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IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT LIVERPOOL (HHJ WOODHALL) [07NZ0031924] CASE NO 202502944/B5 NEUTRAL CITATION NUMBER: [2026] EWCA Crim 883 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE MALES
MS JUSTICE NORTON
MR JUSTICE KIMBLIN
REX
V
EMMANUEL ONWUBIKO
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NON-COUNSEL APPLICATION
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APPROVED JUDGMENT
MS JUSTICE NORTON:
On 12 May 2025 in the Crown Court at Liverpool the applicant was convicted of five counts of sexual assault, contrary to section 3 of the Sexual Offences Act 2003. On 13 May 2025, before the same court, he was sentenced to 2 years' imprisonment on each count, those sentences to run concurrently. He now seeks to renew his application for leave to appeal against conviction following refusal by the Single Judge.
The Facts
The facts can be stated shortly. The applicant and the complainant (whom we shall refer to as "C") both worked at a residential care home. The applicant was an agency worker and the complainant had not met him before 3 January 2024, on which date the complainant alleged that the applicant sexually assaulted her on multiple occasions as follows:
On count 1 - The complainant went to the kitchen to make a cup of tea. The applicant followed her in, came up behind her and grabbed her breast. He pulled her towards him from behind and pressed himself against her. He told her, “You’re so beautiful and I want you all to myself”. She was shaken and moved away.
On counts 2, 3 and 4 - The complainant sat the residents down for breakfast. Each time she went to or from the kitchen the applicant grabbed her bottom. On a number of other occasions he rubbed her inner thigh or touched her vagina.
On count 5 - The applicant asked her to help him change the bedding in one of the rooms. When helping the applicant, he grabbed the complainant from behind and touched her vagina whilst his body was touching hers. She felt trapped in the room and scared.
The complainant sent a number of messages to a colleague and told him what had happened. He encouraged her to tell management but she was scared to do so and carried on working because she did not want to lose her job. She felt she could not leave the residents.
When C did leave work she went to her grandmother's home and told her that an agency staff worker had been touching her inappropriately. C's grandmother then went to the care home and told the complainant's manager what C had told her, and the manager then spoke to C herself. C was crying, and told her manager what had happened. The manager thereafter returned to the care home, confronted the applicant and told him to leave the care home, which he did. Meanwhile C had told her father what happened. He took C with him on a drive around to locate the applicant. She identified the applicant to her father who then proceeded to assault the applicant. Police were called by members of the public and C's father was arrested and in due course charged with and pleaded guilty to an assault on the applicant.
The applicant was arrested. Having had his injuries checked, he was interviewed in the presence of a legal representative and answered all questions. He accepted that he had been working as an agency worker in the care home and that he had worked with C on the day in question. He agreed that in the course of their work they had been involved in changing bedding and had been in the kitchen together but denied that anything inappropriate had occurred. Any touching had been accidental.
At trial the prosecution relied upon the evidence of C, her grandmother and the manager of the care home. The exchange of text messages between C and her colleague was before the jury by agreement.
The defence case was fabrication. The complaints made against him were a series of lies made by the complainant whom he asserted was not a reliable witness and her account lacked credibility. The applicant gave evidence in which he agreed he was an agency worker and had arrived to work around 10 o' clock in the morning on the day in question. He saw another agency worker (like him, also a black male) sitting in the lounge with C to whom he introduced himself. There was never a time when he was alone with the complainant and there was always a member of staff working with them. He said there was never a time when they were in the kitchen together or in a bedroom alone. He denied ever touching her or accidentally bumping into her and denied all offences. The issue therefore for the jury was whether they were sure that the complainant's account was true.
Grounds of application
The applicant has submitted multiple grounds of appeal. His initial grounds are submitted on a form NG dated 4 August 2025. These were responded to on 9 October 2025 and considered and rejected by the single judge who found that all grounds lacked merit and were unarguable. The applicant then submitted further grounds asserting mistaken identity in very lengthy documents dated 20 and 24 October and 20 November 2025 respectively. These were responded to in an amended respondent's note dated 10 December 2025. Further submissions on the same theme were lodged dated 29 December and 29 January 2026. There was a large amount of duplication and overlapping in the various submissions, but we confirm that we have carefully read all the submissions made to us. Having done so, we are satisfied for the same reasons expounded by both the Single Judge and the respondent that there is no merit in any of them. Dealing with them briefly:
Ground 1 - Memory loss as a result of the assault upon him he says significantly affected his answers in interview. The applicant was medically examined before interview and was represented by a solicitor. No questions were raised about his ability to answer questions, which he did in full.
