Jersey Unreported Judgments

[2011]JRC123

Royal Court

(Samedi)

24^th June 2011

Before     :

J. A. Clyde-Smith, Commissioner., sitting alone.

The Attorney General

-v-

P

Directions Hearing regarding issues in relation to severance, use of screens and potential alibis.

J. C. Gollop, Esq., Crown Advocate.

Advocate S. A. Pearmain for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant applies for an order that the four sets of charges against him have been improperly joined in one Indictment, contrary to Rule 3 of the Indictment Rules 1972, or in the alternative that he is prejudiced or embarrassed by reason of the four sets of charges being joined, and that I should order separate trials pursuant to Rule 6(2) of the Indictment Rules.  It is necessary to briefly summarise the Crown case in respect of each of the four complainants. 

2.        Starting with A, the time period for Count 1 is 1^st November, 1974 to 31^st January, 1975.  A's account is that she came to know the defendant through her relationship with the defendant's sister E, when she was aged approximately 5 years old.  She says that while sleeping over at the defendant's family home when she was between the ages of 9 and 10, at or about Christmas time, the defendant indecently assaulted her by putting his hands down her pants and putting his finger inside her vagina.  The time period for Counts 2-5 is 17^th March, 1978 to 17^th March, 1979.  A's account is that when aged approximately 13½ she engaged in a full sexual relationship with the defendant which lasted approximately six to twelve months.

3.         For the reasons set out in the Crown's summary, the defendant is charged with the independent indecent acts other than the sexual intercourse itself.  Those acts were the touching of her breasts, the stroking of her vagina, digital penetration of her vagina, the defendant performing oral sex on her, and her performing oral sex on the defendant. 

4.        C, Counts 6-9, the time period for Counts 6 and 8 is between May 1988 and October 1988.  C is the defendant's daughter arising out of his marriage with F.  C's account is that when she was aged approximately 13 years old she started to spend time with the defendant and his then partner, G, at their flat in St Helier.  C says that on one occasion she was staying at the defendant's flat when she awoke to find the defendant performing oral sex on her.  C says that on a later date, when she was aged between 13 and 14 and she was staying with the defendant at an empty flat, which was supposedly occupied by H, the defendant supplied her with cannabis and drink, then undressed her and they had full sexual intercourse.  The time period for Count 9 is 1^st January, 1991 to 30^th June, 1991.  C says that at a later date when she was aged 16 the defendant was allowing her to sleep at his flat.  One night she woke to find the defendant lying beside her, cuddled up against her back.  She alleges that she could feel his hands down the back of her knickers trying to touch her private parts from behind.  She pushed him away and told him this was not going to happen. 

5.        B, Count 10, time period for Count 10 is 1^st January, 1989 to 31^st December, 1989.  B says she was approximately 3 years old at the time of the incident.  She says that the defendant was a friend of her mother's.  She says that one evening the defendant was babysitting for her and her younger brother.  She alleges that she was asleep on the sofa and awoke to find that the defendant was kneeling on the floor and had his head between her legs and was licking her clitoris.  She alleges that she started to cry and asked the defendant what he was doing and he told her to shut up and continued to assault her. 

6.        D, Counts 11-16; time period for Counts 11-16 is June 1998 to December 1998.  D says she was 12 years old at the time of the incident.  D alleges that during this period of time she was residing at La Preference Children's Home but she would stay at her mother's flat, which was located in St Helier, at weekends.  She says that the defendant was in a relationship with her mother.  She alleges that when both she and the defendant would stay at her mother's house, she would sleep in a bed between them.  She says that as soon as her mother had fallen asleep the defendant would indecently assault her by tickling her back and then tickling her bottom and rubbing his hands against her vagina and bottom. 

7.        Rule 3 of the Indictment Rules is in the following terms:-

"Rule 3     

Charges for any offences, whether crimes, délits or infractions, may be joined in the same indictment if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character."

It is common ground that these allegations are not founded on the same facts and I am concerned therefore with whether they "form or are part of a series of offences of the same or a similar character". 

