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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Wills v R [2011] EWCA Crim 1938 (02 August 2011) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2011/1938.html Cite as: [2012] 1 Cr App R 2, [2011] EWCA Crim 1938, [2012] Crim LR 565 |
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ON APPEAL FROM TRURO CROWN COURT
HIS HONOUR JUDGE ELWEN
T200970/T20090176
Strand, London, WC2A 2LL |
||
B e f o r
e :
MR JUSTICE RAMSEY
and
HIS HONOUR JUDGE THORNTON QC
____________________
ALAN PAUL ![]() | Appellant |
|
- and - |
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THE CROWN |
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____________________
Robert
Linford for the Appellant
Mr Jonathan Barnes for the respondent
Hearing dates : 8 July 2011
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Mr Justice Ramsey:
Introduction
The Facts
Grounds of Appeal
Cross-Examination of Young Complainant Witnesses
"At the same time theright
of the defendant to a fair trial must be undiminished. When the issue is whether the child is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic for the advocate to formulate short, simple questions which put the essential elements of the defendant's case to the witness, and fully to
ventilate
before the jury the areas of evidence which bear on the child's credibility. Aspects of evidence which undermine or are believed to undermine the child's credibility must, of course, be
revealed
to the jury, but it is not necessarily appropriate for them to form the subject matter of detailed cross-examination of the child and the advocate may have to forego much of the kind of contemporary cross-examination which consists of no more than comment on matters which
will
be before the jury in any event from different sources. Notwithstanding some of the difficulties, when all is said and done, the witness whose cross-examination is in contemplation is a child, sometimes
very
young, and it should not take
very
lengthy cross-examination to demonstrate, when it is the case, that the child may indeed be fabricating, or fantasising, or imagining, or
reciting
a well
rehearsed
untruthful script, learned by
rote,
or simply just suggestible, or contaminated by or in collusion with others to make false allegations, or making assertions in language which is beyond his or her level of comprehension, and therefore likely to be derived from another source. Comment on the evidence, including comment on evidence which may bear adversely on the credibility of the child, should be addressed after the child has finished giving evidence."
Counsel: And yet you decided just simply to sit there in the pool until you see Heidi come out and you get out. Is that it?
Witness: Yes, he didn't let me out when Heidi wasn't there.
Counsel: So you say. If what you describe happened you must have been very
upset?
Witness: Yes
Counsel: Very
distressed as it was happening?
Witness: Yes
Counsel: Screaming, as it was happening, as best you could when you head was above water?
Witness: Yes
Judge: This is not the way to conduct cross-examination of a fifteen year-old. I have allowed you to go on longer than I should have done.
Counsel: My Lord. So be it. You describe, what, spluttering, going under the water?
"Withregards
to cross-examination the norm in this country is for the defence to put its case in all its details to the witness. That practice has come quite sensibly, you may think, to be modified where children are concerned.
Accepted practice now tailored to the age and perceived maturity of the child witness concerned, is to put often quite shortly the essence of the Defendant's case; here, asregards
both Mr
Wills
and [the co-defendant], that nothing inappropriate happened, and/or the witness was mistaken and/or have been put up to it and/or was confusing the Defendant with another person and then to ask some questions bearing on the child witness' credibility. There was, you may have
remarked,
a difference in styles adopted by Mr Linford and Mr
Rowsell.
That was not a
reflection,
and you must not treat it as a
reflection
of the strength or weakness of either Defendant's case. Those cases have been fully and properly
ventilated
before you, by the Defendants themselves and in the closing speeches."
Calling RF
as a witness
"They must decide how they prove the case; they should not call unnecessary witnesses. For example, there may be a large number of witnesses of some major disaster from whom a selection should be made. There may be specialreasons
why they do not wish to call even an important witness, for example because of the extreme youth of a complainant and the likely adverse consequences or because the witness is too frightened and
refuses
to give evidence."
Conclusion