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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Harris, R. v (Rev 3) [2017] EWCA Crim 1849 (16 November 2017) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2017/1849.html Cite as: [2017] EWCA Crim 1849 |
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ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR MR JUSTICE SWEENEY
T20130553
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE McGOWAN
and
HIS HONOUR JUDGE BROWN, THE RECORDER OF PRESTON
(SITTING AS A JUDGE OF THE CACD)
____________________
| Regina |
Respondent |
|
| - and - |
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Rolf Harris | Appellant |
____________________
(Neither of the above-named Counsel appeared in the Court below)
Mr Stephen Vullo QC and Mr David Patience (instructed by 3D Regulatory Solicitors)
for the Appellant
Hearing dates: 7th-8th November 2017
____________________
Crown Copyright ©
Lord Justice Treacy:
Introduction
Waiver of Privilege
Ground 1 - Count 1 (WR) – The Evidence at Trial
"24. The Metropolitan Police checked Portsmouth newspapers between April 1968 and May 1970. No trace was found of the event at the Leigh Park Community Centre described by WR. The police action recorded that 'all relevant lines were exhausted and no media available.'
25. A police investigator attended Portsmouth Library and the British Library to examine archived editions of 'The News' Portsmouth, published between January 1967 and May 1974. He found no reference to RolfHarris.
26. The Metropolitan Police issued a witness appeal to anyone who attended Leigh Park Community Centre between 1968 and 1972 as either a child or an adult asking if anyone knew of any events held at the community centre during this time. A letter was delivered to surrounding roads on the housing estate.
27. Between 12 March 2014 and 31 March 2014 the Metropolitan Police conducted enquiries in the vicinity of Leigh Park, Havant, Portsmouth. The investigator stated that the enquiries were intended 'to ascertain if any residents could recall the subject of RolfHarris
being in the area during the late 1960s or 1970s' but, 'no persons were able to assist'."
Fresh Evidence – Count 1
Harris
attending the community centre. The Crown accepts that the evidence now put forward by Daphne James potentially undermines his reliability and credibility. He claimed at trial to be able to date the applicant's appearance at the centre to about 1967 by reference to having been on leave following return from a long tour of duty in Korea. That might have been thought to be somewhat odd since the Korean War took place in the early 1950s.
The Law
Discussion of Ground 1
Harris
to the centre at the relevant time. He confirmed the event described by WR and his evidence had emerged after a public appeal for witnesses so that he would have appeared to be independent and disinterested. His evidence was also significant because the account given suggested an impromptu visit to the centre by Mr
Harris.
This enabled the Crown to counteract defence reliance on the absence of reports of a visit in the media. There was some minor other supporting evidence from Mr Willbourn, but it was hearsay and somewhat vague. If Mr James is removed from the picture, WR is left on her own in asserting an encounter with Mr
Harris
at the community centre in circumstances where there was a body of evidence to the contrary.
Harris
ever attended the community centre in 1969 to the extent that we cannot view the conviction on Count 1 as safe. The remaining evidence of WR herself, taken together with evidence of her complaints to others prior to the exposure of Jimmy Savile, is insufficient to give us the necessary degree of confidence in the verdict on Count 1.
Harris,
it is hard to see that there could be a reasonable explanation for failure to call her. We decline to receive her evidence.
Harris.
As to that second point, his information does not add to what was already before the jury. As to the first point, having considered the statements given by other members of his family and evidence given by D.C. Atkin, we are unconvinced about the reliability of JW's assertion, although we accept his honesty. More significantly perhaps, we consider that his reliability is seriously undermined by his insistence that police officers in October 2013 told him that they had another witness who could place Rolf
Harris
at the community centre. Having heard from D.C. Atkin, who contradicted that assertion, we are satisfied that JW is mistaken in his recollection and have seen documentary evidence which clearly supports that conclusion. For these reasons, we decline to receive the evidence of JW.
Conclusion on Ground 1
Grounds 2 and 2A - Counts 10 to 12 (TL)
"28. Medical records for TL dated 10 November 2006 include that she told a doctor that she had been very upset and had been having nightmares as she had been thinking about past sexual abuse by an uncle from the age of 5 to 15.
