Notable Cases ~ The “Mr Kaz Appeal”
Evidence accepted by the Court of Appeal despite it not being “fresh”.
Neutral Citation Number:  EWCA Crim 3239 ~ No: 2007/0558/C3
R v PE: 6th November 2008
I was contacted some time early in 2006 by PAFAA member “Kaz”. Her partner had recently been convicted on one count of indecent assault on a 12 Count Indictment. He had been found NG on another IA charge (same complainant) and NG on the 10 far more serious charges on allegations made by her older sister.
Prior to the trial the main complainant (on whom he was found NG) had falsely alleged that he had approached her in the street while he was supposed to have been driving a white van, allegedly drew his finger across his throat and said “today you die”.
On those words alone he was remanded into custody. Sometime after that when it came to the hearing at magistrates court on that particular [false] allegation he was freed, due to the fact that he attended court with no less than six witnesses who gave a solid alibi witness testimony.
However, while on remand he was visited by trial solicitor and counsel. He was asked “why would the two girls lie about sexual abuse?”
His answer was: “It’s a vendetta. I have papers to show you”.
At trial that defence was not run. The only defence that was run was: “I didn’t do it and I don’t know why they are lying”.
The vendetta and papers he referred to was this: he had had a relationship with the mother of the two girls, and this produced a son. Like many of these cases, the allegations were made after he wanted more input into his son’s life. She wanted him out of their son’s life – this was the “vendetta” he had referred to.
The “papers” he referred to was the paperwork I found in the family court bundle I had asked “Kaz” to send to me, along with the trial papers.
Part of this paperwork included an Affidavit signed by the mother of the complainants (who is also the mother of his young son).
Two weeks before the mother signed that Affidavit, (alleging domestic violence, alcohol and drug abuse only), she claimed to have found a note on the bedroom window sill, written by her elder daughter, the contents of which would have been pretty horrific, had they been true. These included [alleged] rapes at knifepoint in the home, rapes while the family were in a holiday camp and numerous indecent and physical assaults.
The Affidavit was signed at her family law solicitor’s office, and related to a Prohibited Steps Order to protect her (their) son, in order to remove the father’s (defendant’s) rights to any further contact with their son.
On “finding” the note while “dusting” did she alert Social Services and the police? No.
She merely put the note back down where she (allegedly) found it. Days later she goes back into that complainant’s bedroom to “bleed the radiators” and supposedly found the note “scrumpled up” in the waste basket.
Does she alert SS and the police? No.
Instead, she claimed that she took it to the family law solicitor’s office. Did the solicitor call the police and/or SS? No.
To all intents and purposes it seemed that the family law solicitor failed to mention these alleged rapes [at knifepoint in the family home, on holiday, the alleged indecent assaults etc etc] in the affidavit. That is of course, because there had been no note written at that time so therefore she wasn’t aware of it and therefore cannot have been shown it.
I believed that here was a ground with which to appeal the conviction: if the jury had seen that the mother had failed to notice (hardly likely) when she signed the Affidavit, that the note she had supposedly given to the family law solicitor and its contents was not mentioned, then the jury is likely to have wondered about the credibility of the rest of her evidence.
It is hardly likely that a fully qualified family law solicitor (who is preparing a Prohibited Steps Application to the Family Courts to prevent some sort of monster having access to his young son) would then neglect to mention “rapes at knifepoint”, etc etc, in that child protection Application. It is also astonishing that the mother of the young girl making these really serious allegations would not notice their omission while reading through her affidavit before signing it.
How on earth could that happen? Probably because the mother had not at that point thought up the rape allegations. The evidence of the “disclosure note” must have been manufactured after the prohibited steps application failed.
I tried several solicitors with this ground; the answer was the same every time: “This is not fresh evidence and should have been used at the trial. It won’t be accepted by the Court of Appeal now”.
Not one to give up, I contacted a solicitor in London who had been recommended to me by another prison inmate. I emailed him to ask for advice. We could not get legal aid as the SJ (Single Judge) had refused leave to appeal. The solicitor sent out a message to barristers Chambers he sometimes used. Eventually one came back to me. She could not do it pro bono but agreed to do the case for as little as possible. £1,000. The family scraped together £600 and I lent them the remaining £400.
We attended a “renewed grounds” hearing early in 2008 but this turned into a directions hearing. The judges there allowed us the transcripts of the evidence of the two complainants. The barrister obviously had to read and consider the extra material we had been allowed, and the family managed to scrape together that extra £500.
Months later we went back to the CA (Court of Appeal) and we had two judges – not three – and they could not decide so referred us back to the full court.
On the 8th November 2008 we went back to the RCJ and won! We were astonished given the battle we had already faced. Our man had to suffer the indignity of an IQ test to prove that he was not intelligent enough to instruct counsel (to use that really important evidence in the family court bundle).
The family law solicitor answered the query from CA as to why she did not use the “scrumpled up” disclosure note in the Affidavit. She said she could not remember seeing one. That’s because she hadn’t, of course.
Trial counsel had been asked by CA why she did not use that evidence. She wrote to the CA rather than appear in person, saying that “the client explicitly instructed me not to use that evidence as the violence and the drugs/alcohol would then have been before the jury”. This was a complete and utter lie. The evidence of the alleged violence and drugs/alcohol was already before the jury in any event.
Sometime after the appeal succeeded we contacted another solicitor who assisted us with a case against trial counsel, and eventually our man was awarded £23,000 in compensation. It would have been more had he been able to produce employment pay slips for the time lost while he was in prison.
Obviously he and his new family would have much preferred for the false allegations never to have been made, and that he had never spent time in prison. However the money assisted in him going on job- -related courses and other useful items/projects.
As a side note, when “Kaz” applied for a job as a dinner lady, she discovered that the allegations against her partner, the one conviction and the quashed conviction appeared on her ECRB check. She attempted to have it removed by contacting the Chief Constable in their area and this application was refused.
Although they got their “justice” of sorts, there is still a sting in the tail for partner “Kaz”.