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Cite as: [2000] EWCA Crim 19

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S C v. R [2000] EWCA Crim 19 (18th February, 2000)

Case No: 99/0066 Z2

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 18 February 2000

B e f o r e:
LORD JUSTICE EVANS
LORD JUSTICE SCOTT BAKER
and
HIS HONOUR JUDGE GRIGSON
(Sitting as a Judge of the Court of Appeal Criminal Division)

	S C	Appellant
	- and -
	REGINA	Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
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Judgment
As Approved by the Court
Crown Copyright ©
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LORD JUSTICE EVANS:
On 20 November 1998 S C, who is now aged 34, was convicted of five counts of rape and two counts of indecency with a child, after trial in the Crown Court at Canterbury before H.H.J. Langdon and a jury. He was sentenced to 12 years' imprisonment concurrent on each count of rape and to four months' imprisonment, also concurrent, on each of the other charges. He appeals against conviction and sentence by leave of the Full Court, after refusal by the Single Judge. The appellant met and married a lady named So in about 1990. She already had two children. These were Y, born on 28 September 1987, and M, born on 5 March 1989. They later had two children of their own, a son L born on 24 January 1991 and Sa born on 8 April 1992.
By January 1998 the marriage had deteriorated. A particular reason was that the wife became a Jehovah's Witness and was closely involved with that sect. The appellant decided not to become a member and she was displeased. A second reason, we can infer, was the appellant's drinking habits, which meant that sometimes he returned home drunk. One such occasion was 5 January 1998. The appellant went upstairs to bed. His wife gave evidence that she was downstairs when the younger boy, L, came downstairs with no clothes on and she saw that he had an erect penis. She said that she went upstairs to the bedroom and found the appellant there with the older boy, M, in circumstances which led to the two charges of indecency with a child. She put both children to bed, but later she woke up M and asked him what had happened. There was a conversation between them.
This matter was reported to the police and the appellant was arrested. All four children were video interviewed. M made his allegations against the defendant with regard to what had happened on that single occasion on 5 January 1998. Y, who was then aged 10½, said that the appellant had sexually abused her on about a dozen occasions when she was between 5½ years old (1993) and when she was 9. The last of these incidents, she said, was about one year previously. She had not made any previous complaint. Her allegations led to the five charges of rape.
The defence was that there was no truth in any of these allegations. The children had invented them, the appellant said, and he alleged that each had done so in collusion with their mother. Although Y's interview revealed that she knew about M's separate complaints, the appellant did not suggest that the two children had colluded together. Their stories were linked, he said, by their mother's involvement with both of them. One reason why they had done this, he suggested, was because they wished to have contact with their natural father, as well as disliking him, the appellant.
The grounds of appeal against conviction are (1) that the judge was wrong to refuse to order separate trials of the charges of rape, which were founded on the complaint made by Y, and of the indecency charges brought as a result of M's allegations ; and (2) that the judge was wrong to admit in evidence part of the conversation between M and his mother, which the judge held was admissible as a `recent complaint' by M, though he excluded other parts of the conversation.
Separate trials
No application for separate trials was made at the Pleas and Directions Hearing. Miss Williams, who made the application on the first day of the trial, was instructed at that earlier stage also. She says that she did not appreciate then that the application should be made, and she accepts responsibility for her oversight. The application she did make on 16 November 1998 was refused. The judge observed that the application was made "at the start of the trial, almost without warning" and that this was particularly unfortunate in what he described as a "difficult area of the law". Nevertheless, he directed himself correctly that the first consideration was that the trial should be fair both for the defendant and for the Prosecution. He recorded that the Prosecution accepted that the evidence of the indecency counts was quite distinct from the evidence of the charges of rape, and that it would be necessary for him to direct the jury to look at each of the charges separately. He gave his reasons for refusing the application as follows :-
"It seems to me, that having read the papers in this case before coming into Court, that this is exactly the sort of allegation of sexual impropriety in a family involving those children of that family when it can only be sensibly sorted out by all matters being heard by the same jury and tried by the same jury on the facts of this case, notwithstanding an allegation by the defence that the mother may have colluded or arranged for the children to collude with one another to support a lying account."
Miss Williams' submission that this ruling was wrong faces the formidable obstacle that the trial judge has a discretion to refuse to order separate trials, even where separate charges are brought, based on the evidence of different complainants, even where the evidence in support of the one charge is inadmissible in support of the other, and even where the two complainants are children and members of the defendant's family. This was held by the House of Lords in Reg. v. Christou [1997] A.C. 117. An important, but not the only consideration is whether "directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together" (per Lord Taylor of Gosforth at 129E). Miss Williams therefore does not rely on the fact that the rape and the indecency counts were wholly separate, but rather upon a particular feature of the present case. "It was submitted that in this particular case there should be severance where the defence raised the question of collusion" (Advice on Appeal para.5). She contends that the judge was wrong to give no or insufficient weight to this factor, and to make only the passing reference to it which he did in the passage quoted above.