29. Medical records and records from drug and alcohol counselling between 2011 and 2013 refer to TL disclosing a history of sexual abuse by a maternal uncle between the ages of 4 and 7 years old.
30. Medical records for TL from a Dr Leicester (consisting of two A4 pages of handwritten notes, two letters and a copy of a business card for Dr Leicester) include a counselling report from February that states: 'T presented with a number of significant effects from the sexual assault. Indeed she suffers from a range of psychiatric illnesses. For example, she has recently been diagnosed with borderline personality disorder and post-traumatic stress disorder. Equally, she has suffered from anorexia and bulimia from the age of 11 to 31. She has used alcohol as a way of trying to cope'."
Applicant's Submissions on Counts 10-12 – TL
The Crown's Response
Discussion on Counts 10-12
Harris,
TL instructed solicitors to bring a civil claim against him. Ms Prestidge, representing Mr
Harris
in those proceedings, in due course received disclosure of medical records pertaining to TL. By that means, Ms Prestidge was able to identify and obtain still further records. It is those further records accumulated in the process of the civil proceedings which have enabled the applicant to pursue this argument.
Harris,
she had complained to doctors and other professionals about sexual abuse of her by an uncle when she had been younger, but had made no complaint whatsoever about Mr
Harris.
It is perhaps significant that at trial the defence made no application under s.8 of the 1996 Act for further disclosure. That suggests that the information referred to above was considered to be sufficient for their purposes, even when it must have been apparent that further information might well be available.
Harris.
Harris
and Jimmy Savile.
Harris
to Ms Loughlin on 28 November 2012. Ms Loughlin's statement to that effect was read at trial and the contention now made is that she should have been challenged as to the date but was not, because of a misapprehension by the defence team to the effect that TL's first complaint had been made in September 2011. The basis for testing Ms Loughlin's fixing of the date was said to arise from the fact that Ms Bowsher's researches showed that in the days following 28 November 2012 a tweet referred to Mr
Harris
as being under investigation for sexual assault, and Australian newspapers had reported that an Australian entertainer in his 80s was under investigation (without naming Mr
Harris).
In essence, if Ms Loughlin had been cross-examined and the date of complaint then moved to one later than 28 November, it would enable the defence to suggest that TL had been influenced in her complaint by that publicity.
Harris.
That was supported by evidence from the brother, although he had not appreciated at the time that the comments made by his sister represented TL's own experience. Secondly, although an in-trial e-mail which we have seen appears to show that junior counsel had at one point misapprehended the date of complaint to Ms Loughlin, examination of his papers and those of leading counsel show that both had highlighted the date of 28 November 2012. Further, we have seen contemporaneous documentation created by Ms Loughlin which shows that the date of the assessment was 28 November 2012, as described in her witness statement. The documents refer to an allegation of abuse but, in keeping with the clinic's policy, did not record the alleged perpetrator.
Harris
and prior to more general comment in the Australian media stating that "an Australian legend" was being investigated by British police. Thus the point would not have assisted the defence, and might have reinforced TL's credibility with the jury.
Harris's
name emerged in the mainstream media in April 2013 as the focus of an investigation into sexual assault, TL had reacted in a manner, in the presence of Ms Loughlin, which suggested to Ms Loughlin that only at that point had TL become aware of other complaints about Mr
Harris.
It was this disclosure in Australian mainstream media which was closely followed by TL's complaint to the police. It seems to us that this sequence of events demonstrates that no harm was done to Mr
Harris's
case by a failure to challenge Ms Loughlin as to the date when TL complained to her. The documents we have seen, as we have already said, fix that date in a way which would have made challenge to it unproductive. Accordingly, this particular argument fails. The fresh materials relied on do not afford a basis for allowing the appeal and we decline to receive them.
