Jersey Unreported Judgments

Application for leave to appeal against conviction on 30th June, 2011 on 12 counts of making an indecent photograph of a child.

[2012]JCA085

Court of Appeal

25 April 2012

Before     :

Sir John Nutting, Bt., Q.C., President; John Martin, Q.C., and; Jonathan Crow, Q.C.

U

-v-

The Attorney General

Application for leave to appeal against conviction on 30^th June, 2011 12 counts of making an indecent photograph of a child.

S. M. Baker, Esq., Crown Advocate.

Advocate O. A. Blakeley for the Applicant.

JUDGMENT

THE president:

Introduction

1.        On the 12th March 2012 the Appellant, U, applied to the Full Court for leave to appeal against conviction.  Since the submissions advanced by his advocate, Olaf Blakeley, revealed arguable grounds, we granted him leave, but dismissed his appeal.  We now give our reasons.

2.        The Appellant, a 34 year old man, was convicted on the 30th June 2011 of 12 counts of "making", i.e. viewing indecent photographs of children ("the 2010 Pictures") on his computer, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994. The counts were laid between 8th July 2008, the date when the computer's hard drive was manufactured, and 26th February 2010, the date of the Appellant's arrest. The photographs, almost without exception, were of young boys. The trial took place before Commissioner Clyde-Smith and Jurats.

3.        The evidence directly relating to the Indictment consisted of reports prepared by computer experts based on their examinations of the computer concerned ("the 2010 computer") and certain memory cards which had been seized from the Appellant's home shortly after his arrest.  When interviewed by the police the Appellant declined to answer any questions. At trial there was no dispute that the 2010 Pictures were found on the 2010 computer and there was no dispute that the 2010 computer belonged to, and was used by, the Appellant. The key factual question was whether the prosecution could prove that the Appellant made the 2010 Pictures.

4.        At a preliminary hearing shortly before the trial, the prosecution successfully applied to admit evidence ("the Similar Fact Evidence") which consisted of three elements. First, (in date order), a transaction on the Appellant's credit card in April 2003 to purchase a subscription ("the Subscription") to a website at http//tr.erectxboys.com ("Erectxboys"), second, a list of other website addresses on the Uniform Resource Locator (URL) of the hard drive of the 2005 computer, which had been visited from the 2005 computer ("the 2005 URL List"), and third, a memory card on the 2010 computer on which there was a film of the Appellant having sex with KH, then aged 14 ("the Film").

5.        On an earlier occasion in July 2005, the police had searched the Appellant's then address and had seized a different computer ("the 2005 computer").  Examination of that computer at the relevant time did not reveal evidence to support any criminal charges.  As a result, it was returned to the Appellant and was subsequently destroyed in a house fire. However, the police retained an image (i.e. a complete copy) of the hard drive. Subsequent examination of that image after February 2010, using different techniques from those employed in 2005, revealed deleted indecent images in "unallocated clusters" ("the 2005 Pictures"), forty of which were pictorially indistinguishable from a similar number of the 2010 Pictures.

Grounds of Appeal

6.        There were two strands to the Appellant's submissions: first, he complained about the introduction of the Similar Fact Evidence; second, he wished to challenge the lawfulness of the introduction of the forty 2005 Pictures, in respect of which no formal application had been made by the prosecution to the Commissioner  for their admission at trial, albeit that no formal application had been made by the defence for their exclusion notwithstanding clear references to them in the prosecution pre-trial papers. A third ground, relating to a lack of notice being given by the prosecution, was not pursued.

7.        The Appellant's submissions in relation to the Similar Fact Evidence were two-fold.  First, he said that it should not have been admitted because its probative value was not of sufficient weight to pass the threshold test for admissibility, that its admission was unfair and prejudicial to the Appellant, that it cannot be said with any degree of certainty that a conviction would have resulted if the Similar Fact Evidence had been excluded, that the conviction is unsafe, and that the conviction should therefore be quashed.  Alternatively, the Appellant submitted that even if the Similar Fact Evidence satisfied the relevant threshold test, it should nevertheless have been excluded in the exercise of the Commissioner's discretion because it was highly prejudicial to the Appellant, the prejudicial effect outweighed the probative value, the prejudice seriously affected the fairness of the trial, the resulting conviction was unsafe and, therefore, ought to be quashed.

