Macaulay Moody [2019] EWCA Crim 1222

The appellant was convicted of assault by penetration and sentenced to 8 years imprisonment. He appealed against conviction and sentence.

The victim, JA, was 15 and friends with the appellant’s girlfriend, HB, and often stayed with them. Her account was that she awoke on the sofa to find the appellant digitally penetrating her vagina, the Crown relied on her account, evidence from a taxi driver and her parents of her distress, a laceration on her labia minora and DNA. The defence was fabrication.

The defence alleged that HB had threatened to tell JA’s mother of JA’s pregnancy fear and that the allegation was made to deflect attention in a pre-emptive strike. The appeal was on the grounds that the judge wrongly refused the application under s41 to allow questioning of JA about the pregnancy dialogue and that the judge was wrong to refuse to admit evidence of JA’s bad character.

Held: the Court was entirely confident in the judge’s ruling on the s41 application, the approach taken was to identify it as precisely the sort of thing that s41 was designed to exclude. School records detailed JA’s numerous racist comments, threat to fabricate complaints and inappropriate approaches to older men, it was said her ingrained racist views might have affected her credibility. The appellant was dual heritage which may be a possible further motive for a false allegation. The judge was entitled to rule that her poor behaviour at school was something with which the jury should not be troubled nor should the threat to make a false accusation as that had not actually been followed up by a false allegation. The racism was of more concern and some judges may have taken the view that it was something the jury should consider but even so, the Court were untroubled about the safety of the conviction. The difficulty for the appellant was the DNA inside JA’s underwear. The appeal against conviction was dismissed. As to sentence the overall term was reduced to 5 years as the appropriate category was 2B rather than 2A. This was not an abuse of trust and JA’s age was not far short of the appellant’s (20).