8.        The leading English case on Rule 3, or its equivalent under English Law, is the House of Lords decision in Ludlow-v-Metropolitan Police Commissioner [1971] A.C. 29 HL which is helpfully summarised in Archbold 2011 Edition at paragraph 1-239 as follows:-

"In Ludlow-v-Metropolitan Police Commr, ante, the House of Lords, having considered the previous law and practice, held, in respect of rule 3 of the Indictment Rules 1915 (now rule 14.2(3) of the 2010 rules), that (a) two offences can constitute a series, and (b) both the law and the facts should be taken into account when deciding whether offences are similar or dissimilar in character.  They concluded that, in respect of the limb of the rule then under consideration, there must be a series of offences of a similar character; for this purpose there must be some nexus between the offences; nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.  Applying these principles to the facts of the case before them (charge of attempted larceny from a public house in Acton and a charge of robbery at a different public house in Acton 16 days later), it was held that the joinder had been proper; the offences charged were similar in both law and fact; they had the same essential ingredient of actual or attempted theft; they involved neighbouring public houses, and the time interval was only 16 days.  Their Lordships also cited, with implicit approval, the dictum in Kray, ante, that the operation of the relevant part of the rule is not restricted to cases where the evidence on one charge is admissible on the other(s) and expressly approved the dictum that the rule should not be given an unduly restricted meaning."

9.        In R-v-Baird 97 Cr. App. R. 308 CA the English Court of Appeal held that the question whether two sets of alleged offences could be described as a series for the purposes of Rule 9 of the Indictment Rules 1971 so that they could be properly joined in the same Indictment, should not be approached by consideration of a dictionary definition of the word "series".  The correct approach was to discover whether the alleged offences were linked by a sufficiently close nexus to bring them within the rule and if there was such a nexus, even offences separated by a period of nine years could be said to form a series of offences of the same or a similar character within the terms of Rule 9.  Giving the judgment of the Court Nolan LJ said this:-

"a coincidence in point of time, like a coincidence in point of location, might be an important factor in deciding whether or not certain offences might be regarded as part of a series, but every case must depend on its facts.  The correct approach was to discover where the alleged offences were linked by a sufficiently close nexus... see R-v-Kray, Ludlow and Marsh.

...

In the light of these authorities, and after carefully considering the submissions put before us, we have concluded that the judge was entitled to hold that the various counts could properly be joined in one indictment under rule 9, that he was justified in refusing to exercise his discretion under section 5(3) to sever the counts, because of the nexus between them, and that he was similarly justified in concluding that the evidence relating to the complaints of B was capable of corroborating the complaint of A and vice versa. Since there was no dispute about the identity of the appellant, it was unnecessary for the prosecution to adduce evidence of such striking similarity between the two sets of offences as to be comparable with the signature of the appellant, but the similarities were truly remarkable. In each case the appellant built upon a casual encounter with a young boy in the street to cultivate a friendship, to gain the confidence of the boy's parents, so that in the one case he was ultimately allowed to occupy the same bedroom and in the other the boy was allowed to visit his house alone, and in each case the friendship led to physical contact in the form of play-fighting. That might have seemed innocent enough in itself but must be considered in the light of the sexual feelings for the boys expressed in the diaries and the sexual orientation of the photographs. There was no coincidence in time or, for that matter, in place, but the prosecution case could well be described as one of history repeating itself in the methods by which and the motives with which the appellant built up a degree of familiarity with the boys which resulted in the alleged offences.

10.      Where no nexus based on mutual admissibility of evidence exists, time is a relevant factor for consideration but not determinative.  R-v-O'Brien [2000] WLR 191258 concerned two sets of charges of indecent assault by a headmaster against pupils at his school that took place in the 1970's and 1990's.  The English Court of Appeal, having reviewed the authorities, said this at paragraph 44:-

"On behalf of the Crown, Mr Webster QC, who did not appear at the trial submits, rightly in our judgement, that three principles are to be elicited from the authorities of Ludlow and Baird.  First that time is a factor for consideration but not a determining factor in relation to whether widely separated offences form part of a series.  Secondly, there must be a sufficient nexus between events which are widely separated in time before they can properly be characterised as a series.  Thirdly that nexus will be established if the evidence in relation to those widely separated events is cross-admissible."

