, was whether they were sure of whether the events complained of had happened. To prove the prosecution's case both complainants gave evidence. Their evidence-in-chief was recorded and played to the jury, in accordance with the Achieving Best Evidence procedure. Both were cross-examined on behalf of the applicant, in which it was contended that the offending had been made up and was untrue. The prosecution also called evidence from a complaint witness, who had been a school friend of C1 and had heard her explain that she had been sexually assaulted by the applicant. That complaint was made in 2004 when C1 was aged 14. That led to the police being informed, but no proceedings were brought at that time. The prosecution also relied on the evidence of the mother of C1 and C2. She described the first complaint made to her by C1, in which it was stated that the applicant had put his hands down her pants and had laid on top of her. No further detail was given at that time prior to the police being informed for the purposes of the current criminal proceedings. C1's mother was not able to remember a topless calendar being observed and had not witnessed or learned of any sexual behaviour earlier than the complaint being made in 2004.

The applicant gave evidence at trial denying that any offending took place. He denied that he had ever owned or possessed a topless calendar and said that he had only had his first girlfriend when he was aged 17. The applicant's father also gave evidence on behalf of the applicant and was unable to recall seeing any behaviour which might have given rise to any suspicion of the behaviour complained of.

Mr Emanuel argues that there were defects in the directions given by the judge as well as in his summary of the evidence and also seeks to criticise the representation received by the applicant during his trial. In addition, the applicant seeks to adduce fresh evidence, being the statements of two witnesses who were not called at trial, Christopher New and Paul New.

There are nine grounds of appeal. Grounds 1 to 4 and 6 concern argued failures by the judge, while grounds 5 and 7 to 9 are based on criticisms of the trial advocate. Individually the grounds of appeal are as follows:

Mr Fenny, who appeared for the prosecution at trial, has provided a detailed response to each of the grounds of appeal. He argues that the judge's directions and summary of the evidence after a relatively short trial were appropriate and correct. Whilst it is always possible to make observations as to additional matters that may or may not have been said, the judge's directions and summary of evidence did not lead to an unsafe conviction of the applicant. Further, it is submitted that the applicant's contention that his representation brought about an unsafe conviction is not made out. Accordingly, the respondent submits that the grounds of appeal are not arguable.

Given the criticisms of his representation during the trial, the trial advocate has been asked a number of questions about her conduct in representing the applicant. Rather than a short response by the advocate, there has been detailed questioning and replies. We have read the trial advocate's responses to the questions raised.

As we have observed, the grounds of appeal cover two aspects of the trial. The directions and summing-up of the judge and the trial advocate's representation of the applicant. We shall address these areas in turn whilst referring to the specific grounds of appeal.

It was not until 2004 that C1 spoke to her mother, having previously made vague complaints to a school friend. C1's mother gave evidence at trial of the occasion when C1 told her that she had been sexually abused by the applicant. C1's mother described in her evidence that C1 entered the room to speak and was crying and also, in a brief explanation of what she was saying, mentioned that the applicant had put his hand down her pants. In the judge's summary of the evidence, he reminded the jury of that part of the evidence. However, when directing the jury of how they might approach evidence of complaint, the judge did not provide any direction as to their approach of evidence of distress by the complainant. On behalf of the applicant, it is argued that this was a failure and that such direction should have been given.

In his written directions under the heading "Complaints to Others", the judge gave a conventional direction in relation to complaint evidence. He said that it might be relevant to consistency of complaint but, importantly, that it lacked independence. He said:-

The applicant criticises this passage as not including a clear direction on the distress described by C1's mother when the complaint was made to her in 2004, being several years after the offending was alleged to have taken place.

Whilst we agree that it would have been appropriate for the judge to have provided a direction relating to distress, of itself this does not amount to a misdirection in the circumstances of this case. It was a complaint made some years after the offences and 18 years before the trial. The distress shown appeared to have been modest rather than extreme. Whilst not without significance and meriting further direction to the jury, we are not persuaded that this omission affects the safety of the conviction.