Ground 2. - It is alleged the complainant made a false statement to police in proceedings relating to the assault upon the applicant by the complainant's father. C's account in this regard was before the jury and she was cross-examined upon it.
Ground 3 - The applicant was excluded, he claimed, as a contributor to DNA found upon C's clothing and he asserted that the judge had wrongly given the jury a direction that forensic evidence could not be trusted. In fact, the forensic evidence was the subject of the agreed facts, and the judge correctly and accurately reminded the jury of the evidence and the limitations of it.
Ground 4 - The complainant sent a message to someone saying she did not want to be "a snitch"; this was an inconsistency about which the jury were unaware. In fact, the message was before the jury who were reminded of it in summing-up. The content and context of this and all other messages were matters for the jury.
Ground 5 - The manager's witness statement in evidence contradicted the complainant's allegations. The manager gave evidence and was cross-examined. It was for the jury to consider whether there were any factual differences or contradiction between her evidence and the evidence of the complainant.
Ground 6 - CCTV footage was not obtained. It was an Agreed Fact that there was no CCTV on the relevant ward.
Ground 7 - There were inconsistencies in the complainant's accounts. The complainant gave evidence and was cross-examined. It was for the jury to assess any inconsistencies and the significance, if any, of them. The judge gave a correct direction to the jury on inconsistencies.
Finally ground 8 - The pre-sentence report misrepresented the applicant's views. This was irrelevant to conviction.
Turning to later submissions asserting mistaken identity, we observe at the outset that all of the evidence referred to by the applicant in his submissions which he suggests would support a finding of mistaken identity were available at trial. It was therefore open to the applicant to advance mistaken identity as a defence at trial and, if that was his case, to cross-examine the relevant witnesses to this effect in front of the jury. This was not done.
The applicant appears now to assert that if the complainant was sexually assaulted then the true assailant was or may have been "BO" (another care worker at the home). It is entirely unclear how the applicant has reached the conclusion that that person may have been the assailant, other than that he was another worker at the home and was (like him) a black male. In fact the complainant throughout referred to working with a "single male" and there is no evidence to support a contention that that single male was BO. Conversely there is ample evidence, including evidence from the applicant's own accounts that the agency worker that the complainant referred to as "Emmanuel" was this applicant. For example, she described being sexually assaulted in the kitchen area. In interview the applicant admitted that he had possibly touched C albeit accidently in the kitchen.
In another example C described being in the bedroom alone with the offender whilst changing a bed when she was sexually assaulted. In his Defence Statement the applicant admits to asking C to fetch the laundry needed for the bedroom and in his police interview admitted being in the bedroom with her. Furthermore, there was direct evidence of identification by C. She stated that the person who assaulted her was called "Emmanuel" and that she had never met him before this day. The applicant appears to confirm this himself as in his evidence he stated that on arrival that day he introduced himself to C. C identified the person who had sexually assaulted her to her father who then assaulted him and there is no dispute that that person was the applicant. C confirmed in her police statement given on the same day that the person she saw detained by the police was Emmanuel and that he was the person who had sexually assaulted her.
The applicant refers to a number of what he asserts are inconsistencies that undermine her identification of him but these inconsistencies, such as the time he arrived on the shift and whether she knew he had worked at the care home previously or whether he had told her that he had had come to the UK to work or study are minor discrepancies, if indeed they are discrepancies at all, and neither individually nor collectively undermine identification.
Conclusion
In rejecting the application for leave to appeal the Single Judge observed that:
"An appeal against conviction does not lie to the Court of Appeal simply because a defendant does not agree with the verdicts of the jury… The verdicts of the jury are final and convictions which are the result of a fair trial will be final unless there has been an error of law during the course of the trial (that is for example a misdirection of law to the jury or an error of law in a ruling leading to the admission of inadmissible evidence) or some other material irregularity so affecting the fairness of the trial that the
conviction can be said to be arguably unsafe. Even if there has been such an error of law or material irregularity it must be significant; it must have been capable of affecting the verdicts reached by the jury and in the context of the evidence as a whole is sufficient that the conviction is arguably unsafe before
any conviction will be overturned by the Court of Appeal."
We agree with the Single Judge that none of the grounds of appeal raised in this case are arguable. There was no error of law, and the summing-up was fair and balanced. Ultimately the issue for the jury was whether they were sure that the complainant was being truthful when she alleged that the applicant had sexually assaulted her. On all of the evidence they were sure that she was. There is no basis for concluding that the convictions are unsafe, and this renewed application is accordingly refused.
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