And at paragraph 50:-

"In the context of the Criminal Law and Procedure in our judgement the longer the gap in time between two separate alleged offences, the clearer must be the nexus required, both to constitute a sufficient relationship between the events to give rise to a series within the indictment rules and to give rise to the admissibility of evidence in relation to one period to prove offences in relation to the other.  In the words of Lord Mackay in P there must be strong probative force if the evidence of one is to be admissible in relation to the other.  We do not find and the format as to which Mr Webster referred, "strong probative force" indeed seems to us that those matters properly analysed do not provide much of any probative force.  That being so the learned judge in our judgement was wrong to rule these offences to be tried together."

Thus a nexus is clearly established if there is cross admissibility of evidence although the rule is not confined to such cases.  It is helpful therefore as a starting point to have regard to the extent that there is cross admissibility of evidence in this case. 

11.      With one exception Mr Gollop conceded that in separate trials of each of the allegations made by the four complainants, the evidence of one complainant would not be admissible against any of the others.  There would appear to be no or little evidence that the defendant had a predilection to children of a certain age, the age span here is 3 to 16; there is no evidence of a particular relationship between the defendant and the complainants such a pupils or patients; there is no evidence of the defendant using similar techniques to groom his alleged victims or of his having used similar methodologies in the alleged assaults and there would appear to be nothing distinctive about the assaults.  That exception raised by Mr Gollop is that both A and C will say that they observed a tattoo of the word "suck" on the penis of the defendant.  This is not a feature in my view of the offences but evidence that may lend credibility to the account of the two complainants. 

12.      In say a separate trial of the complaints brought by A, the evidence of C, if admitted, Mr Gollop agreed, would have to be carefully restricted to her observations of her father's penis so as to prove the truth of the existence of this tattoo and not to extend to the highly prejudicial complaints of incest and indecent assault that she would otherwise make against him. 

13.      Thus, subject to that one point, this is a case in which the jury would have to be directed that the evidence of one complainant is not admissible to support the evidence of the others.  Even so, submitted Mr Gollop, there are similarities between the complaints which make it just for them to be heard together.  They are all cases of sexual abuse; all the complaints involve a breach of trust in which the defendant has appeared to take advantage of vulnerable children, a feature he accepts that is present in most abuse cases.  There are some similarities in the relationships in which, or which led him into contact with these children and in the ages of some of the children in some of the counts.  In three cases the complainants had been asleep and in others an apology was given when confronted some years later.  Whilst the similarities are not sufficient to make the evidence of one complainant admissible against the other, they provide, he argued, a sufficient nexus between the offences to permit joinder in one indictment. 

14.      Whether the four sets of charges form or are part of a series of offences of the same or similar character involves issues of law and fact for me to determine and in so doing I should not give the rule an unduly restrictive meaning. 

15.      The offences involving A were allegedly committed between 1974 and 1979.  Theirs, in the main, was a relationship of boyfriend and girlfriend.  It was nine years before the offences involving his own daughter, C, a quite different relationship, and in the case of incest, offence.  These offences took place between 1988 and 1991 and it was another seven years before the offences involving D took place.  These involved alleged indecent assaults when she was sleeping between the defendant and her mother, again a different relationship.  Admittedly there is an overlap in time between the allegations made by C and B but I agree with the defence that the circumstances of those two sets of allegations are very different. 

16.      I am mindful, from the case of O'Brien, that the greater the interval in time the clearer must be the nexus.  The substantial separation in time between the offences with evidence that is not mutually admissible leaves me to conclude that there is no sufficient nexus so as to constitute these four sets of offences a series for the purposes of Rule 3.  I find therefore that they have been mis-joined in the one Indictment. 