8.        Dealing with each of the three elements of Similar Fact Evidence in turn, the prosecution alleged, and the Appellant admitted, that his credit card was used for the purchase of the Subscription.  However, the Appellant argued that this proved nothing because (i) it did not prove that it was he who purchased the Subscription, (ii) nor did it prove that any material on Erectxboys was indecent (as to which the prosecution adduced no evidence), (iii) when questioned by the police in 2005, the Appellant put forward a positive defence, asserting that he believed the Subscription to have involved an unauthorised use of his credit card, that he had complained to his credit card company which had re-credited the amount, and that despite the fact that he had given the police authority to examine his account or obtain relevant statements, they had not done so, and none were available by the time of his trial in 2011, (iv) forensic evidence could not demonstrate that the Erectxboys website had been visited from either the 2005 or the 2010 computer, (v) at the time the Subscription was purchased, the 2005 computer was inactive and had been inactive for fourteen days and was not reactivated until three days after the purchase, and (vi) no evidence was adduced to suggest that the Subscription had been purchased on-line by the Appellant using any other computer.  As such it was submitted that the evidence of the Subscription had no probative value, alternatively that its weight was negligible and was outweighed by the prejudice its admission into evidence was likely to cause.

9.        Turning next to the 2005 URL List, this comprised a list of a large number of websites within the 2005 computer's log, including "boyfuckfest.com", "boys.freehotgay.com", "schoolboysecrets.com", "fuckedboys.info", "boyfantasies.gphosted.com", "fresh-sex-boys.com","boysfuckgay.com", "hotgaysboys.com", gay.fuckgayboys.com", "boysforadult.us", "weloveboys.net", "boy-rape.com", and "www.boys-in-boys.com".  The Appellant submitted that (i) there was no evidence that those sites had been deliberately visited from the 2005 computer, (ii) a fortiori there was no evidence that those sites had been deliberately visited by the Appellant, (iii) there was no evidence that those sites contained any indecent material at any time, (iv) a fortiori there was no evidence that those sites contained any indecent material at any relevant time, and (v) there was no evidence that any websites on the 2005 URL List had been visited from the 2010 computer.  The Appellant submitted that this List was adduced by the prosecution in order to suggest (without proving) that the sites contained indecent material, that the Appellant had visited them in order to view such material, and that, therefore, he had a propensity for viewing indecent material on the internet.  As such, he submitted that the 2005 URL List was irrelevant, alternatively that it had no significant probative value and was prejudicial and therefore ought to have been excluded.

10.      As to the Film, the Appellant accepted that it had more probative value than any of the other Similar Fact Evidence, but nevertheless he submitted that its admission into evidence was wrong because its probative value was limited and its prejudicial effect substantial. In fact the Film was not shown to the Jurats who were merely informed of its existence and the identity of the participants. The Appellant's argument was founded on two alternative submissions: (i) he said that although the subject matter of the film (homosexual conduct with a male minor) was the same as the subject matter of the 2010 Pictures, "it is a completely different set of circumstances" (Appellant's Submissions, para 53), and (ii) that the court only allowed it to be introduced because it was regarded as being unfair to the prosecution to deprive it of the opportunity to rebut a defence based on an assertion that KH was responsible for making the 2010 Pictures.  The Appellant claimed that "that was not the main thrust of the Defence" (Appellant's Submissions, para 55).  It is said that the defence was not specifically to blame KH, but rather to cast doubt on the prosecution case by demonstrating that numerous people had access to the 2010 computer, and that it could not therefore be concluded with certainty that the Appellant had made the 2010 Pictures (Appellant's Submissions, para 61). Whilst accepting that the Film had some probative value, the Appellant submitted that it was so prejudicial as to render its admission into evidence wrong.

11.      Finally, the Appellant sought to challenge the admission of the forty 2005 Pictures recovered from the 2005 computer.  These did not form part of the subject matter of the charges, and as such it was said, they constituted evidence relating merely to alleged previous misconduct.  If the prosecution considered (rightly, the Appellant said) that permission was required to adduce the 2005 URL List from the 2005 computer, then logically permission was also required to adduce evidence of the 2005 Pictures.  No such permission was sought or obtained.  Furthermore, the Appellant submitted that although the 2005 Pictures and the 2010 Pictures were pictorially similar, that argument was circular because it did not provide any direct evidence that the Appellant made either set of pictures.

