It’s not just Galbraith.

While making submissions at half time becomes an increasingly rarer exercise, certainly for this practitioner, when the chance arises it must be seized with both hands. We are all familiar with R v Galbraith [1981] 1 WLR 1039, (1981) 73 CrAppR 124 (CA) which remains the standard test but a potent ancillary weapon – certainly in cases focused on circumstantial evidence – is R v Goddard (G) & Fallick (F) [2012] EWCA Crim 176.

This case concerned a conspiracy to rape a child under 13. The prosecution case was that a series of text messages sent between the appellants was evidence of an agreement to rape a young boy. In addition, the prosecution exhibited texts sent by G to others showing an interest in raping young boys. The Crown also relied upon the convictions of the appellants possessing indecent photographs of children as evidence showing (1) a keen sexual interest in young boys and (2) a willingness to break the law. Further, in F’s messages there was reference to a specific boy, identified by the police as being the son of a friend of F.  This, the Crown claimed, showed that there was a plan in existence rather than a mere fantasy.

The defence case was that there was no agreement to rape a child and that the texting was fantasy from which each appellant gained sexual gratification. The appellants relied on the fact that they had never met and that between the texting on 15 September 2006 and their arrests in 2009 nothing at all had ever happened.

At the Court of Appeal – Lord Justice Aikens, Mr Justice Sweeney, Mr Justice Supperstone – it was accepted for the purposes of the submission of no case that there was evidence of an agreement to rape such that a jury, property directed, could so find. At the close of the Crown’s case, the key issue for the judge therefore was whether there was sufficient evidence that a jury properly directed could infer that there was an intent on the part of each of the defendants at the time the agreement was concluded, to carry out that agreement.

After considering the cases of R v Hedgecock, Dyer and Mayers [2007] EWCA Crim 3486 and the judgment of Laws LJ who referred to Lord Diplock in Kwan Ping Bong v R [1979] AC 609 and the statements of Moses LJ in R v Jabber [2006] EWCA Crim 294, this powerful Court summarised the position as follows:

“(1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the “classic” or “traditional” test set out by Lord Lane CJ in Galbraith,(2) where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence (3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury.”

In R v Goddard and Fallick the vital question was distilled to this – whether a reasonable jury could be entitled to infer on one possible view of the prosecution evidence, that it was sure that each of the defendants intended to carry out the rape. As the evidence was equivocal – as consistent with fantasy as with an intent to carry out the plan – no reasonable jury properly directed could reach that conclusion.

In considering this authority the reader will want to re visit R v Darnell [2006] EWCA 628 and remember that if the defence simply advances a fanciful proposition that will not be sufficient to stop the case at the close of the prosecution. 

Nonetheless, R v Goddard and Fallick provides a clear example of the dictum in McGreevy v DPP [1973] 1 WLR 276- Steyn LJ:

“if the proved facts do not exclude all other reasonable inferences then there must be a doubt whether the inference sought to be drawn is correct”.

Conclusion

In submissions where it is accepted that we are in second limb territory and asking the court to interpret circumstantial evidence, R v Goddard and Fallick allows the defence to submit that for a case to go beyond half time a reasonable jury properly directed must be able to reject all realistic possibilities consistent with innocence.