17.      I should go on to say that if I am wrong in so determining then I would have exercised my discretion under Rule 6(2) to order separate trials.  The leading authority on the exercise of this discretion is that the House of Lords decision in R-v-Christou [1996] 2 All ER 972 where Lord Taylor CJ cited with approval the following passage from the judgment of Lord Lane in R-v-Cannan (199) 92 Cr. App. R. 16 CA:-

'It may well be that often the judge in sexual cases will order severance, as is clear from the various cases which we have already taken the liberty of citing ... But the fact remains that the Indictments Act 1915 gives the judge a discretion, and it is a well known fact, and a well known principle, as Salmon L.J. in his usual clear language sets out in the case of Flack ([1969] 2 All ER 784, [1969] 1 WLR 937), that that is not a matter with which this court will interfere, unless it is shown that the judge has failed to exercise his discretion upon the usual and proper principles, namely, taking into account all things he should, and not taking into account anything which he should not.'

He went on to say this:-

"Lord Lane CJ, in the quoted passage, refrained from specifying the factors a judge should consider when 'taking into account all things he should'. They will vary from case to case, but the essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are: how discrete or interrelated are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families and on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge's directions of law are to be applied faithfully. Experience shows, as for example in R v Blackstock (1979) 70 Cr App R 34 and in the instant case, that juries, where counts are jointly tried, do follow the judge's directions and consider the counts separately.

Approaching the question of severance as indicated above, judges will often consider it right to order separate trials. But I reject the argument that either generally or in respect of any class of case, the judge must so order. Accordingly, I would answer the certified question, Yes, and dismiss this appeal."

18.      I have considered these factors but I am mindful of what Lord Cross said in DPP-v-Boardman [1975] A.C. 421:-

"Before I come to the particular facts of this case there is one other matter to which I wish to refer. When in a case of this sort the prosecution wishes to adduce "similar fact" evidence which the defence says is inadmissible, the question whether it is admissible ought, if possible, to be decided in the absence of the jury at the outset of the trial and if it is decided that the evidence is inadmissible and the accused is being charged in the same indictment with offences against the other men the charges relating to the different persons ought to be tried separately. If they are tried together the judge will, of course, have to tell the jury that in considering whether the accused is guilty of the offence alleged against him by A they must put out of mind the fact - which they know - that B and C are making similar allegations against him. But, as the Court of Criminal Appeal said in Rex v. Sims [1946] K.B. 531, 536, it is asking too much of any jury to tell them to perform mental gymnastics of this sort. If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons. It is said, I know, that to order separate trials in all these cases would be highly inconvenient. If and so far as this is true it is a reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying all the charges together

19.      This of course is not to say, as made clear in Christou that in cases of sexual abuse of children, where the evidence of one child is not admissible in support of allegations by another, the judge's discretion should always be exercised in favour of severance.  In this case the four sets of allegations are not, in my view, interrelated.  There would be no impact on the defendant's family from severance and although the complainants would be affected by further delay these are, as the defence point out, historic allegations.  Publicity can be controlled by appropriate press restrictions. 

20.      In terms of directions to the jury I agree with the defence that whatever direction I give there is a danger that it is asking too much of a jury to perform the mental gymnastics that would be required.  Fairness in my view dictates that there should be separate trials and I would have exercised my discretion under Rule 6(2) to so order. 

21.      Finally I have considered the prosecution's application for use of screens by A, B and C.  I have considered the relevant test in Myles-v-AG [2005] JCA 065 and AG-v-Richards [2010] JRC 124 and I grant the application which is not opposed. 

22.      P you are remanded in custody to return here at 9:30 on Tuesday 28^th June when the new Indictments will be put to you. 

Authorities

Indictment Rules 1972.

Ludlow-v-Metropolitan Police Commissioner [1971] A.C. 29 HL.

Archbold 2011 Edition.

R-v-Baird 97 Cr. App. R. 308 CA.

R-v-O'Brien [2000] WLR 191258.

R-v-Christou [1996] 2 All ER 972.

R-v-Cannan (199) 92 Cr. App. R. 16 CA.

DPP-v-Boardman [1975] A.C. 421.

Myles-v-AG [2010] JCA 065.

AG-v-Richards [2010] JRC 124.