The Test for Admitting Similar Fact Evidence

12.      It is common ground that the relevant legal test for the introduction of similar fact evidence involves a two-stage analysis. The first is a hard-edged question of relevance, at which stage the question is whether the material has any probative value. The second stage involves a discretionary exercise to determine whether the evidence should, in all the circumstances of the case, be admitted.

13.      None of this is controversial or new.  It is well established that similar fact evidence is admissible if it is relevant to an issue before the court, e.g. because it tends to prove one of the elements in the alleged offence, or to rebut a defence which would otherwise be open to the accused:  Styles, Day, Carney & De Sousa v. AG [2006] JLR 210, following O'Brien v. Chief Constable of South Wales (2005) 2 AC 534, at para 67 et seq and ultimately Makin v. AG for NSW (1894) AC 57. The question of coincidence lies at the heart of the analysis.  Evidence is likely to be admissible if an attempt to explain it away by coincidence would be an affront to common sense, or would be against all probabilities, or would only be accepted as an explanation by an ultra cautious jury:  DPP v. P (1991) 2 AC 447.

14.      It is worth emphasising that in order to admit similar fact evidence, it is not necessary for the prosecution to wait until a specific defence has been set up.  It is sufficient if the defence is reasonably available: Harris v. DPP (1952) 36 Cr. App. R. 39, at p.52-54.  Nevertheless, the prosecution must not be allowed to adduce prejudicial evidence by imputing to the accused an intention to set up some improbable or fanciful defence: Thompson v. DPP (1918) AC 221, at p.232.  This qualification is illustrative of the more general principle mentioned above, which requires the court to balance the probative value of any admissible similar fact evidence against its prejudicial effect, and to exercise a discretion in deciding whether to allow it to be adduced - a discretion which is exercised by reference to the interests of justice:  Noor Mohamed v. R (1949) AC 182 at p.192.

The Defence in this Case

15.      Notwithstanding the admitted facts (as to which see para 3 above), the Appellant pleaded not guilty.  The evidence revealed by the prosecution demonstrated the existence of a shared user profile in their combined names on the 2010 computer.  Inferentially, the profile name was an amalgam of the first names of KH and the Appellant respectively. Although it is said that the main thrust of the defence case was not specifically to blame KH for making the 2010 pictures, nonetheless cross-examination of some of the prosecution witnesses was directed to show that other people, and certainly KH, had access to the Appellant's 2010 computer.

16.      There were other indications which showed that the defence at trial would canvass the possibility that KH, or someone else, may have been responsible for making the 2010 Pictures.  On 11th May 2011 the Appellant's lawyers served a Notice of Alibi that on the evening of 25th, and early morning of 26th, February 2010, at times when the 2010 computer was active and shortly before the Appellant's arrest, the Appellant was, allegedly, elsewhere than at his flat where the computer was situated.

17.      Furthermore Mr Christopher Caul of Minerva Forensics Ltd, an expert digital forensics analyst, compiled a report which was served on the prosecution in which he highlighted certain evidence and made specific assertions:  (i) that two individuals were known to have used the 2010 computer on a regular basis, both of whom had used the same user profile, and that both "appear to have shared the same folder structure within the user profile for storing and accessing documents and files", (ii) that notwithstanding this feature of shared storing and accessing documents and files, two system generated folders were habitually used independently, one associated with KH and one associated with U, (iii) that at 02.12.47 on 26th February 2010, a period covered by the alibi notice, the file associated with KH had been accessed by someone on the 2010 computer, and (iv) that after the Appellant had been arrested and taken to the police station, there was a four hour gap until the search of the flat and the seizure of the 2010 computer during which time the flat was unsealed and unattended.

