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John R, R v. [2000] EWCA Crim 41 (25th May, 2000)
Case No: 99/05451/W5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TRURO
(HIS HONOUR JUDGE RUCKER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 25th May 2000
B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE ALLIOTT
and
MR JUSTICE HENRIQUES
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REGINA
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and -
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David
John R
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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R Macrae Esq (instructed for the Appellant)
M Brabin Esq (instructed for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE HENRIQUES:
1. This is the judgment of the Court. David John R. appeals against
convictions for indecent assault, committing gross indecency with a child and
two offences of rape having been convicted on the 4th of August 1999
at the Truro Crown Court (H.H. Judge Rucker) and sentenced to a total of 10
years imprisonment. The appropriate order was made under the Sexual Offences
Act 1997.
2. The victim of each offence was the appellants step daughter T.B, who was
born on the sixth of February 1979. It was alleged that between 5th
February 1991 and the 7th of February 1994 when the complainant was
aged between 12 and 14 the appellant indecently assaulted her (count one)
committed an act of gross indecency (count two) and raped her (counts three and
four). Count 2 was a specimen charge.
3. The offences came to light following a family row in March 1999 when the
complainant was 20 years of age. The appellant was arrested and interviewed on
the 8th of March 1999 when he denied the allegations his defence being that of
total denial. Immediately thereafter his home was searched and a document was
recovered which had been typed on the appellants word processor in April 1998,
over four years after the alleged misconduct. The document was `filed' under
the heading `a sex sheet to piss J right off'. J referred to his wife, T's
mother. The document was referred to during the trial as a sex poem for ease
of reference but contained few if any of the characteristics commonly
associated with poetry. It is some 22 lines long and begins by repeating the
word Sex seven times followed by
`... teenage girls are where its at panties off off off off yes they're off
this is it spread their legs legs legs apart creamy thighs so soft soft soft
young pussy so wet wet wet wet wet and so young too young I am so hard so hard
it hurts throbbing in anticipation Fuck them hard ... lick them lick them till
they come ... make them cry cry cry ... for more more more so tight so tight it
hurts but nice nice nice God I'm bad bad I love them need them dream them so
bad God help me but I cant help myself I am consumed with lust it eats me burns
me terrifies me I am on fire. If only you knew you would run for your life for
my life for life itself no mercy for the innocent no mercy none die laughing
die laughing out loud. SATISFIED'.
4. This appeal turns upon the trial Judge's decision to admit that document in
evidence as part of the Crowns case at the very commencement of the trial.
5. In deciding to admit the document in evidence Judge Rucker said at P12
B:
`looking at the broader principle enunciated by the Lord Chancellor in the case
of P it seems to me under the present circumstances of this case, it would be
an affront to common sense if the jury are to be asked to decide whether
anything took place giving rise to this indictment and then be deprived of the
defendant's fantasies in writing about teenage girls.
`There are three particular parts of [Ex 3.] that make it compelling enough to
admit. It is certainly about teenage girls, but on the fifth line it says,
`Not just so young but too young'. It then goes on to describe an admittedly
common enough sexual practice, that of cunnilingus, but there it is. It is in
there. Right at the end the writer talks of `No Mercy for the innocent, no
mercy! I think that is capable of helping the jury. The Defendant may offer
an explanation for it, but putting it up against what it is anticipated T will
say if she goes into the witness box, I think the prosecution can rightly claim
that the jury should consider this evidence'.
6. Finally by way of insight into the learned judge's decision just before
Counsels' speeches to the Jury, Judge Rucker said:
"My reason for admitting that was simply because T cannot have known about
this, and that was accepted; and does it not in a number of significant
respects, reflect in an uncanny way what T says happened all those years
before? Is it a glimpse into this man's soul, into his true sexual interests.
In that way does it not confirm that something did take place. I shall then go
on to deal with what the defence will no doubt say about it, that he has
proffered an explanation. It was years after the events, and had nothing to do
with anybody except his wife.
