Macaulay Moody [2019] EWCA Crim 1222
Summary
In R v Macaulay Moody [2019] EWCA Crim 1222, the Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence, reducing the term of imprisonment from eight years to five years.
Mr Moody was convicted on 7th September 2018 in the Crown Court at Cardiff of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. On 12th October 2018 he was sentenced to eight years’ imprisonment with consequential orders. He appealed against both conviction and sentence by leave of the Single Judge.
The complainant, JA, aged fifteen, was a friend of the appellant’s girlfriend and often stayed with them. The Crown’s case was that in the early hours of 17th May 2018, whilst JA was asleep on a sofa at the appellant’s home, she woke to find him digitally penetrating her vagina. The prosecution relied upon JA’s account, the evidence of a taxi driver and her parents as to her distress, a laceration on her labia minora, and DNA matching the appellant which was found inside her knickers at a match rate of one in one billion. The defence case was that the allegation was fabricated.
JA gave evidence that she felt the appellant rubbing her leg and pushed him away, that he then put a finger into her vagina, and that she felt a scratch. She woke and told him to go away but he asked for a kiss, saying “You liked that, didn’t you?” She began to cry and told him she was afraid. He told her to forget all about it. She said she wanted to go home. He said she would get him into trouble. As she sought to send messages to her family he asked her not to, pulled the charger from her mobile device, told her to be quiet so as not to wake the children, apologised and told her to forget what had happened. Her parents sent a taxi. The appellant followed her out as she left. She told her father what had happened and the police were called. She explained that she had not mentioned sexual assault in her text messages to her father because she was concerned lest he drive to collect her having had a drink and because she did not want to cause her mother panic.
In cross examination she denied that she had shared a cigarette with the appellant or shaken his hand, and maintained that their sole physical contact was reflected in her allegation. That line of questioning was directed at establishing an alternative explanation for the DNA inside her knickers by transference. Her parents confirmed that her message to them came at about 2 am. When she arrived home she was distraught, upset and shaking, and said the appellant had touched her. When asked at initial contact with the police whether there had been penetration, she said she did not know because, she told the jury, she did not understand the term. The taxi driver thought her distressed and upset.
In interview the appellant denied the offences. He told the jury that JA was awake when he arrived home and told him his girlfriend was putting the children to bed. He went to bed at about 1.20 am with JA still awake on her mobile telephone. He woke when the front door was slammed and ran downstairs to see her in the back of a taxi. Baffled, he asked what she was doing but she ignored him. He could not recall physical contact with her, but they shared cigarettes and would have touched when she was in the house. They would not hug in greeting. He could offer no explanation as to his DNA on her clothing since they had been sitting apart.
At trial, counsel sought to ask JA whether she was biased against the appellant or had a motive to fabricate her evidence, and to explore an alternative physical explanation for the conditions upon which the Crown relied. He sought to present the jury with a tenable alternative theory which explained what, according to the appellant, was a completely fabricated allegation. He relied upon the terms of section 41(3)(a) and section 41(2) of the Youth Justice and Criminal Evidence Act 1999. The proposed questions concerned a conversation about a pregnancy fear. The complaint founding the allegation came fewer than twenty four hours after the appellant’s girlfriend announced she would tell JA’s mother of the latter’s pregnancy fear. The appellant claimed the allegation was designed to deflect attention in a pre-emptive strike.
The trial judge found that the purpose of the questions was not to impugn JA’s credibility. She referred to R v PK [2008] EWCA Crim 434 and to R v P [2013] EWCA Crim 2331. Taken as a whole, the proposed questions went to sexual behaviour, though sexual behaviour and pregnancy were inextricably linked. The judge thought the suggestion of a factual basis setting up a motive for JA to lie was extremely speculative and completely lacking any evidential basis. It was one of a number of potential scenarios in relation to motive. Section 41 aimed to preclude speculative questioning about sexual behaviour. The jury would not be at risk of an unsafe conclusion as a consequence of preclusion and the application was refused.
Counsel also applied to adduce evidence of JA’s bad character in reliance on the terms of section 100(1)(b) of the Criminal Justice Act 2003, the matter in issue being JA’s credibility. The reprehensible behaviour fell into three parts: first, her use of racist language; second, her aggression; and third, her willingness to manipulate and a certain skill at it. The judge accepted that her racist language was likely to affect her standing before a tribunal of fact. JA’s attitude was said to show a blatant disregard for the feelings of others, relevant to the making of a false allegation. That the appellant was of dual heritage had also been raised, although it was unclear whether JA knew this and in any event there was no evidence she showed him animosity.
