[O’Dowd3] Kevin Kenneth O’Dowd 28th November 2008 Court of Appeal

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is redacted by cathy fox blog for personal and assault details.

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[2008] EWCA Crim 3252

No: 200703874 B1

IN THE COURT OF APPEAL CRIMINAL DIVISION

Friday, 28th November 2008

Lord Justice Hooper

Regina

v.

Kevin Kenneth O’dowd


Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

Mr J Hodivala appeared on behalf of the Applicant

JUDGMENT

(As approved by the Court)

1. SIR PETER CRESSWELL: On 22nd June last year at the Central Criminal Court before His Honour Judge Hawkins QC, after a trial which took place over a period exceeding six months, the appellant was convicted by majority verdicts of 10 to 2 and sentenced to life imprisonment (less 1001 days spent on remand) as follows:

Count 1—false imprisonment, life, minimum 9 years to be served.

Count 3—threatening to kill, 7 years concurrent.

Counts 4 and 7—rape, life as for count 1.

Count 5—administering poison with intent, 4 years concurrent.

Count 6—sexual assault, 7 years concurrent.

Count 2 (which charged rape) was quashed.

2. For a period during the trial the applicant dispensed with counsel and represented himself.

3. The renewed application for leave to appeal against conviction has come before the court today after refusal by the single judge. The applicant has been represented today by Mr Hodivala, pro bono, in respect of the original grounds 2, 7 and 8.

4. We grant leave in respect of two revised grounds, 1 and 2 as follows:

1. The learned judge was wrong to admit as bad character evidence an acquittal of rape in relation to [AB] , a conviction for rape in relation to [CD] and an alleged rape (where the complainant was [EF] ) stayed as an abuse of process.

2. The learned judge misdirected the jury as to the use that could be made of this bad character evidence and/or failed to direct the jury adequately, or at all, as to weaknesses the defence alleged in relation to each bad character allegation.

For the record, those two grounds replace earlier grounds 2, 5, 6, 7 and 8.

5. The appellant seeks leave in respect of grounds 1, 3 and 4. For reasons which appear below, we refuse leave to argue those grounds.

6. The alleged offences were said to have occurred between 15th and 18th September 2004. The prosecution case was as follows. The appellant locked the complainant in her flat and frightened her so that she did not dare to try to escape. He threatened to kill her with a knife, intending that she should fear that he would carry out his threat. He [Assault redacted] without her consent. He made her consume largactil tablets. He [assault redacted]

7. The defence case was that the complainant’s account was completely unreliable. The applicant maintained that he was the client of an escort agency and had had a number of paid encounters with the complainant. It was his perception that a romantic attachment had grown between them over the months. He knew, and was concerned, that she was a drug addict and wanted to help. He believed that all the sexual relations between them were consensual. He did not admit the particular offences alleged between 15th and 17th September, but if they did occur he said there was consent or he believed there was consent.

8. In February 2006 the Crown sought to introduce the following matters under the Criminal Justice Act 2003:

1. The alleged rape of AB in 1982 by calling evidence from AB. (The appellant was acquitted of rape of AB in March 1984)

2. Convictions for perjury and perverting the course of justice in October 1985 arising out of the rape trial.

3. The conviction of rape of CD in November 1988, by calling evidence from CD.

4. The evidence which supported the allegations by EF of rape, false imprisonment and indecent assault in 2000 by calling evidence from EF. The indictment arising from these offences was stayed in September 2003.

9. The defence argued that these matters would make a simple case complicated, expanded out of all proportion and unjust.

10. The judge’s reasons for permitting the introduction of these matters is found in volume II of the transcripts.

11. In December 2006 the defence made an application under section 78 of the Police and Criminal Evidence Act 1984 to exclude the bad character evidence on the basis that the Crown’s approach to adducing such evidence was unfair, contending that there had been difficulties with disclosure and that it was unfair to rely on the evidence. No transcripts from the trials relating to the complainants AB and CD were available, so the defence argued that it was not possible to know whether their evidence had been consistent with or had contradicted their statements. The applicant defended himself in the CD trial.

12. The judge referred to the defence list of reasons for exclusion and the extent of the evidence which the Crown was prepared to call, tender or read. The judge concluded that a fair trial was possible by the introduction of the evidence of the other complainants and the allegations arising out of the AB matter.

