No: 9806131/W3

IN THE COURT OF APPEAL
CRIMINAL DIVISION
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Friday 11th June 1999
 
                    B E F O R E :

                 LORD JUSTICE TUCKEY

                   MR JUSTICE GAGE
 
                         and
 
             HIS HONOUR JUDGE RIVLIN QC
      Sitting as a Judge in the Court of Appeal                   Criminal Division
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                    R E G I N A

                       ‑ v ‑

                John Nwangkugi UGORJI
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HG
    Tel No: 0171 421 4040   Fax No: 0171 831 8838
         (Official Shorthand Writers to the Court)
              ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
 
MR M LATIF appeared on behalf of the Appellant
MR P A SPENCER appeared on behalf of the Crown
 
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                      JUDGMENT
             (As approved by the Court)
                   CROWN COPYRIGHT
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11th June 1999
 
LORD JUSTICE TUCKEY: On 11th September 1998 in the Crown Court at Derby before His Honour Judge Stretton the appellant, John Ugorji, was convicted of indecent assault.  He appeals against conviction by leave of the single judge.
      The complainant in the case was a girl, T, aged 14.  On the afternoon of 4th August 1997 she and a friend went to a newsagents shop in Moore Street Derby. The appellant was at the shop as well.  The girl's evidence was that after her friend had left the appellant took her into a room at the back of the shop. He put his hands down her trousers and fingered her.  He then took hold of her hand and put it on his penis and moved it up and down until he ejaculated on the floor. She kept saying that she had to go.  The man wiped the floor with a sponge and then wiped his hands on some cotton wool balls which he put in a piece of newspaper and then into a box.  He asked if she could come back and see him tomorrow.  She asked where he lived.  He gave her his address.
      The girl complained immediately after she left the shop to her sister and then to a friend.  At about the same time, she also complained to a man called Timothy  W.  All these complaints were recent complaints.
      The police were called that evening and the appellant was arrested.  They went to the back room of the shop where they found some cotton wool balls in a crisp box.  Those were sent for forensic testing and found to contain semen but insufficient DNA for it to be identified.
      The appellant's case was that he had spoken to the girl when she and her friend came to the shop, but he had not gone into the back room with her.  He had not touched her and she left the shop before he did.
      The appeal centres round events at the shop after the girl had left.  FR, the son of the owner of the shop, was at the shop that afternoon.  He was a witness for the prosecution and was called after the complainant towards the end of the first day of the trial.  It is clear from the transcript of his evidence that he was not a very forthcoming witness.
      After patient questioning by Mr Spencer, counsel for the Crown, he said that the appellant had gone with the girl into the kitchen at the back of the shop and closed the door, or more accurately he had propped up a door which was off its hinges into the door space.  He thought that the two were just talking to one another. Some time later the girl left and the appellant stayed  at the shop.  After some time TW came to the shop and said that the girl had complained that the appellant had done something to her in the back room. The appellant denied this.  After some time the appellant helped Mr R clean the kitchen floor.
      In his statement to the police Mr R had said that after Mr W had come to the shop the appellant had said, "If the police come just tell them that she came and was talking to you in the kitchen and then I came and talked to her but didn't go in the kitchen. I just left after talking to her".  Try as he did, Mr Spencer could not get Mr R to say this by the time the court adjourned at the end of that first day.
      Mr R did not turn up the following morning and so he was arrested.  He returned to court on the morning of the third day of the trial.  Before Mr R resumed his evidence, in the absence of the jury, Mr Spencer applied to treat Mr R as a hostile witness; no doubt on the basis of his reluctance to answer any questions and more specifically his failure to give the evidence which was contained in his statement to which we have referred.  The judge allowed Mr Spencer to treat the witness as hostile.  Mr R then resumed his evidence before the jury and was cross examined by Mr Spencer upon what he had said in his statement.  He  admitted that the statement was true, saying that he had forgotten what the appellant had said because it was all some time ago.
      When the judge came to deal with this part of the case he said:
 
"... I ought to remind you of [something] relating to the evidence of FR.  You will recall, of course, that he did not return when he was supposed to come, and you have been told that you should not hold that against the defendant and that is of course quite right ...
 
But having been brought back what I did allow to happen was for him to be questioned in a particular way by the prosecution, and that involved asking him about what he had told the police ..." 
 
Then the judge referred to passages in his statement to which we have already referred and said:
 
"Well, FR says now that that was what the defendant said to him."
  
The first ground of appeal is that this was not an adequate direction, having regard to the fact that the judge had allowed the prosecution to elicit this evidence on the basis that Mr R was a hostile witness.
      The second ground relates to the evidence of Mr W whom the Crown did not call but who attended  court on the morning of the third day when Mr R gave his evidence.  When he attended court he told the police officer who interviewed that Mr R had told him that the case was all a set up.  The officer then took a more detailed statement from him which included the following passage:
 
"Feeda [Mr R] has also told me that it was all false and that nothing happened in the shop and it is a scam for me to go back out with T."
  