The judge considered that the racist remarks, made by a schoolgirl at least two years before the allegation and in the context of misbehaviour at school, had no probative value. JA had been an aggressive, disobedient pupil who frequently said hurtful things to get a reaction. Aggressive, difficult behaviour demonstrated, so the argument went, lack of respect for authority and that JA would not care about the consequences of a false allegation. The judge found this episode had been some eighteen months before the index allegation, again in the context of the behaviour of a fifteen year old girl, but there was no suggestion of untruthfulness or of dishonesty. JA had been a victim of child sexual exploitation to which the offender had pleaded guilty, and her behaviour was considered by experts in the field to be a result of it. The judge ruled this evidence lacked substantial probative value as to her credibility and was exactly what the Act was designed to exclude.
Finally, the judge turned to two false complaints, both in 2015, in one of which JA was reported to have said “Don’t touch me”, when the truth was that she had touched the other party. The judge found such trivial misbehaviour significantly predated the index allegation. The second, to a male teaching assistant, was said to be JA remarking “I could say you’ve done anything to me if we’re working on our own, and you could lose your job”. That was not followed by any allegation. At its highest it showed that JA was aware she could make a false allegation and of the consequences. That was a long way from demonstrating her capable of making a false allegation and it lacked substantial probative value. Leave on all applications was refused.
The grounds of appeal fell into two parts. First, the judge wrongly refused the application under section 41 to allow questioning of JA about the pregnancy dialogue. The ruling prevented the defence from advancing a key issue, namely a motive for JA to lie, and the timing of the complaint which was compelling and unchallenged. Second, the judge was wrong to refuse to admit the evidence of JA’s bad character. School records detailed her numerous racist comments, her exclusion for disruption and verbal abuse, her threat to fabricate complaints, an arrest for common assault, her rejection of anger management counselling, and her inappropriate approaches to older men. Her ingrained racist views might have affected her credibility. The appellant was dual heritage, a possible further motive for a false allegation. Those matters would have affected her likely standing with the jury and the judge was wrong to conclude that none had substantial probative value.
Lady Justice Rafferty, giving the judgment of the court, held that the approach taken by the judge to the application under section 41 was correct. The judge wisely identified it as precisely the sort of thing that section 41 was designed to exclude. It was no more than speculation. The timing of the complaint was significant, not just because it was very close to the alleged offence, but also for its impact on JA. The court was entirely confident in the judge’s ruling.
As to bad character, the judge was entitled to rule that the poor behaviour of JA at school, which could be both aggressive and anti-social, was something with which the jury need not be troubled. Evidence of her ability to make a false accusation fell into the same category, not least because there had never been a follow-up false allegation. The court was more troubled about the suggestion that she was capable of expressing racist language more than once and any effect that might have had upon what the jury made of her. In 2019 racism is quite often well understood by those of school age as capable of deployment for malign motive. Some judges might have taken the view that it was something the jury should consider. Even if that were so, the court was untroubled about the safety of the conviction. The difficulty with which the appellant was confronted was the DNA inside JA’s knickers. It protected the safety of the conviction which was in no way imperilled by any ground advanced. The appeal against conviction was dismissed.
As to sentence, the grounds were that the case fell at the bottom of category two within the Sentencing Guidelines because of the absence of a number of serious features, and that the judge was wrong to find an abuse of trust. Consequently, as opposed to category 2A it should have been in category 2B with a starting point of six years and a range of four to nine years. Alternatively, even if correctly found to be an abuse of trust, it should have been positioned at the bottom of the range, and substantially below the category 2A starting point of eight years. Finally, the complaint was that the judge was wrong to decline to treat the appellant’s age, twenty at the offence, as mitigating.
The court held that there was something in this argument. JA’s age, fifteen, was not far short of the appellant’s. More particularly, this was not abuse of trust. The judge may have fallen into error in positioning the matter within category 2A. The court was in any event persuaded that the age difference, fifteen and twenty, was insufficiently reflected. The appropriate category was 2B. Consequently, loyal to the judge’s scheme of sentencing, the court reduced the overall term to five years. To that limited extent, the appeal against sentence succeeded. In short, the conviction was safe and stood but the sentence was excessive and was reduced from eight years to five years.