13. Once the complainant had given her evidence, the defence repeated the submissions that the bad character evidence should not be admitted under the 2003 Act or excluded under section 78 of PACE, adding that there was no proper case to answer on the basis that what evidence there was was vague, inherently weak and inconsistent. The judge ruled that the interests of justice were such that the jury should hear the evidence and that it was not unfair to admit it.

14. Mr Hodivala, for the appellant, has drawn the court’s attention to the case of R v McKenzie [2008] EWCA Crim 758 , and in particular to passages at paragraphs 22 to 26 and 33. He submits that the decision to admit the bad character material was wrong, improperly diverted the jury’s attention from the indictment evidence, and resulted in an unfair trial. Further, he submits that the summing up was insufficient to ensure the fairness of the trial.

15. In our opinion, the substituted grounds 1 and 2 merit consideration by the Full Court. We refer to the summing up volume VI, pages 10 D to 13 E, where the judge refers to some of the principal reasons for the time taken, including the defendant’s health problems and his dispensing with his counsel. After due allowance for these matters, the case took a wholly exceptional period of time.

16. We refuse leave in respect of grounds 1, 3 and 4. Our reasons briefly are as follows.

Ground 1

17. The judge was entitled, in the exercise of his discretion, to refuse the defence application that OP be called to give live evidence at the application to dismiss. The exercise by the judge of his discretion was not perverse or open to attack on other grounds. Further, in the light of all the material before him, the judge was justified in refusing to dismiss the prosecution case.

Ground 3

18. The judge was, in our opinion, entitled on the material before him, to conclude that QR was “not desirous of telling the truth to the court at the instance of the Crownâ€. As the single judge pointed out, the difference between QR’s evidence, summarised at 3 B to E of the ruling (transcript volume IV), and the material parts of his statement was considerable. The judge’s directions to the jury in this connection at volume IX, page 95 F and following, were adequate and appropriate.

Ground 4

19. In our opinion, the judge was justified in refusing to accede to a submission of no case at (a) the conclusion of the indictment evidence, and (b) the conclusion of the prosecution case, broadly for the reasons which he gave.

20. In the result, the appellant has leave to argue the two grounds to which we have referred, which replace the earlier grounds 2, 5, 6, 7 and 8. Leave is refused in respect of grounds 1, 3 and 4.

21. LORD JUSTICE HOOPER: Just going back to your grounds of appeal, are you objecting to the conviction for rape or of the evidence relating to the conviction for rape?

22. MR HODIVALA: Both, because it would be an argument that the single conviction for rape in 1988 did not amount to a propensity.

23. LORD JUSTICE HOOPER: Thank you. Make that clear, will you, when you do your skeleton argument?

24. MR HODIVALA: Yes, indeed.

25. LORD JUSTICE HOOPER: Make it clear you are complaining about, first, the fact that the evidence was called rather than just the conviction, and secondly, in any event, the conviction.

26. MR HODIVALA: Yes. Thank you very much.

27. LORD JUSTICE HOOPER: I think it would be helpful if you did a new skeleton argument which superseded everything you have done before, all your grounds of appeal. Essentially, cut and paste from what you have done before. Will you make it clear on the front that this is the only skeleton argument, and the others are to be discarded or tell the Registrar accordingly?

28. MR HODIVALA: Yes.

29. LORD JUSTICE HOOPER: As we have said, one day for the hearing. The court should have one day for reading. Can you do your skeleton argument in 14 days or 28?

30. MR HODIVALA: I have a heavy case load at the moment.

31. LORD JUSTICE HOOPER: Tell us how long.

32. MR HODIVALA: The early part of the New Year would be very much appreciated.

33. SIR PETER CRESSWELL: January 12th?

34. MR HODIVALA: I am grateful.

35. LORD JUSTICE HOOPER: If you can liaise with the Crown so we have a joint bundle.

36. MR HODIVALA: Certainly, I will liaise with the Crown.

For a summary of O’Dowd court cases and newspaper articles see  2017 Apr 1 Cathy Fox Blog Kenneth Kevin O’Dowd and the Ted Heath Photos [3]

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
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4 Responses to [O’Dowd3] Kevin Kenneth O’Dowd 28th November 2008 Court of Appeal

  1. Pingback: Kenneth Kevin O’Dowd and the Ted Heath Photos | cathy fox blog on child abuse

  2. Pingback: An Index and Timeline of Court and Court of Appeal Documents on Cathy Fox Blog | cathy fox blog on child abuse

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