Campbell, R (On the Application Of) v Peterborough Magistrates Court

J U D G M E N T

1. MR JUSTICE MAURICE KAY: This is an appeal by way of case stated in relation to the adjudication of the Youth Court sitting at Peterborough on 11th March 2003. The appellant was there convicted of an offence of indecent assault on a 16-year-old girl, contrary to section 14(1) of the Sexual Offences Act 1956. The case stated recites the following facts as having been found by the Magistrates:

"(a) On 9th November 2002 at approximately 7pm, the victim was in the Tyesdale Centre in Bretton, Peterborough. Her intention was to use a public telephone box located at the Tyesdale Centre in order to speak to her boyfriend.

"(b) The telephone box in question had three solid sides and an open back to gain entry to use the telephone. The solid sides were made of clear glass or perspex.

"(c) As the victim was walking towards the telephone box the appellant approached her. The appellant was in the company of a black youth.

"(d) The appellant asked the victim if she had a boyfriend and she said yes. The appellant followed the victim into the telephone box and stood next to her while she was telephoning her boyfriend. S stood outside the telephone box.

"(e) The victim had to make three attempts to get through to her boyfriend as the appellant put the receiver down twice and took her money once. The appellant only returned the victim's money which was in his pocket after being told to do so by S. On the third attempt the victim was able to speak to her boyfriend.

"(f) At that moment two girls came out of a shop in the Tyesdale Centre and the appellant left the telephone box and followed them. The appellant returned to the telephone box about five minutes later while the victim was still talking to her boyfriend on the telephone.

"(g) On returning to the telephone box the appellant indecently assaulted the victim. The appellant touched her between her legs on top of her clothing and said 'Where is my sex? I want my sex.'

"(h) The victim, who was still talking to her boyfriend at that time, told the boyfriend that the appellant had indecently assaulted her. As a result of the victim complaining to her boyfriend about being indecently assaulted, her stepfather arrived at the telephone box within three or four minutes [of that communication] accompanied by a friend, a man called Gary Norton.

"(i) The victim did not know the appellant by name but had seen him before in the Bretton area of Peterborough and knew that he went to school with her cousin. The victim knew S as they both went to the same school.

"(j) Identification was not an issue ...

"(k) The appellant left the scene as soon as the victim's stepfather and friend arrived.

"(l) The appellant admitted lying to the police in interview by denying that he knew the two girls who came out of the shop in the Tyesdale Centre and could not remember if he had spoken to them."

2. The advocate representing the appellant before the Magistrates made a submission of no case to answer at the end of the prosecution case. He based that submission on the fact that the victim, while giving her evidence, had given different versions of the events leading up to and including the indecent assault. The Magistrates rejected that submission of no case. It is apparent that the appellant then gave evidence.

3. At the conclusion of all of the evidence, it seems that the defence advocate addressed the Magistrates in similar terms to those he had used in making his submission of no case to answer, and no doubt adding submissions inviting the Magistrates to accept the evidence of his client. However, the Magistrates found the case proved.

4. It is now necessary for me to say a little more of the inconsistencies which came into the victim's evidence. In summarising the submissions made on behalf of the appellant, the case stated is in these terms:

"The victim, while giving evidence, had given three different versions of the events leading up to and including the assault and in particular:

"(i) While giving her evidence in chief the victim stated that the indecent assault took place in the telephone box after the appellant had returned from following the two girls.

"(ii) During cross-examination, after being referred to a statement made to the police on 24th November 2002, the victim stated that the indecent assault took place before the appellant left the telephone box to follow the two girls.

"(iii) When cross-examined further, the victim stated that she had been indecently assaulted twice, one before the appellant walked off after the two girls and once after he had returned to the telephone box.

"(iv) She also claimed that Gary Norton had witnessed the second indecent assault at the time when he arrived at the telephone box. The victim further stated that she had recounted this fact to the police during interview."

5. Thus, the case for the appellant was that the evidence of the girl was inconsistent and discredited and that the Magistrates could not properly convict upon it.

6. The Magistrates, when they announced their decision, gave reasons for finding the case proven. What they said at that stage is not rehearsed in the case stated but there is before me a document adduced by the appellant's solicitor which, whilst not verbatim or complete, is accepted by both parties as being a reasonable account of what was said at that stage.

7. It is, to a substantial extent, repeated in what the Magistrates have now committed by way of reasons in the body of the case stated. In paragraph 6 of the case stated they say:

"We were of the opinion that:

"(a) The victim was a nervous and vulnerable witness aged 17 years of age, who was just 16 years old at the time of the alleged offence.

"(b) While the victim's evidence might have appeared inconsistent in some respects, we found that she was a truthful witness doing her best to recount an upsetting allegation, which had occurred four months previously. In assessing the credibility of the victim we took into account the fact that she had immediately complained to her boyfriend that the appellant had indecently assaulted her. Whilst her boyfriend was not called to give evidence, the fact she complained to him was not challenged by the appellant.