It is argued by the applicant that when giving the conventional direction on delay in historical sexual offending trials, there was a need to repeat or include a clear further direction concerning the burden and standard of proof. Mr Emanuel argues that such a further reminder of this point in the directions would have assisted the jury in relating the prejudice to the defendant in facing criminal allegations many years after they are alleged to have occurred. Further, it is argued that specific examples of prejudice should have been referred to by the judge. In particular that it is no longer possible to carry out any examination of the place where it is said to have occurred or, indeed, to recover, if possible, the topless woman calendar which might have been available had the trial taken place closer to the time.

The direction given by the judge was conventional and appropriate. Whilst it might have been improved by the particular prejudice, which is now identified, that does not now mean that it was inadequate. The jury were plainly directed about the difficulties of conducting a criminal trial many years after the events on which they were based. Although a further direction in relation to the burden and standard of proof might have been provided, we do not think that it was critical to the safety of this direction. Indeed, the judge had appropriately reminded the jury, in written directions and during the evidence, of the importance of the burden and standard of proof.

It is argued that the applicant should have received a more enhanced direction on good character than he did. The judge gave both limbs of the good character direction relating to both credibility and to propensity. Indeed, the jury knew of the applicant's positive good character because the judge referred to it as such. We shall refer later to the criticism of the trial advocate in relation to character evidence. We are not persuaded however, that the direction which was given to the jury for a 36-year-old defendant of good character, was inadequate or created any unfairness in the trial.

It is argued on behalf of the applicant that the judge should have drawn greater attention to an inconsistency between C1's account in 2004, when she was aged 14, and her account in her ABE interview for the purposes of the trial. More specifically, C1 described the applicant putting his hand down her pants when she complained to her mother in 2004, but did not say the same later in her ABE interview. However, she did not say that it did not happen when she was asked about this during the trial, but said that she did not remember it.

In our judgment this inconsistency, if it was, was placed before the jury in what will have been an obvious point during the course of a relatively short trial. They were directed to consider carefully consistency of complaint and reminded carefully of what C1 had said in her evidence at trial and to her mother in 2004. The jury will have been sufficiently aware of this issue, such that we are not persuaded that the judge's directions were inadequate.

It is argued by the applicant that the jury should have been directed that the defendant was at a material disadvantage of not being able to question the complainants in a more forceful way, given that they required intermediary assistance because of their respective neuro-diverse challenges.

We find no merit in this ground at all. The judge explained clearly to the jury the process that had been undertaken when the complainants were cross-examined, with pre-prepared questions which were approved by the judge. This difference will have been apparent when the jury observed questioning of other witnesses, but was explained to them by the judge. Further, the cross-examination of both complainants was essentially to challenge and make clear to the jury that the applicant denied that any offending had happened. That issue was obvious. A further direction that the applicant was disadvantaged by the way the complainants gave evidence was not necessary.

In the account of C1 she told her mother in 2004, when she was aged 14, that the applicant had told her to say nothing to anyone else about what was happening, whilst in her ABE account for the purposes of trial, she did not remember that being said. Further, C2 had told his mother that what had happened to him was in a different room to the one he later described at trial. Mr Emanuel argues that these further inconsistencies should have been highlighted in cross-examination by the trial advocate but were not.

The trial advocate has explained that she did not explore the inconsistence relating to C1 because she was not saying to the jury that the applicant had told her to tell no one about the offending. To have raised this in cross-examination may have bolstered the point adversely to the applicant. It was a tactical decision, therefore, not to challenge C1 on this point.

The inconsistency in relation to C2 was between what he may have said to his mother about where the offences happened and what he was saying to the jury. Although this was different, in that it was in a different room in the property, it was not explored by the trial advocate.

We do not find that this ground raises any foundation for undermining the safety of the conviction. A trial advocate must take tactical decisions on which points to raise and which not. Only if they are flagrantly incompetent so as to affect the safety of the conviction will this court intervene. We do not conclude that this applies to this ground.

It is contended that the trial advocate failed to challenge C2's evidence in relation to Counts 9 to 11, being the applicant putting his penis in the mouth of C2. The trial advocate has responded to this complaint, recognising that she made a mistake in one question, when she referred to C2 putting his penis in the mouth of the applicant but that it was corrected immediately during cross-examination. That explanation has been checked with the transcriber and has not been confirmed. The real question is, therefore, whether it was made clear to the jury that C2's allegations in relation to Counts 9 to 11 were disputed and, on behalf of the applicant, untrue. Having considered the evidence that was produced at trial and the transcripts, we are satisfied that it was made sufficiently clear to the jury what the issues were. Even if the applicant had been permitted to cross-examine C2 more fully, it would have made little, or any difference, to the issues that the jury had to decide. It is clear to us that those issues were fully explored before the jury and that they were aware that the applicant denied any offending against C2.