MR BRABIN: [Prosecuting Counsel] Your Honour, I must admit, I had not proposed
to say that, simply because ...... and I did not do so when I opened the case -
simply because it seemed to me that it was getting precariously near the
question of proclivity".
7. Mr Macrae on behalf of the Appellant argues that for the very reason that
was identified by his opponent namely because the document did no more than
introduce into evidence the appellant's propensity or proclivity for the type
of conduct complained of, it should not have been admitted in to evidence.
8. Mr Macrae relied in support of his submission upon three authorities of
this Court all post-Boardman namely:
1) R v Lewis [1983] 76 Cr App R 33. In that case the trial judge
admitted evidence that the Defendant had in his possession, documents,
magazines, letters and posters obtained from the Paedophile Society. The
Defendant was convicted of offences of indecent assault involving the 10 year
old twin daughters of his cohabitee. The judgment given by Donaldson LJ (as he
then was) indicated that evidence which could lead a jury to conclude that the
defendant was likely or more likely to have committed the offences for which he
was being tried may be adduced to rebut a defence of accident or innocent
association but where the defence to the charge was a complete denial that
events had occurred the incriminating material was not admissible.
2) R v Wright [1990] 90 Cr App R. The appellant, a headmaster had in
his study a booklet `The incognito guide to Paris' a document aimed at males
with homosexual leanings, and in a house a grossly obscene video tape
consisting of displays of buggery between two or more adult males. The
appellant faced charges of buggery and gross indecency and during his trial the
trial judge admitted in evidence the `incognito guide' on the grounds that its
probative value outweighed its prejudicial effect. During the Crown case he
excluded the video but in due course allowed the appellant to be cross examined
under s.1(f)(ii) of the Criminal Evidence Act 1898, the appellant having
presented himself as a person of good character. Mustill LJ (as he then was),
read the judgment and at page 331:
`One must begin by asking whether in a case where the issue is whether the act
alleged by the complainant ever took place at all, evidence is admissible that
the defendant had done similar acts in the past or could be shown through
possession of incriminating articles or otherwise, to have a leaning towards
such acts.
`It is not hard to imagine legal systems in which such evidence would not only
be admissible, but would be regarded as having high probative value.
Nevertheless, this has never been the policy of the English criminal laws, not
so much on the grounds of logic, but because it is considered that to entrust
it to a jury would be too great a risk .... The principle is subject to
exceptions as Lord Herschell acknowledged in Makin v Attorney General for
New South Wales [1894] AC 57. Thus if a person accused of indecently
touching a child admits the contact but asserts that it was accidental,
evidence of previous similar acts may be admitted because it is relevant to the
issue of accident or design. ... See Gale (1987) (unreported) where a
defendant who had taken indecent photographs of his young step daughter claimed
that he had done so for artistic purposes at the instigation of his wife, and
where it was held to have been proper to admit evidence that he had written
pornographic fantasies to describe, in a manner which bore a close resemblance
to the very type of incident which the girl had herself described, the sexual
initiation of a young girl by her father .... Although these exceptions are
well established it is also quite clear that they are not brought into play
through a denial that the acts in question ever happened at all'.
3) B(RA) [1997] 2 Cr App R 88. The appellant was charged with
indecently assaulting his two grandsons. His defence was a complete denial of
any indecency. He claimed that the boys had been put up by their mother to
make the allegations. At trial the judge admitted evidence of homosexual
magazines found in the appellants possession. Rose LJ giving the judgment of
the Court in following Wright and Lewis:
`Here it cannot be said that the Appellant raised any defences of the types we
have mentioned. ... The authorities show that this is not permissible ground
for admitting the evidence'. (page 91F)
9. Judge Rucker was invited to rule upon the admissibility of exhibit 3 at the
very outset of the trial. He could of course have delayed his decision. A
number of events during the trial might have caused exhibit 3 to become
admissible as an exception to the general rule in criminal proceedings that
evidence of the accused's bad character or criminal propensity is generally
excluded. If the cross examination of the complainant involved an imputation
upon her character within the ambit of s. 1(f)(ii) of the Criminal Evidence Act
1898, or if the appellant claimed during this trial to be of good character or
to have no interest in young girls the exhibit would become admissible.