18.      It was, therefore, apparent from documentation available to the prosecution before the trial, from the Appellant's plea of not guilty, and from the way in which the defence sought to test prosecution evidence at trial, that the defence was suggesting that someone other that the Appellant was responsible for making the 2010 Pictures. And although no specific allegation was made at trial that it was KH who made them, some of the cross-examination of prosecution witnesses and some questions put in chief to witnesses called for the defence were plainly directed to canvassing the possibility that KH could have been responsible. Therefore the prosecution had to rebut the inference that someone other than the Appellant, possibly KH, had made the 2010 Pictures.  In that context, the complaint put forward by the Appellant (namely, that he did not specifically allege that KH had made the pictures) is irrelevant.  The defence was that there was reasonable doubt that the Appellant had made them: the question whether the defence was inviting the jury to infer that it was specifically KH, or someone else (other than the Appellant), is immaterial.

The Subscription and the 2005 URL list

19.      The Appellant submitted that the Commissioner should have considered the Subscription in isolation and specifically that he should have put out of his mind the 2005 URL List when assessing the admissibility of the former. We disagree. Such an approach ignores the similarity between the name of the website to which the credit card Subscription related and the names of the other websites on the 2005 URL List. It is clearly relevant that many of the websites contain the word "boy" and that each, inferentially, was a website associated with sexual images of boys.

20.      The force of the link for the purposes of assessing the admissibility of the Subscription and the 2005 URL List is further supported by the evidence of a separate list of websites found on the 2010 computer ("the 2010 URL List").  It is conceded that none of the names of the websites on the two lists are the same.  However they are strikingly similar. The 2010 URL List includes "collegeboyporn.com", "boyfun.net", "sexyboys.name", "gayteenx.com", "bestloveboys.net" and "free-young-boys.com". This list, unsurprisingly, was admitted into evidence unopposed as evidence of sites which had been visited, allegedly by the Appellant, on the 2010 computer.  The 2010 URL List was clearly relevant evidence to show that the use to which the 2010 computer was put was not limited to the 2010 Pictures but included evidence of visits to websites which might be expected to include sexual images of boys similar to the 2010 Pictures.

21.      The Appellant submitted to this Court that the prosecution did not need evidence of the Subscription or the 2005 URL List (or the Film) because the other evidence in the case was strong enough without it.  This is not the test which should be applied to admissibility and in any event such a submission does not sit comfortably with the Appellant's assertion in his written grounds that if this Court was to accept that the Similar Fact Evidence was not admissible, the Court should not apply the Proviso because, absent the Similar Fact Evidence, a conviction was by no means inevitable.

22.      In any criminal case the prosecution are entitled to adduce all admissible evidence in proof of guilt, subject to the judicial discretion to exclude.  In this case, initially, the issue which had to be determined by this Court was whether the Subscription and the 2005 URL List were evidence which assisted the prosecution to establish that the Appellant had committed the offences described in the indictment or whether the evidence showed no more than a propensity for similar misconduct.

23.      In the judgment of this Court the evidence of both the Subscription and the 2005 URL List was clearly admissible to demonstrate that the Appellant had committed the offences and was not evidence merely of propensity. The following facts and inferences are pertinent: (i) the credit card which was used to subscribe to Erectxboys was in the Appellant's name, (ii) both computers belonged to the Appellant during the relevant periods of time, (iii) on 1st April 2003, the date of the Subscription, KH was 9 years of age and the Appellant had not met him, (iv) on 10th July 2005, the date on which the 2005 computer was seized and the date by which the 2005 URL websites must have been visited with the use of the 2005 computer, KH was 11 years of age and the Appellant had not met him, (v) in view of the similarity of the websites to which the use of the Appellant's credit card in 2003 and the two computers had been put by the time of the Appellant's arrest in 2005 and by February 2010 respectively, there was a sensible probability that the same person was involved in all the activities, (vi) that person cannot have been KH, and (vii) notwithstanding the absence of proof of the nature of the material which Erectxboys and the websites on the 2005 URL List (as well as the those on the 2010 URL List) contained, there was a reasonable inference that all the websites were concerned with sexual images of boys.

24.      Therefore, insofar as the defence included the assertion, express or implied, that KH was responsible for making the 2010 Pictures, or may have been, it was relevant for the prosecution to show that in April 2003 and prior to July 2005, at times when KH could not have been responsible, a credit card in the Appellant's name and the Appellant's 2005 computer were used to subscribe to a website, or search websites, inferentially containing sexual images of boys. Insofar as the defence included the assertion that a person, not specifically KH but someone other than the Appellant, was responsible for making the 2010 Pictures, it was relevant for the prosecution to show that someone in April 2003, and by July 2005, had made use both of the Appellant's credit card and his 2005 computer with a view to searching websites which, inferentially, contained sexual images of boys.