Later in the statement he says that T had said to him:
 
"Why haven't you been in touch with me because I did it all for you."
  
Having seen that statement, counsel for the Crown decided not to call Mr W.  The statement was given to the defence who then, understandably, wanted to call him as a witness.  However the judge, after being told of what Mr W had said in the passages to which we have referred, refused to allow counsel to ask any question of Mr W about what Mr R had told him on the basis that it was hearsay.
      It is clear that this situation developed in the course of the third morning of the trial and no one had given any detailed thought to what the implications of  this statement were, or how this evidence could be put before the jury.  The judge, as we have said, simply "rode off" counsel for the appellant's attempts to put this evidence in although he did allow him to ask the witness about what the complainant herself had told him. The second ground of appeal is that the judge should have allowed the whole of this evidence to go before the jury.
      There are other grounds of appeal relating to the summing up and the conduct of counsel for the defence which appear in the perfected grounds settled by the appellant's new counsel, Mr Latif.  The appellant himself has submitted further grounds of his own making.  So far as those grounds relate to the conduct of the solicitors and counsel previously acting, the allegations are made far too late to be raised now. There are standard procedures to be followed when such allegations are made and they have not been.  The other points raised by the appellant himself are, in our judgment, unarguable.  Mr Latif did take a point about the judge's failure to tell the jury that they had to be sure that one or other of the acts said to constitute the indecent assault had taken place but on reflection, correctly in our view, he did not pursue this point before us. 
      Finally, we raised a point as to whether the judge had given an adequate direction about the recent complaint evidence.  After further thought we think that his direction (to adopt the words of the single judge) "just about passes muster" and so we say no more about this point.
      Returning then to the first two grounds although Mr R was treated as a hostile witness he did not in the event give evidence which was inconsistent with his earlier statement to the police. So he was not in fact a hostile witness and the conventional hostile witness direction would not have been appropriate in this case. However some warning about Mr R's evidence needed to be given in view of the fact that he only agreed that what he had said in his witness statement was true under cross examination by the Crown which they were only allowed to embark upon as a result of having successfully applied to treat him as hostile.  If, of course, he had not been treated as hostile, it is clear that the damming evidence about what the appellant had told him to say to the police would not have been given at all.
      This situation is not, as far as we can see, covered by authority.  We are not at all sure whether it was right to treat the witness as hostile in these  circumstances.  We think that the objective which the Crown sought to achieve might have been achieved by following guidance given by this court in the case of Maw ^ [1994] Crim LR 841 but that did not happen.  In our view common sense suggests that where evidence has only been given as a result of the witness being treated as hostile the jury should be reminded of this in clear terms and told to bear it in mind when considering what weight to attach to the evidence.
      Although the judge alluded in the passage to which we have referred to what happened by saying:
 
"... I did allow him [the witness] ... to be questioned in a particular way ..."
  
We do not think he went far enough.  He should have explained that he had allowed the Crown to treat Mr R as a hostile witness and so cross examine him about his previous statement to the police and the jury should, therefore, bear this in mind when considering what weight to give to his evidence.  He might have said, although no magic formula need be followed, that such circumstances meant that there was a special need for caution when considering evidence which had been elicited in that way.  We therefore think that this ground of appeal is well founded. 
      On the second ground it is conceded by the Crown that what Mr R is alleged to have told Mr W might have been admissible under the provisions of section 4 of the Criminal Procedure Act 1865, but it was a pre‑condition of the evidence being admissible in this way that Mr R should have been asked whether he had made such a statement and he was not.  He was available at court that morning and Mr Spencer submits that if counsel chose not to put the question to him that was his decision and not something which should concern this court.
      It is clear from the transcript that at the time no one thought of section 4 of the 1865 Act as a means by which this evidence could be put before the jury. Had they done so it seems to us that Mr R could have been recalled and the question could have been put to him.  If he denied making the statement Mr W could have been asked about it and so the jury would have had this evidence before them to consider; evidence which we think was relevant in the context of a case where the appellant was saying that the case against him was completely fabricated.
      None of this happened.  It is not a situation where we think it is possible to apportion blame.  The judge might have made the suggestion if the point had  occurred to him that Mr R could be called and that would have enabled the evidence to be given.  Counsel might have thought of it.  But the truth is as we have already said that this situation arose unexpectedly and no one had the opportunity to think through how best to deal with the point.  Nevertheless, the upshot of it all was that this evidence was not before the jury when we think it should have been.
      That leaves then the final question which is this: does the lack of an adequate direction about Mr R's evidence and what he is alleged to have said to Mr W make this conviction unsafe?  Mr Spencer submits that it does not.  He points to the fact that the cotton wool had been found in the box in the back room of the shop which is where the complainant said the appellant had put it after the indecent assault.  The appellant's case was that he and the complainant had not previously met and had not been together in that room.  His explanation did not account for the complainant being able to know that the ball of cotton wool was there.  He also points to the evidence that the appellant himself washed the floor in the room at or about the point where the complainant says he ejaculated.
      We have obviously considered these points anxiously, but we are unable to say that the appellant's  conviction was inevitable even if the judge had given an adequate warning and the evidence of Mr W had been before the jury.  For those reasons we think that this appeal against conviction must be allowed.
      We want, however, to hear argument as to whether there should be a retrial.