It seems to us that the suggestion that there should be separate trials of the rape and indecency charges in the present case was simply unrealistic. The defence in each case was that the complainant, whether M or Y, had invented the allegation either at the suggestion of or in collusion with their mother. The alleged collusion must have taken place at about the time of the incident involving M on 5 January 1998. Y's allegations were made within days thereafter. If the mother was cross-examined about her alleged collusion with the complainant in either case, particularly in the rape case, it would be inevitable that some reference would be made to the allegation made by the other child. The jury in each case would come to hear the full story, and the only basis for ordering separate trials would cease to exist. It could even be said that the defence case that Y had invented her allegations of rape was stronger if the jury could be told that she made no complaint until her mother reported the incident which led to the charges against M, which Y knew about.
We do not think, therefore, that the defence allegation of collusion necessarily meant that separate trials should be ordered and that the judge's ruling was wrong. It seems, if anything, to be a reason for holding that the ruling was correct.
Miss Williams developed her submission before us by reference to two earlier judgments of the House of Lords, the leading speech in both cases being delivered by Lord Mackay of Clashfern. The first was D.P.P v. P [1991] 2 A.C. 447. There, as she pointed out, the question of law with which the House of Lords was concerned expressly excluded the possibility of collusion :-
"Question 1. Where a father or step-father is charged with sexually abusing a young daughter of the family, is evidence that he also similarly abused other young children of the family admissible (assuming there to be no collusion) in support of such charge in the absence of any other `striking similarities'?
Figure 2. Where a defendant was charged with sexual offences against more than one child or young person, is it necessary in the absence of `striking similarities' for the charges to be tried separately?"
Unsurprisingly, in those circumstances, Miss Williams could find no reference to collusion in the speech of Lord Mackay. However, in R. v. H [1995] 2 A.C. 596 where the admissibility of similar fact evidence was considered in relation to a defence allegation of collusion between different complainants (including "not only deliberate but also unconscious influence of one witness by another" cf. R. v. Ryder [1994] 2 All E.R. 859 at 868, quoted at page 610E), Lord Mackay said this :-
".... I consider that evidence of collusion on the face of the documents may be an aspect of the decision whether or not to admit evidence as similar fact evidence in some circumstances and that there may be circumstances in which a Voire Dire might be necessary to determine whether evidence proffered as similar fact evidence should be admitted as such having regard to the circumstances pointing to collusion" (611A)
Miss Williams' submission to us, as we understand it, is that this passage is authority for her contention that where the defence alleges that the complainant has invented his or her evidence in collusion with another person, then that is a significant factor in support of an application for separate trials. She refers also to R. v. Musquera [1999] C.L.R. 857 and in particular the note by Professor Sir John Smith at page 858.
In our judgment, the submission is based on a misreading and misunderstanding of the authorities. They make it clear that the question of collusion is raised by the defence in order to exclude or to weaken the force of `similar facts' evidence which the prosecution is otherwise entitled to call and rely upon. This is no more and no less than common sense. Evidence by another complainant - that is to say, of another offence allegedly committed by the same defendant - becomes admissible in support of the prosecution case that the defendant committed the offence with which he is charged, when the DPP v. P requirement of a sufficient connection between the two alleged offences is satisfied. This gives the evidence its probative value. Lord Mackay expressed it thus in the later case of Reg. v. H. -
"The requirement then is for a particular relationship to exist between the allegation in issue and the allegations in the evidence sought to be adduced as similar fact evidence" (603G).
Of course, the evidence has no probative value whatsoever unless it is accepted by the jury, and the respective roles of judge and jury in deciding whether it is reliable i.e. credible evidence was the subject-matter of the judgments in Reg. v. H. One particular reason why it may not be credible is a suggestion of collusion between the two complainants. "Collusion" includes both a dishonest conspiracy, to manufacture one or both allegations, or the unconscious influence which one complainant's story may have on the other, leading to exaggeration and possibly even invention (Lord Mustill developed this thought at p.616D).
The probative value of `similar facts' evidence is the unlikelihood of the coincidence that two complainants would make similar allegations against the same person unless the allegations were true. This coincidence is greater if there has been no communication between them. It is weakened if there has been some communication, with the attendant risks of exaggeration and even invention ; and in an extreme case one of the allegations may have been fabricated in order to support the other, or both fabricated in order to support the other, or both fabricated in order to bring harm to the person charged with wrongdoing.
The relevant of collusion in a similar facts case was referred to by Lord Mackay in Reg. v. H -
"..... in some circumstances the probative force required for evidence to be similar fact evidence might be affected by circumstances such as collusion between the witnesses or other contamination of their evidence" (604E). (cf. Lord Mustill at 614H - the evidence ceases to be admissible when there is a real risk of collusion.)
Therefore, the reason for excluding the possibility of collusion from the question asked in DPP v. P (quoted above) was not, as Miss Williams seems to suggest, that if there was a defence of collusion the case for separate trials would be made out. Rather, the reverse. Assuming that complaints are made from two different sources, and that the evidence of one or both complainants is attacked on the ground of collusion between them, then the defence itself provides a link between the two cases which would not otherwise exist,. That example is close to the present case.