Conclusion on Counts 10-12
Ground 3 – Cross-admissibility
i) CM (statement read) said that in 1989 when she was aged about 11 she was visiting the home of family friends in Australia where the applicant was a house guest. He said he wanted to be the first to "tongue-kiss" her. He held her in a gentle hug, leant forward and put his tongue in her mouth. In his evidence, the applicant accepted visiting the house and that he must have met CM. He said the incident simply did not happen and he did not know why CM would lie.
ii) MC (statement read) said that she met the applicant in 1970 when she was 16 at a private party in New Zealand. She obtained his autograph which she produced, together with a photograph of them together at the event. The applicant was friendly and asked her to dance. While they danced he put his hand down her back onto her bottom and then moved his hand to the front of her dress and up between her legs to her crotch. The applicant said that although he had been to New Zealand many times he had no recollection of the party. However he accepted, having seen the photograph and autograph, that he must have met MC there. He denied any assault and said that MC was lying although he did not know the reason why.
iii) FW said that in 1970 when she was 18 she visited Malta for a holiday. She met the applicant while seeking assistance in a bar for a friend who had been injured. Later that day she had a drink with the applicant and he offered to show her some art in a public area of the bar. Once in that room he shut the door and tried to kiss her. Initially she was flattered but then he started to touch her breasts and put his hand into her knickers and digitally penetrated her vagina against her wishes. He also placed her hand on his penis through his clothing. In evidence the applicant accepted that he had met FW, since she had produced a photograph of them eating. He said that he had no recall of her and that her account of sexual assault was a fabrication.
iv) Tony Porter, a retired actor and journalist, said that in about 1983-1985 whilst working on a pre-recorded television series with the applicant he saw him tickle a female make-up artist's breasts as she applied make-up, and heard him making lascivious noises. The make-up artist was in her late 20s or mid 30s and clearly did not like it. The applicant said he had no recollection of Mr Porter, but he had not indecently assaulted the make-up artist and was allergic to face powder.
v) SD was a make-up artist who said that in 1986, when she was 24, she was responsible for the applicant's make-up for a television production in Australia. Filming took place over eight hours. The applicant had run his hand up the inside of her leg and inside her shorts a number of times during that day. The applicant's brother had been present on one occasion and there was an all-male crew. She had been upset and had complained to her supervisor. The applicant gave evidence that he had never taken part in a show which had lasted eight hours. He was allergic to powder and SD was simply imagining the incident. The applicant's brother gave evidence in which he said he had no recollection of an eight-hour production. The allegation that groping took place in his presence was ridiculous and he would have stopped it.
vi) JH said that the applicant hugged her when they were introduced at an event at a hardware store in May 1991. At the time she was about 16. The applicant put his hand on her breast and his other hand on her buttock. When she stepped back he had laughed. She had told her mother, who was present, that he was a dirty old man. JH's mother said that the applicant had focussed on her daughter and confirmed that her daughter had stepped away from close proximity to the applicant. He had told her that he was "very handy". Her daughter had refused to participate during his act. The mother also said that the applicant had rubbed himself against her briefly but forcefully whilst a photograph was taken. She had trodden on his foot, looked him in the eye and told him that he was a disgusting creature. His expression changed from a smile to a sneer and he leaned forward saying that "she" (her daughter) had "liked it". The applicant accepted he had attended the event and had met JH and her mother. A photograph of the three of them had been produced. He denied indecent assault.
Discussion on Cross-admissibility
Harris
had ever visited the community centre and whether he had been correctly identified by WR. In that respect, Count 1 was different from the remaining counts.
Harris, and that in relation to JH there was a letter written by him to JH's father in 1997 which, on one interpretation, represented a calculated attempt to avoid the police being informed and whose terms indicated that it had been written by someone who knew perfectly well that he had been abusing her since she was 13.
Conclusion on Cross-admissibility
Overall Conclusions
i) The conviction on Count 1 is quashed as unsafe, leave to appeal and an extension of time having been granted.
ii) Leave to appeal is refused on Counts to 2 to 12 inclusive. The applications relating to those counts are refused.
iii) We have considered the question of re-trial on Count 1. The Crown does not seek a re-trial. We agree that one is not in the public interest and make no order in that respect.