Jersey Unreported Judgments

[2008]JRC174A

ROYAL COURT

(Samedi Division)

6^th October 2008

The Attorney General

-v-

Harry George Hayman

Crown's application with regard to admissibility of evidence by way of similar fact evidence.

R. J. MacRae, Esq., Crown Advocate.

Advocate D. F. Le Quesne for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        I now have to consider an application by the Crown that the evidence of two witnesses should be treated as being admissible on the remaining counts, except count 1, by way of similar fact evidence.  The broad background to these allegations is that there are suggestions by six children that whilst having piano lessons they were either indecently assaulted or in one case asked to commit an act of indecency with the defendant who was their teacher.  They were all of broadly similar ages. 

2.        The principles I must consider are well established DPP v P [1991] 2 A.C. 447 is the leading case and the relevant part of Lord MacKay's speech says this:-

"From all that was said by the House in Reg. v. Boardman I would deduce the essential feature of evidence which is to be admitted is that its 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."

He goes on to say that it is a matter of judgement in each case as to whether the evidence has sufficient probative value to outweigh its prejudicial effect. 

3.        A convenient summary is also to be found in Archbold, in particular paragraph 13-57 where it says:-

"In such cases the task of the judge would have been to assume that the evidence of the witnesses was true and then ask himself whether explanation of the common allegations on the basis of chance or coincidence would have been an affront to common sense.  No particular degree of similarity was required, the reality was that independent people do not make false allegations of a like nature against the same person."

4.        There is no dispute in this case that the evidence in relation to counts 2, 3, 5, 6 and 7 are all admissible in respect of the other counts, by way of similar fact evidence.  What Mr Le Quesne says is that first of all the evidence of J, who is the subject of count 4, is sufficiently different so as not to be admissible by way of similar fact evidence on the other counts, and of course vice versa the others will not be admissible on count 4.  Secondly he says that the evidence of A, who the prosecution wish to call, is similarly not admissible as being insufficiently similar. 

5.        I will take A's evidence first.  She is an adult, her age is not declared but she has daughters of 7 and 11, and the incidents in her case happened between November 2006 and July 2007, whereas the other incidents occurred many, many years earlier.  What she says in her case is that she started to feel uncomfortable, he was rather familiar with her, made one or two suggestive remarks.  As to what he actually did, she says that "during lessons he would sometimes put his arm over my shoulder or his hand on my knee or thigh.  Sometimes he would let his hand rest there."  She went on to say that "he left his hand on my thigh whilst I was playing the piano on about six occasions during the whole time I had lessons."  I do not consider that the probative value of this lady's evidence is sufficient to outweigh its prejudicial effect.  I consider its probative effect to be minimal; she is an adult whereas all the other complainants are children; what is actually alleged is of a different nature in the sense that in all the other cases there were undoubtedly elements of intimacy whereas A simply alleges that he put his arm over her shoulder or his hand on her knee or thigh.  I regard its probative value as minimal.  Conversely I do agree with Mr Le Quesne that its prejudicial effect could be substantial.  Therefore I rule that her statement, insofar as it relates to the touching, should not be admitted.

6.        Mr MacRae says that there is a second area where he would like her evidence admitted, because she says that on some occasions he had clearly been drinking because she could smell alcohol on his breath and she also saw a short glass in the kitchen.  Furthermore he would sometimes leave the room for a couple of minutes and when he came back his breath would smell more strongly of alcohol.  Mr MacRae argues that that is relevant and probative because two of the child complainants refer to drinking.  However the only one who refers to alcohol is F, who says that she did smell alcohol on his breath.  The second one is J.  He says that he saw the defendant drinking from a crystal tumbler with ice in it and the drink was clear which made him think it might have been gin or vodka, although he says it could have been water.  One has to say, therefore, that his evidence is not very strong on that aspect.  None of the other complainants refer to the drinking at all.  I regard the probative element of A's statement as being minimal.  I do not see that it will assist the jury on resolving the issues, even if Mr Hayman, when he gives evidence, does indeed deny that he was drinking.  I regard that as tangential whereas I do think there is a prejudicial effect.  I therefore rule that A's statement is not admissible at all.

7.        I turn then to J, I regard that as being very different.  He was a child, he was having piano lessons with the defendant at the same time as the other allegations are meant to have taken place, and he says that he was the subject of indecency.  It is true that there are differences.  The charge itself is different in his case in that it is procuring an act of indecency, because it is said that he was induced to play a fingers game where he would put his hands behind him and feel the fingers of the defendant.  On one occasion it is said that when he put his hands behind him what he in fact touched was the defendant's penis.  To that extent, therefore, there are differences and he is a boy whereas the other complainants are girls.  But as against that the exact nature of the allegations of the girls varies somewhat.  In my judgement the essence of the similarity in this case is that the defendant was the piano teacher and that during the course of those lessons, it is said, he committed acts which were clearly sexual acts of one sort or another with young children.  I regard the evidence in relation to J as being very probative on the other charges, and vice versa.  Does the prejudicial effect outweigh the probative value?  I do not think so.  As I say this, in my judgement, is strongly probative and I, in my discretion, regard it as being perfectly proper to admit it by way of similar fact evidence.

Authorities

DPP v P [1991] 2 A.C. 447.

Archbold.