Ngwenya v Crown Prosecution Service

On an appeal by way of case stated, the court asks whether the evidence was capable of supporting the conviction. It does not retry the facts or substitute its own assessment of witness credibility. A trial or appellate court may accept earlier recorded evidence from a young complainant and reject a later retraction where the evidence is coherent, consistent with other accounts and supported by medical evidence. The court is entitled to rely on the lower court’s direct assessment of the witness, particularly where the live evidence is internally inconsistent. An adjournment for a transcript may properly be refused where the application is late and the transcript is unlikely to affect the issues raised by the case stated.

The claimant appealed by way of case stated against the dismissal of her appeal against a conviction for assault under section 39 of the Criminal Justice Act 1988. The conviction followed allegations that she had hit her six-year-old daughter with a skipping rope.

At the Crown Court appeal, the child’s recorded evidence-in-chief supported the allegation, but her later evidence given by video link substantially retracted it. The Crown Court accepted the recorded account, rejected the retraction and dismissed the appeal. The central question before the Divisional Court was whether there was evidence on which the Crown Court could properly convict.

1. Appeal dismissed. The Crown Court had approached the evidence properly and carefully and was entitled to conclude that the assault was proved.
2. The question on the case stated was whether there was evidence capable of entitling the Crown Court to convict of an offence contrary to section 39 of the Criminal Justice Act 1988. The answer was plainly affirmative.
3. The Crown Court was entitled to prefer the child’s video-recorded evidence-in-chief to her later evidence given by video link. It had found the recorded account clear, unequivocal, consistent and compelling. The earlier accounts to the police and social worker were consistent, and the medical evidence supported the described mechanism of injury.
4. The Crown Court was also entitled to conclude that the later evidence was unreliable. The child’s evidence in re-examination was internally inconsistent, and the suggestion that she had repeatedly invented the allegation as a joke was not supported by the surrounding circumstances or medical evidence. The lower court was in an advantaged position to evaluate the evidence.
5. An adjournment for a transcript of the Crown Court hearing was properly refused. The case stated had been filed many months earlier, no application to amend it had been made, and the transcript was unlikely to cast new light on the issues. Lord Justice Maurice Kay agreed with the judgment of Mr Justice Penry-Davey.

• High Court (Administrative Court): The appeal by way of case stated was dismissed. The court held that the Crown Court had been entitled to convict on the evidence.
• Bradford Crown Court: The claimant’s appeal against conviction was dismissed on 1 June 2007.
• Bradford Justices: The claimant was convicted of assault on 11 January 2007.