"(c) Whilst the victim gave three different versions of the events, this did not discredit her evidence.

"(d) We did not find the appellant to be a truthful witness. He did not dispute being present at the scene. In assessing his credibility we took into account the fact that he had lied in interview to the police (as he admitted) when he denied knowing the two girls who came out of the shop in the Tyesdale Centre and could not remember if he had spoken to them. We rejected the reason he gave in evidence for lying to the police which he stated was to protect the identity of the two girls. For those reasons we rejected the appellant's account.

"We reminded ourselves of the burden and standard of proof and found that the respondent had proved all the essential element of the alleged offence, namely that the appellant had indecently assaulted the victim and that the victim had not consented to the assault. Accordingly we found the appellant guilty of the charge of indecent assault."

8. The case stated then poses the following question:

"Notwithstanding the inconsistency in the victim's evidence, were we entitled to find her to be a credible witness and to convict the respondent on her testimony?"

9. On behalf of the appellant Mr Myatt, who did not appear in the court before, makes a number of submissions about that decision. The submissions are to the effect: (1) that having regard to the inconsistencies, it was not open to the Magistrates to convict the appellant; and (2) that the reasons given by the Magistrates are deficient and/or insufficient.

10. So far as the criticism of the evidential basis of the conviction is concerned, it is clear that the Magistrates, in their findings of fact, found one act of indecent assault, that referred to in paragraph 2(g) of the case stated, and that it had occurred after the appellant had returned to the telephone box following the transaction, if such it can be called, with the two girls. In other words, the findings of fact are broadly to the effect that the evidence in chief of the girl was truthful and accurate.

11. The Magistrates clearly accepted that in the course of the cross-examination the girl had given inconsistent accounts as to the sequence of events and, indeed, whether she was indecently assaulted once or twice. The giving of an inconsistent account by a female who alleges a sexual offence is not unusual. Sometimes the inconsistencies are the result of the falsity of the allegation, sometimes they are the result of conscious or subconscious reactions to aspects of the circumstances in which she found herself and she gives different accounts, perhaps unwisely, but nevertheless without a detraction from the essential honesty of the central complaint. It is always difficult for Magistrates and Justices when they have to consider into which category a particular case falls.

12. It is clear that in the present case, the Magistrates, whose first task was to assess the demeanour and credibility of the witnesses, were impressed by the girl's evidence in chief. To the extent that she said things inconsistent with that evidence in cross-examination, the Magistrates put that down to her nervousness and her vulnerability, in both cases derived from her age. They considered that she had been truthful in doing her best to recount an upsetting allegation rather than advancing a deliberate falsehood. They took into account the passage of time and they took into account the fact that she did tell her boyfriend there and then that the appellant had indecently assaulted her. That was not challenged. Indeed, the Magistrates made it a permissible finding of fact that the arrival of the stepfather and his friend at the scene had resulted from that communication to the boyfriend on the telephone.

13. All that went to the conclusion that she had been essentially truthful. That was not a decision which was reached lightly. The Magistrates state -- and there is no reason to suppose that they do so inaccurately -- that they reminded themselves of the burden and standard of proof before convicting the appellant.

14. In all those circumstances it seems to me that this is a case in which the fact finders who had to assess the evidence of the witnesses came to a permissible conclusion that, notwithstanding the inconsistencies which arose in cross-examination, this young, nervous, vulnerable and upset girl had given essentially accurate evidence about the assault as it was found to have taken place.

15. I next turn to the attack on the Magistrates' reasons. Essentially, Mr Myatt's complaint is that inconsistent versions having been given, the reasoning does not properly identify how and why the Magistrates came to be satisfied so that they were sure that the evidence in chief was a truthful account. In particular, he complains that as a result of the decision there was residual uncertainty as to whether the girl was assaulted once or twice, and whether before or after the appellant went to talk to the two girls.

16. In my judgment there is nothing in this reasons challenge at all. The facts found in the case stated make it perfectly clear that the Magistrates concluded that the girl had been assaulted once, and once only, in a manner the description of which was truthful and that that had occurred after the appellant had returned from the transaction with the two girls.

17. The reasons apparently given on the day, and formalised in the case stated, provided the appellant with all that he needed to know as to why he had been convicted, as to why the inconsistencies in the girl's evidence were not found to undermine its essential truthfulness, and as to why his own version of events had been disbelieved.

18. I have no doubt that those reasons were sufficient. It follows from what I have said that I do not find the submissions made on behalf of the appellant to be correct. I am satisfied as to the assessment of the evidence by the Magistrates and as to the reasons given by them in their decision. It also follows that in those circumstances, the answer to the question posed for the court must be in the affirmative and the appeal is dismissed. Thank you both very much.