 
MR SPENCER: My Lord, in a way, so far as the position of R is concerned, it is a new element to some extent and it is almost a situation where the appellant is asking the court to consider the matter on the basis of new evidence because ‑‑

LORD JUSTICE TUCKEY: We have not been told what the sentence in this case is.

MR SPENCER: 15 months.

LORD JUSTICE TUCKEY: That has been served?

MR SPENCER: No, this court granted the appellant bail. I think he applied himself and was granted bail.

LORD JUSTICE TUCKEY: Right.

MR SPENCER: May I add to what I was saying, my Lord? The position is that the jury did not consider this point and it would be right, in all of the circumstances ‑‑

LORD JUSTICE TUCKEY: I think we follow what you say about that.  What do you say about this, Mr Latif?

MR LATIF: My Lord, there are really two points to be made.  We submit that there should not be a retrial for these reasons.  The first is the passage of time, this offence is now almost two years old.  There are young witnesses who will have to relive the ‑‑

LORD JUSTICE TUCKEY: That is very altruistic of you.  It is, no doubt ‑‑ simply because this court orders a retrial does not mean to say that the Crown are bound to proceed with the retrial.  No doubt one of the things they will take into account is that very point.

MR LATIF: My Lord, the second point is that in the case of young witnesses this is really a case of recollection, particularly now as far as R and W are concerned.  We submit that where the passage of time is some two years almost, in the circumstances, perhaps, it would not be appropriate to order a retrial.  Those are the two grounds on which we submit that the court may think it not appropriate.

LORD JUSTICE TUCKEY: We think there should be a retrial in this case subject to what we have said of course about the prosecution considering whether the complainant wants to go on.

MR SPENCER: Thank you, my Lord.

LORD JUSTICE TUCKEY: There are directions which I have to give about that.

MR SPENCER: Probably about his attendance on the occasion of the retrial, my Lord.

LORD JUSTICE TUCKEY: No, well, before we get to that stage, we allow the appeal, we quash the conviction, we direct that a fresh indictment be preferred and we direct that the appellant be rearraigned on that fresh indictment within two months.  Now what should happen to him?  He has been on bail.  Do you ‑‑
 
MR SPENCER: ‑‑ pending the outcome of this appeal.  So  I would invite your Lordship to continue his bail with an obligation to attend at the crown court if the court wishes to do so.

LORD JUSTICE TUCKEY: You presumably do not object to that.  What are the conditions of the bail?

MR SPENCER: I have not been told, my Lord.

MR LATIF: My Lord, he was on conditional bail during the period of the trial and up to the trial.  Subsequent to that he was allowed bail on the basis that he surrender his passport.  I would ask that he be given bail unconditionally.

LORD JUSTICE TUCKEY: Yes.  The terms granted by this court are that he shall reside and sleep each night at 3 The Shrubbery, Blaydon Close, Ladywood, Birmingham. There shall be a curfew between 12 midnight and 6.00 a.m. ‑‑ I am reading from the single judge's granting of bail.  (2) his long term girlfriend should be a surety in the sum of £500.  Such surety to be taken at the central police station in Birmingham; (3) In case a retrial is ordered the appellant shall not enter the county of Derbyshire nor communicate directly or indirectly with any prosecution witness; (4) the appellant shall surrender his passport and all foreign travel documents to the police and undertake not to apply for any such documents.  We will grant bail on those terms, so those terms will continue.  We expect, of course, that the retrial will take place as soon as may be.
      Is your client on legal aid?

MR LATIF: My Lord, my understanding is, yes.

LORD JUSTICE TUCKEY: Can we have more than just an understanding?  This court has power to grant legal aid for the retrial.

MR LATIF: I certainly ask for legal aid for the retrial.  So far as these proceedings were concerned he was legally aided. 

LORD JUSTICE TUCKEY: Legal aid for the retrial.  Which Crown Court, Derby?  Different judge.

MR SPENCER: Perhaps it could be different prosecuting counsel?

LORD JUSTICE TUCKEY: No, Mr Spencer.