25.      We agree with the prosecution's submission to the Commissioner that, having called this evidence, the prosecution would be entitled to comment to the Jurats on the coincidence of such activity being undertaken in such circumstances by someone other than the Appellant and to invite the Jurats to consider whether these coincidences were not "an affront to common sense" and "against all probabilities" (DPP v P).  

26.      The Appellant's argument that there was no evidence that the card was actually used by him to subscribe to Erectxboys and that there was no evidence that it was he who visited the websites on the 2005 URL List does not vitiate the admissibility of either the Subscription or the 2005 URL List; nor does the Appellant's argument that the prosecution failed to adduce any direct evidence as to the content of the Erectxboys website, or any of the other websites on the 2005 URL List.  The prosecution submitted that the websites were obviously visited "by someone with an interest in indecent pictures of male children".  Based solely on the names of the websites, there is justification for this submission and there is a justifiable inference from the names of the websites that their content would indeed include sexual images of boys. But the admission of this evidence does not only depend on drawing an inference of the actual content of the website: it is as much based on the inference as to what the person using the computer would have reasonably believed he was looking for, and would find, by accessing websites with those names.

27.      Thus, we concluded that the prosecution case for admissibility is correctly based on the accumulation of inferences from the repetitive use of items of property belonging to the Appellant to access such websites between 2003 and 2010. The following features are plainly relevant: (i) the common ownership/possession of the three different access routes to the sites (the Appellant's credit card and two different computers), (ii) a reasonable expectation that these sites contained sexual images of boys, (iii) the lengthy period of time, seven years, over which the interest in such sites was manifest, and (iv) the absence of any explanation why an individual other than the Appellant should access a large number of such sites during that period on computers which did not belong to him and in circumstances which he successfully concealed from the Appellant. Making use of these features, the test to be applied is whether the coincidence of someone other than the Appellant being the person responsible can be excluded only by "an ultra cautious Jury" (DPP v P).

28.      The Commissioner gave his ruling on these matters on 24th June 2011 having heard extensive argument from the Crown Advocate and from Advocate Blakeley. Having summarised the arguments he concluded:-

"The admission of prejudicial evidence of this kind is a matter which requires careful consideration. The Defendant accepts, as I understand it, that the images subject to the charge were recovered from his computer and so his defence must at least involve pointing to others who may have had access to his computer, in particular BB [or KH as he was referred to in this Court]. It is clear to me, and the prosecution is on notice, that the evidence will lead the defence in this direction. The prosecution are entitled, in my view, to adduce evidence to rebut that defence. Without repeating them here, I accept the contentions of the prosecution and I am satisfied that, notwithstanding the criticisms of this evidence voiced by Mr Blakeley, the probative value of it is sufficiently great to make it just to admit and I so order."  

29.      This Court reviewed all the evidence associated with the admission of the Subscription and the URL List. In relation to the Subscription, we paid particular heed to the Appellant's denial of responsibility for the use of his credit card on 1st April 2003 and the apparent loss of any relevant financial records by the trial date to prove or disprove the Appellant's claim. The Appellant submitted that in the absence of proof that the Appellant was lying, the Commissioner should have excluded the Subscription evidence in the exercise of his discretion. It has to be emphasised that mere denial of the commission of the acts to which the similar fact evidence relates cannot affect its admissibility and, therefore, may well not be relevant to the exercise of the discretion. Indeed in many, perhaps most, cases where similar fact evidence is admitted, the similar fact evidence itself is as much in dispute as the evidence directly related to the indictment.

30.      This Court also gave careful thought to the points urged by the Appellant and summarised in para 8 above, including the fact that the 2005 computer was inactive on the date when the credit card was used to make the Subscription and did not become active until three days later, and the fact that the prosecution could not show any visit to the Erectxboys website either by the 2005 or the 2010 computers.    