Likewise if the appellant had claimed an innocent explanation for his alleged
misconduct or that what occurred was an accident. And the prosecution may
anticipate defences, with the important qualification in Thompson -v- The
King [1918] AC 221, where Lord Sumner observed at p232:
"The prosecution cannot credit the accused with fancy defences in order to
rebut them at the outset with some damning piece of prejudice."
10. Whilst there were a number of potential ways in which exhibit 3
might have become admissible Judge Rucker chose to admit the document ab
initio notwithstanding the fact that it was made clear to him that the defence
was that of simple denial.
11. The appellants case can be stated very shortly. Exhibit 3 was
inadmissible since it established no more than the appellants propensity for
the conduct complained of and the decisions in Lewis, Wright, and
B(RA) were compelling in favour of exclusion. For the Crown, Mr Brabin
in his skeleton argument supplemented by argument raised five principal
arguments:
12. The document can be construed as an admission of Counts 2, 3 and 4.
13. The document admits relevant similar facts.
14. The document is admissible on the basis of relevance since it explains why
the appellants attention to the complainant stopped when her periods
commenced.
15. It is capable of rebutting the Defendant's assertion that the complainant
had recently invented the allegation.
16. The cases of Lewis, Wright, and B(RA) were wrongly
decided.
17. We deal with those contentions:
1) Whilst exhibit 3 contains statements by the appellant adverse to the
appellant we are quite unable to relate anything contained in exhibit 3 with
the specific allegations contained in the indictment. There is no reference to
the complainant in exhibit 3 and the document itself was created in April 1998
whereas the last date in the indictment is February 1994. We are simply unable
to make a proper connection between exhibit 3 and the indictment.
2) We have considered whether exhibit 3 proves any fact other than the fact
that the applicant typed into his computer the information or words which
comprise the document. We cannot properly infer that the applicant has behaved
in any way consistent with the language in the document. To do so would be
pure speculation. He must of course have had the thoughts giving rise to the
words and to that extent it would be a proper inference to draw (and we do so)
that the applicant has a propensity or sexual proclivity for pre pubescent
girls. It is not possible however to properly infer that his thoughts have
ever been translated into criminal misconduct.
3) The complainant's evidence was to the effect that the appellant ceased to
show her attention when she began her periods. The document refers to teenage
girls and later `so young too young'. In our judgment Exhibit 3 goes no
further than demonstrate the appellant's propensity for young teenage girls.
To admit the document to explain a discontinuation of attention is hardly
probative of guilt and would not justify admitting the evidence.
4) We are unable to see that the document could be properly admitted to rebut
the appellant's contention in interview that the complainant had recently
invented her allegations. Such a contention by the appellant in interview was
no more than a denial of guilt. Mr Brabin puts it this way:
"It is a remarkable and most unlikely coincidence that the complainant should
make a complaint in March 1999 completely unaware of the contents of her step
father's computer since she was not living at home and could not know of the
contents of the computer and yet 11 months earlier her step father the
appellant had created exhibit 3. It would thus be an affront to common sense
to explain it on the basis of coincidence"
Such argument can always be raised when a person against whom a complaint has
been made is found to be in possession of incriminating articles manifesting a
propensity for the type of conduct complained of.
5) The decision in Lewis has been heavily criticised by academics namely
by T.R.S. Allen, lecturer in Law at Nottingham University at 99 LQR 348, by the
Editors of Phipson (15th Edition) p373 and by P.B. Carter Fellow of
Wadham College, Oxford at 48 MLR 37. Since we propose to base our judgment
upon the tests formulated in Boardman and D.P.P. -v- P it is not
necessary to evaluate the criticism of the academics. Similarly Mr Brabin
points out that the decisions in Wright and B(RA) were based upon
Lord Herschell's well known dicta in Makin v Attorney General for New South
Wales [1894] AC 57 rather than upon the speeches in Boardman.