Mr Moody was convicted on 7th September 2018 in the Crown Court at Cardiff of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. On 12th October 2018 he was sentenced to eight years’ imprisonment with consequential orders. He appealed against both conviction and sentence by leave of the Single Judge.
The complainant, JA, aged fifteen, was a friend of the appellant’s girlfriend and often stayed with them. The Crown’s case was that in the early hours of 17th May 2018, whilst JA was asleep on a sofa at the appellant’s home, she woke to find him digitally penetrating her vagina. The prosecution relied upon JA’s account, the evidence of a taxi driver and her parents as to her distress, a laceration on her labia minora, and DNA matching the appellant which was found inside her knickers at a match rate of one in one billion. The defence case was that the allegation was fabricated.
JA gave evidence that she felt the appellant rubbing her leg and pushed him away, that he then put a finger into her vagina, and that she felt a scratch. She woke and told him to go away but he asked for a kiss, saying “You liked that, didn’t you?” She began to cry and told him she was afraid. He told her to forget all about it. She said she wanted to go home. He said she would get him into trouble. As she sought to send messages to her family he asked her not to, pulled the charger from her mobile device, told her to be quiet so as not to wake the children, apologised and told her to forget what had happened. Her parents sent a taxi. The appellant followed her out as she left. She told her father what had happened and the police were called. She explained that she had not mentioned sexual assault in her text messages to her father because she was concerned lest he drive to collect her having had a drink and because she did not want to cause her mother panic.
In cross examination she denied that she had shared a cigarette with the appellant or shaken his hand, and maintained that their sole physical contact was reflected in her allegation. That line of questioning was directed at establishing an alternative explanation for the DNA inside her knickers by transference. Her parents confirmed that her message to them came at about 2 am. When she arrived home she was distraught, upset and shaking, and said the appellant had touched her. When asked at initial contact with the police whether there had been penetration, she said she did not know because, she told the jury, she did not understand the term. The taxi driver thought her distressed and upset.
In interview the appellant denied the offences. He told the jury that JA was awake when he arrived home and told him his girlfriend was putting the children to bed. He went to bed at about 1.20 am with JA still awake on her mobile telephone. He woke when the front door was slammed and ran downstairs to see her in the back of a taxi. Baffled, he asked what she was doing but she ignored him. He could not recall physical contact with her, but they shared cigarettes and would have touched when she was in the house. They would not hug in greeting. He could offer no explanation as to his DNA on her clothing since they had been sitting apart.
At trial, counsel sought to ask JA whether she was biased against the appellant or had a motive to fabricate her evidence, and to explore an alternative physical explanation for the conditions upon which the Crown relied. He sought to present the jury with a tenable alternative theory which explained what, according to the appellant, was a completely fabricated allegation. He relied upon the terms of section 41(3)(a) and section 41(2) of the Youth Justice and Criminal Evidence Act 1999. The proposed questions concerned a conversation about a pregnancy fear. The complaint founding the allegation came fewer than twenty four hours after the appellant’s girlfriend announced she would tell JA’s mother of the latter’s pregnancy fear. The appellant claimed the allegation was designed to deflect attention in a pre-emptive strike.
The trial judge found that the purpose of the questions was not to impugn JA’s credibility. She referred to R v PK [2008] EWCA Crim 434 and to R v P [2013] EWCA Crim 2331. Taken as a whole, the proposed questions went to sexual behaviour, though sexual behaviour and pregnancy were inextricably linked. The judge thought the suggestion of a factual basis setting up a motive for JA to lie was extremely speculative and completely lacking any evidential basis. It was one of a number of potential scenarios in relation to motive. Section 41 aimed to preclude speculative questioning about sexual behaviour. The jury would not be at risk of an unsafe conclusion as a consequence of preclusion and the application was refused.
Counsel also applied to adduce evidence of JA’s bad character in reliance on the terms of section 100(1)(b) of the Criminal Justice Act 2003, the matter in issue being JA’s credibility. The reprehensible behaviour fell into three parts: first, her use of racist language; second, her aggression; and third, her willingness to manipulate and a certain skill at it. The judge accepted that her racist language was likely to affect her standing before a tribunal of fact. JA’s attitude was said to show a blatant disregard for the feelings of others, relevant to the making of a false allegation. That the appellant was of dual heritage had also been raised, although it was unclear whether JA knew this and in any event there was no evidence she showed him animosity.