There is one difference, however, which is that the collusion alleged here is between each of the individual complainants and another person, their mother, rather than between the complainants themselves ("innocent infection" apart). This underlines the fact that collusion may be raised by the defence, not merely in order to attack the reliability of similar facts evidence given by another complainant, but against the complainant of the offence with which the defendant is charged. This can occur whenever the credibility of the complainant, even a sole complainant, is challenged on the basis that the evidence has been invented or exaggerated under the influence of another person.
When the defence is, not merely that the complainant has colluded with another person, but that that same person has also influenced a co-complainant to bring other charges against the defendant, then it seems to us that this can provide a proper basis for the two complaints to be tried together at the same trial. We put the matter in this way because the trial judge has to exercise his judicial discretion in deciding whether or not to order separate trials.
The fact that the evidence of one complainant is not admissible as `similar facts' evidence in support of the other charge does not prevent the charges from being heard together : Reg. v. Christou [1997] A.C. 117. Miss Williams does not contend that it does., She relied upon the collusion defence which is raised (and would be raised in any event at separate trials) against each of the complainants with their mother, and to a limited extent between the complainants themselves. For the reasons we have given, we do not consider that the judge's refusal to order separate trials was wrong because of this factor. It was referred to by the judge, who cannot be said not to have taken into account. We remain inclined to the view that it was a reason for, rather than against, the order which he made. We do not see that the appellant was prejudiced, either prospectively or in the result.
Recent complaint
The evidence which the judge allowed to be given by the prosecution witnesses was part, but not the whole, of the conversation between M and his mother when she woke him up later in the evening of 5 January 1998. The part which he ruled admissible consisted of the mother's question "I have got to know what daddy did" and M's reply "Daddy shook his willy. He showed me the seed, the stuff babies are made from". The judge held :-
"That is admissible as a recent complaint demonstrating the consistency of this young man's complaint. So I will admit that."
The judge acknowledged, however, that there were other complaints which in the event M did not repeat in his evidence in interview before the trial. The judge said that that "was something that goes to his credibility. It seems to me it's a matter for the defence whether they want to explore that area." Miss Williams makes two submissions. First, that an essential element of a complaint which is admissible in evidence as such is that it is made spontaneously. This remark was not, spontaneous, she submits, because it was prompted by a question from the mother. We doubt whether this objection could succeed - see Archbold (2000) para.8-106 where authority is cited fo r the proposition :-
"The mere fact that the statement is made in answer to a question is not in itself sufficient to make it inadmissible as a complaint".
Her second submission is that the judge was wrong to rule that part of the complaint, which is consistent with later evidence, is admissible, whilst inconsistent parts should be excluded and left for the defence to elicit as part of the evidence, if they so wish. We are inclined to accept this submission in the circumstances of the present case, where clearly there was a single conversation and either the whole conversation should be admitted, so far as relevant, or it should all be excluded. But we need not express a final view, or concern ourselves with the details of the conversation and of the evidence which emerged at the trial, because we can proceed to consider whether, assuming that the evidence was wrongly admitted, the conviction on the rape and indecency charges can be regarded as unsafe.
Miss Williams confirmed that the allegation of collusion by the two complainants with their mother was central to the defence case and that it was to be raised, whether or not this part of the evidence was admitted. On that basis, the mother and M would have each have been cross-examined as to whatever conversation took place between them with regard to the allegations made by M against the appellant. The defence might not have introduced in the course of cross-examination those parts of the conversation which were consistent with M's evidence in support of the indecency charges. But even if those parts of the conversation did not emerge at that stage, they could certainly have been introduced in re-examination, as Miss Williams conceded to us. It follows that the relevant part of the conversation would have been before the jury as part of the evidence, even if the judge had prevented the prosecution from calling it as part of their case. Miss Williams submitted that the impact on the jury would have been different, but in our view this is too slender a basis for regarding the convictions as unsafe. It follows that, even if the evidence was inadmissible, and the judge's ruling was wrong, this cannot provide a valid ground for appeal in the present case.
We therefore dismiss the appeal against conviction, for these reasons.
Sentence
Miss Williams submitted that under the guidelines set out in Billam (1987) 8 C.A.R. (S) 48 the starting point for the rape offences in the present case is a sentence of 8 years' imprisonment. This reflects the youth of the victim, although not the appellant's breach of trust. She submits that none of the other aggravating factors referred to in Billam, or which might be found in such a case, were present here. There was no suggestion of physical violence, threats, perversion or a history of past offending. The appellant had no record for offences of violence or of a sexual nature. Therefore, she submitted, the sentence of 12 years' imprisonment was simply too high. We agreed with this submission. If the sentence had been ten years' imprisonment, then that could not have been regarded as manifestly excessive. In our judgment, however, a proper sentence in all the circumstances of the present case was nine years' imprisonment, for the offences of rape, and to this extent the appeal against sentence is allowed.