Since we are to adopt the reasoning in Boardman and D.P.P. -v- P
we do not seek to evaluate or indeed criticise the decision in Wright or
B(RA).
18. What then should be the test to be applied in determining the
admissibility of Exhibit 3. We have been greatly assisted by the judgment of
Steyn LJ as he then was in R -v- Clarke [1995] 2 Cr App R 425. In that
case the appellant was alleged to have robbed a bank in April and he was
stopped in a car two months later which contained a complete robbers kit.
Should this evidence have been placed before the jury? Steyn LJ said this
(page 433C):
`The principle is that if such evidence is tendered solely to establish
propensity to commit a crime, it is not admissible'.
`There are dicta to the effect that evidence of the commission of other crimes
and bad character is logically irrelevant. That seems to be an odd way of
putting the matter, because in the same way as good character can be relevant
to innocence, bad character can be relevant to the question of guilt. The real
reason is not absence of relevance. We think it is right that we demystify
this corner of the law. The evidence of propensity is excluded as a matter of
law because it is regarded as unfair if it is adduced solely for the purpose of
proving propensity. Or the matter can be put differently: as a matter of
policy the Court regards evidence tendered solely for that purpose as
insufficiently relevant to permit its reception.
The important point that conveyed in the case of Boardman is that three
of the Law Lords Lord Wilberforce, Lord Cross and Lord Morris emphasised that
whether similar fact evidence was admissible or not depended simply and solely
on its probative strength, and whether it had sufficient strength was in each
case a matter of degree'.
19. We must of course have regard to Lord Mackay's dicta in D.P.P. -v- P
[1991] 93 Cr App R 267 in which he said:
`From all that was said by the House in Boardman -v- D.P.P. I would
deduce the essential feature of evidence which is to be admitted is that the
probative force in support of the allegation that an accused person committed a
crime is sufficiently great to make it just to admit the evidence,
notwithstanding that it is prejudicial to the accused in tending to show that
he was guilty of another crime'.
And later:
`Once the principle is recognised, that what has to be assessed is the
probative force of the evidence in question, the infinite variety of
circumstances in which the question arises, demonstrates that there is no
single manner in which this can be achieved. Whether the evidence has
sufficient probative value to outweigh its prejudicial affect must in each case
be a question of degree'.
20. In writing immediately post-Boardman at Vol 91 LQR p 198 L H
Hoffmann (as he then was) accurately predicted that one further excursion to
the House of Lords would be necessary before the law of similar fact would be
established on a simple and rational basis. He wrote then:
`Now that Boardman has demonstrated that the admissibility of similar
fact evidence depends solely upon its relevance, it can be seen that excluded
similar fact evidence is indeed irrelevant, and irrelevant because it is not
sufficiently relevant ....
The balancing process which the court must perform is the same as in any other
case, civil or criminal in which it is required to decide whether evidence is
sufficiently relevant to be admissible. Boardman has therefore done more than
clarify what might be called the special theory of similar fact evidence. It
has shown the whole subject can be accommodated within the general theory of
relevance'.
21. We would accordingly deduce that the following propositions summarise the
existing state of the law:
1) Where evidence is tendered solely to establish propensity to commit a crime
it is not admissible.
2) Where the evidence achieves or is capable of achieving more ie repetitive
situations or highly unlikely coincidences then it becomes relevant and
admissible.
3) There is a balancing exercise required of the Judge - is the probative force
in support of the allegation sufficiently great to make it just to admit the
evidence?
22. In our judgment the document Exhibit 3 does no more than establish the
appellant's propensity to commit the crime alleged. Had there been detail
within the document sufficient to create a link with the complainant's evidence
then a contrary view would have prevailed. Similarly if the document had been
created sufficiently proximate in time to the acts complained of, we may have
found the necessary probative strength to admit this evidence. As it is we are
satisfied that it went to propensity only and should not have been admitted as
evidence. Accordingly this appeal is allowed. The conviction is quashed.
© 2000 Crown Copyright
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