The judge considered that the racist remarks, made by a schoolgirl at least two years before the allegation and in the context of misbehaviour at school, had no probative value. JA had been an aggressive, disobedient pupil who frequently said hurtful things to get a reaction. Aggressive, difficult behaviour demonstrated, so the argument went, lack of respect for authority and that JA would not care about the consequences of a false allegation. The judge found this episode had been some eighteen months before the index allegation, again in the context of the behaviour of a fifteen year old girl, but there was no suggestion of untruthfulness or of dishonesty. JA had been a victim of child sexual exploitation to which the offender had pleaded guilty, and her behaviour was considered by experts in the field to be a result of it. The judge ruled this evidence lacked substantial probative value as to her credibility and was exactly what the Act was designed to exclude.
Finally, the judge turned to two false complaints, both in 2015, in one of which JA was reported to have said “Don’t touch me”, when the truth was that she had touched the other party. The judge found such trivial misbehaviour significantly predated the index allegation. The second, to a male teaching assistant, was said to be JA remarking “I could say you’ve done anything to me if we’re working on our own, and you could lose your job”. That was not followed by any allegation. At its highest it showed that JA was aware she could make a false allegation and of the consequences. That was a long way from demonstrating her capable of making a false allegation and it lacked substantial probative value. Leave on all applications was refused.
The grounds of appeal fell into two parts. First, the judge wrongly refused the application under section 41 to allow questioning of JA about the pregnancy dialogue. The ruling prevented the defence from advancing a key issue, namely a motive for JA to lie, and the timing of the complaint which was compelling and unchallenged. Second, the judge was wrong to refuse to admit the evidence of JA’s bad character. School records detailed her numerous racist comments, her exclusion for disruption and verbal abuse, her threat to fabricate complaints, an arrest for common assault, her rejection of anger management counselling, and her inappropriate approaches to older men. Her ingrained racist views might have affected her credibility. The appellant was dual heritage, a possible further motive for a false allegation. Those matters would have affected her likely standing with the jury and the judge was wrong to conclude that none had substantial probative value.
Lady Justice Rafferty, giving the judgment of the court, held that the approach taken by the judge to the application under section 41 was correct. The judge wisely identified it as precisely the sort of thing that section 41 was designed to exclude. It was no more than speculation. The timing of the complaint was significant, not just because it was very close to the alleged offence, but also for its impact on JA. The court was entirely confident in the judge’s ruling.
As to bad character, the judge was entitled to rule that the poor behaviour of JA at school, which could be both aggressive and anti-social, was something with which the jury need not be troubled. Evidence of her ability to make a false accusation fell into the same category, not least because there had never been a follow-up false allegation. The court was more troubled about the suggestion that she was capable of expressing racist language more than once and any effect that might have had upon what the jury made of her. In 2019 racism is quite often well understood by those of school age as capable of deployment for malign motive. Some judges might have taken the view that it was something the jury should consider. Even if that were so, the court was untroubled about the safety of the conviction. The difficulty with which the appellant was confronted was the DNA inside JA’s knickers. It protected the safety of the conviction which was in no way imperilled by any ground advanced. The appeal against conviction was dismissed.
As to sentence, the grounds were that the case fell at the bottom of category two within the Sentencing Guidelines because of the absence of a number of serious features, and that the judge was wrong to find an abuse of trust. Consequently, as opposed to category 2A it should have been in category 2B with a starting point of six years and a range of four to nine years. Alternatively, even if correctly found to be an abuse of trust, it should have been positioned at the bottom of the range, and substantially below the category 2A starting point of eight years. Finally, the complaint was that the judge was wrong to decline to treat the appellant’s age, twenty at the offence, as mitigating.
The court held that there was something in this argument. JA’s age, fifteen, was not far short of the appellant’s. More particularly, this was not abuse of trust. The judge may have fallen into error in positioning the matter within category 2A. The court was in any event persuaded that the age difference, fifteen and twenty, was insufficiently reflected. The appropriate category was 2B. Consequently, loyal to the judge’s scheme of sentencing, the court reduced the overall term to five years. To that limited extent, the appeal against sentence succeeded. In short, the conviction was safe and stood but the sentence was excessive and was reduced from eight years to five years.
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).