Convicted pervert who abused boy has appeal dismissed
The appellant (W) appealed by way of reference from the Criminal Cases Review Commission against conviction on six counts of indecent assault on a male child.
The case against Whitehead was that from 1987 to 1989 he had indecently assaulted the complainant (C), who was then aged 12 to 14 years. C was the son of Whitehead’s friends and neighbours.
Whitehead was a travelling salesman, then in his forties, and had taken C away on trips, which included overnight stays, on which the same bedroom was used, and had, on occasion, taken C to his home.
The complaint to the police was not made until 2000. The prosecution case was that C had been sexually assaulted persistently during the trips and at Whitehead’s home, by being masturbated to ejaculation by Whitehead.
In interview, Whitehead denied that any indecency had taken place.
At trial, he did not give evidence, but relied on his answers in interview. C was thoroughly cross-examined at the trial and his evidence was fully summarised to the jury.
The judge directed the jury that they were perfectly entitled to convict Whitehead on C’s evidence alone but only after having first carefully assessed his reliability as a witness, and taking account of inconsistencies in his evidence.
Whitehead was subsequently convicted. Whitehead contended that the judge had erred in his summing up by failing to direct the jury that they had to be satisfied that the prosecution had established a case to answer before drawing any inferences from Whitehead’s silence.
He submitted that, because of that defect in the summing up, it could not be known what role Whitehead’s silence had played in the decision to convict, and that it was possible that the jury had reservations about the reliability of C’s evidence and had used Whitehead’s silence to shore up that evidence.
Whitehead contended that his conviction was, accordingly, unsafe.
HELD: Appeal dismissed
If a jury was sure of the reliability of a complainant’s evidence, corroborated or not, reference to a defendant’s silence was unnecessary. Parliament had intended that a jury should be entitled to bear silence in mind in cases in which it had not already decided upon guilt.
Clearly, the jury should start with a consideration of the evidence and not with the defendant’s silence.
It had to conclude that it was sufficiently cogent to call for an explanation before considering the implications of the defendant’s silence.
Having crossed that threshold, the jury was entitled to consider the defendant’s silence, as a further evidential factor, and in the context of the evidence as a whole.
In the instant case, the judge had given the plainest direction that Whiteheads’s failure to give evidence could not on its own prove his guilt, and there was no real possibility that the jury had failed to approach the case correctly. Accordingly, Whiteheads’s conviction was safe.