This ground is supported by the application to adduce fresh evidence of the applicant's brothers, Christopher New and Paul New, in respect of whom applications have been made. We have read those statements. It is argued on behalf of the applicant that these witnesses were available, if asked to give evidence. The failure to obtain witness statements from them and to call them as witnesses was a material error.

It appears from the trial advocate's response however, that such evidence was discussed with the applicant, although there is a factual challenge as to whether that occurred. Leaving aside for the purposes of this application to rely on fresh evidence, the applicant argues that the reason such evidence was not explored in preparation for the trial or called at trial was to the inappropriate decision making of the trial advocate. It is accepted that the evidence was available for trial but was not introduced for that reason.

The test for the admissibility of this evidence is contained within section 23(2) of the Criminal Appeal Act 1968. Accepting, as we do, that the evidence is capable of belief and would have been admissible in the trial, we have to consider whether this evidence may afford a ground for allowing the appeal.

When questioned on behalf of the applicant, the trial advocate stated that there was a discussion with the applicant about calling evidence from his brothers, but the applicant was obviously reluctant to involve them in the trial. This is challenged by the applicant and Mr Emanuel argues that whatever enquiry was made it was insufficient.

It appears to this court that whether or not adequate enquiry was made of the applicant's brothers, there was some reluctance by the applicant to have them give evidence in his trial. The decision not to pursue any further enquiry with the brothers, or to call them at trial, appears to have been partly the applicant's reluctance and also a tactical decision by the trial advocate. We do not, in the circumstances, find the decision not to call this evidence as being flagrantly incompetent. Further, we do not conclude that the failure to call this evidence may afford a ground for allowing the appeal on the grounds of an unsafe conviction. The result of the evidence is that neither witness saw any evidence of offending. That was to a similar effect of the evidence of both C1's mother and the applicant's father which was evidence heard by the jury.

Accordingly, we are not persuaded that there is any merit in the criticism of trial counsel. More importantly, however, we do not conclude that the omission of this evidence, or its failure to rely upon it at trial, undermines the safety of the convictions.

This ground is based upon a failure to call character evidence witnesses as part of the defence case. We have considered all of the evidence that might have been available to the applicant. Although it would have been open to rely on additional witnesses to speak as to his character, that was not done. It is argued by the applicant that this failure affected the safety of his convictions.

The trial advocate has explained that the decision not to call character evidence was after discussing the possibility with the applicant during the trial. As with his reluctance to involve evidence from his brothers, the trial advocate says that he did not wish to call others to speak as to his character because he did not want others to know the charges he was facing. Whilst M Emanuel criticises this failure, we are satisfied that this was a decision made at trial and one that was not an unreasonable one to have made. The judge gave a positive good character direction to the jury, as we have already observed. We are not persuaded, therefore, that the failure to call further character witness evidence undermines the safety of the conviction.

Mr Emanuel further argued that these grounds of appeal, even if not sufficient individually to undermine the safety of these convictions, cumulatively achieve that end, adding one ground to the other, leaving these convictions unsafe. However, since we have concluded that each of the grounds lack merit, adding them together for their cumulative effect does not, in our judgment, raise an arguable basis that these convictions were unsafe.

Therefore, we do not find that the grounds of appeal, individually, or cumulatively, create an arguable basis to undermine the safety of the appellant's convictions. In reaching this conclusion we have not viewed each ground only in isolation but have stepped back to consider the totality of complaints. This was a relatively short trial during which the issues were clear to the jury, and upon which they were sufficiently directed by the trial judge, leading safely to the convictions which were returned by the jury. Whilst it is possible to identify decisions made in the course of a criminal trial, in which other advocates might not have taken the same course, that does not lead to a finding of incompetence; still less that it may have caused the convictions to be unsafe. We are not persuaded that it is arguable that these convictions were so affected.

In conclusion, we must refuse this application for permission to appeal these convictions. Had there been merit in these grounds we would have then considered the explanation for the substantial delay in bringing this application out of time. In the circumstances we refuse that application also.