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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bryan v R.  EWCA Crim 2291 (10 November 2009)
Cite as:  EWCA Crim 2291
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE INNER LONDON CROWN COURT
His Honour Judge Smith QC
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OPENSHAW
SIR GEOFFREY GRIGSON
| Omar Bryan
|- and -
Miss J Knight (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 13 October 2009
Crown Copyright ©
Lord Justice Moses :
"It would significantly undermine the defendant's account and assist ours if we can show that there were no calls made by the complainant to his phone."
We might add that the records would significantly have supported the defendant's account and undermined the prosecution if there was evidence that the complainant had a number stored on her mobile under the name of Omar which, it later emerged, was the mobile telephone number of the defendant's friend, Ricardo Johnson, 'Ricky'.
"During this particular day you were at school; do you know what time you left school on 1st February? I know it was early".
The complainant answered that she did not know what time she had left and that the times were not necessarily accurate. That there was no direct question as to whether she was at school that particular day has turned out to be unfortunate for reasons to which we shall turn later. Prosecuting counsel then asked whether she had phoned any boy or taken a telephone number from any boy on the day that she alleged she had been raped. The complainant said no. She was then reminded that she had agreed that her father had found a boy's number on her mobile and counsel asked whether she remembered the boy's name. She replied: "It was Omar". The answer must have come as a surprise to prosecuting counsel who told the Commission that she did not know what the complainant's answers would be. The matter was then probed.
"He was just asking me who did I speak to on that day, or what boys do I talk to or something and he start looking through my phone and calling different numbers."
Judge: "Which day are you talking about when you say who I was speaking to that day which day was he referring to?"
Answer: "The day when the incident happened."
"The evidence that [L] came to give in her evidence before you in her cross-examination and re-examination about the name Omar being on her mobile phone diary, the defence submit that the evidence of L that emerged in the evidence before you, that she had a boy's name, Omar, on her phone, strongly undermines her evidence that she was raped by Omar Bryan on 1st February 2005. The submission is being made to you 'look, she has the name of the chap on her mobile diary, her mobile phone diary. That indicates that she is a downright liar.' The Crown say that you should accept her explanation about this piece of evidence. So those are the rival submissions about that."
"Now it was the defendant's evidence - - and members of the jury it does depend entirely on his word alone - - that his friend, probably Ricky, although it was not quite clear, had received a call from dad, wanting to speak to him, Omar Bryan, because something had happened to his daughter, but the defendant said he did not speak to that person. But, you see, that piece of evidence, that call apparently made by L's father was actually one that got through to the defendant's friend, that is entirely based on the defendant's account. There is no independent evidence at all, other than the defendant's own account, that that is what took place."
"The jury must have known that the basis for that (from the defence point of view) useful line of questioning came from the dock."  EWCA Crim 63 paragraph 19
"As to timing, the Crown suggested alternative explanations, and alternative explanations for the provision of Omar's telephone number. Youngsters mix, word gets round. Perhaps information had passed by that or other means. It was before the jury from the applicant's own mouth that he had seen L a few times post alleged offence." (19)
"What is important in the submission of the Crown is that all these matters were squarely in front of the jury in detail and everyone clearly and unimpeachably reviewed in a summing-up of which there is no criticism. True it is that some investigation was made of the existence of closed circuit television footage, but, nothing such as could assist either party the matter went no further (sic). That is not sufficient to lay the groundwork for a criticism that the police were negligent or even lackadaisical in their investigation of the case."
Had the court been aware of the evidence subsequently obtained by the Commission it is unlikely it would have rejected the defence criticism of the investigation.
"After Omar had returned the phone I received some calls intended for him. One was from a man asking for Omar, who wasn't there. The man said he wanted to speak to Omar about his daughter. I said Omar wasn't there. The man didn't give his name or his daughter's name. He said he would call back and he did about a day later. On this occasion Omar was there and I handed the phone to Omar. I knew it was the same man as the day before. I didn't hear any of the conversation and don't know how long it lasted."
"She said she believed her friends were giving out her telephone number. [Her mother] showed me a number recorded on her mobile phone. I dialled that number either on her phone or my own. A woman answered. She had a very strong Jamaican accent. I said 'this number keeps phoning my daughter's phone and she doesn't know who is calling, I want to know who is calling her'. The woman said it could be any of her boys. Then she called out 'Omi'. I told her my daughter had had her phone confiscated because of these calls.
I have been asked when this call took place, and I am sure it took place before the rape, several months earlier in late 2004.
I know that the name Omar is often pronounced 'Omi' in Jamaican patois.
When I got to the trial I saw the defendant's name on the board. When I saw the name Omar I remembered the incident of the phone call. I attended the trial but did not hear all of the case. I cannot remember L being asked about a phone call I had made. But I do remember someone asking me about the phone call outside the courtroom. This person was saying the defendant had spoken to L's dad. I replied I'd never spoken to Omar, I'd only spoken to his mother."
"If the court is minded to receive fresh evidence then the respondent's view as to what form the evidence should take is as follows. Statements taken from Lincoln Campbell and Ricardo Johnson by the CCRC could probably be read by the court. They add little to the evidence at the original trial and the respondent would not require these witnesses to be called." (paragraph 9, our emphasis)
"If the number – or one of the numbers – [the father] telephoned was Ricky's, it follows that L had spoken to the person who gave her Ricky's telephone number on the day of the rape. According to Mr Bryan's account at trial, that person was him. His claim of a call received by his friend, now corroborated by Ricky, has to be assessed in this context."