31.      It is axiomatic that this Court would be loath to interfere with the discretion of any trial judge. The circumstances in which an appellate court in a criminal trial might be constrained to overturn the exercise by a trial judge of his discretion to admit evidence was considered by the Court of Appeal in R v. O'Leary (1988) 87 Cr. App. R. 387. In rejecting the submission that the Court should overrule the trial judge, May LJ said at p. 391:  "The judge expressed his decision not to reject the evidence applying the proper test laid down by statute.  In our judgment, although we have a certain hesitation on the point, we do not think it can be said that the decision was perverse in the legal sense, a decision to which no reasonable judge could have come." This test was followed in R v. Quinn (1995) 1 Cr. App. R. 480 per Lord Taylor LCJ at p. 489 and in R v. Dures (1997) 2 Cr. App. R. 247 at p. 261-267 per Rose LJ.

32.      We considered the evidence associated with the Subscription and we found nothing to criticize in the exercise of the Commissioner's discretion to allow it to be given in evidence. In the circumstances his decision could not be considered to be perverse, or one to which no reasonable judge could have come.

33.      We also considered the 2005 URL List in the context of the Commissioner's discretion. We have already indicated that in the judgment of this Court the failure by the prosecution to prove the contents of these websites and the fact that they could not show that any of these sites had been visited either by the 2005 or by the 2010 computers was not fatal to the admissibility of the evidence because there was a justifiable inference as to the contents and an equally justifiable inference that someone trying to visit such sites would expect to find sexual images of boys of a kind similar to the 2010 Pictures.  The Appellant was not able to suggest, once the Commissioner had ruled the 2005 URL List admissible, that there was anything which rendered the exercise of his discretion to admit it perverse. This Court found nothing perverse or unreasonable in the exercise by the Commissioner of his discretion to admit this piece of evidence.      

The Film

34.      It is a fact that the Appellant engaged in unlawful sexual activity with KH when KH was 14 years of age and that he filmed one such incident.  The Appellant had retained the Film on a memory card on his 2010 computer. In November 2010 at a separate trial, he was convicted on numerous counts of indecent assault on, and of procuring acts of gross indecency with, KH, albeit that some of the counts were later quashed on appeal. However it was the fact of the existence of the Film, rather than the fact of conviction, which was admitted in evidence at the Appellant's trial on the 2010 Pictures.

35.      The prosecution submitted that the Film was admissible on two bases. The first was as Similar Fact Evidence in order to prove the identity of the Appellant as the person who made the 2010 Pictures. It is said that the fact that the Appellant made and retained a copy of the Film is relevant evidence of the Appellant's interest in making and retaining indecent images of boys.  The Appellant's submission that the Film was made in "a completely different set of circumstances" from the 2010 Pictures does not take the matter very much further forward: both sets of images relate essentially to the same subject matter.

36.      We concluded that in the context of deciding whether the Appellant had committed the offences in the Indictment, the Jurats were entitled to ask whether there was a sensible possibility that the Appellant was the person responsible for all the activities, the Subscription, the 2005 URL List and the Film, or whether a number of individuals, at least two and possibly more, could realistically have been responsible in his place.  In so far as the Film fell to be considered as similar fact evidence this Court is satisfied that it was not admitted in evidence to prove propensity or disposition by the Appellant, but rather because the Film provided relevant evidence of the Appellant's culpability and also to rebut the defence that someone other than the Appellant (whether it was said to be KH or not) made the 2010 Pictures on the 2010 computer. For this reason the evidence was properly admitted.

37.      This Court also considered whether the exercise by the Commissioner of his discretion to admit the Film can be faulted in any way in accordance with principles we have set out above. The Commissioner made a preliminary ruling on 24th June 2011 but asked for further argument four days later. In his final ruling on 28th June, he said "In my judgment.....the evidence will inevitably lead to the defence at least [sic] that [the person we have identified in this Court as KH] who was a joint user of this computer, was responsible for the images (i.e. the 2010 Pictures). It cannot be fair in my view to the prosecution, and fairness works both ways, to have that defence put before the Jurats when the prosecution has evidence that the Defendant was in possession of an indecent film of him sexually assaulting KH himself. Therefore, having reviewed the matter carefully again and taking into account the submissions of Counsel, and for the reasons put forward by the prosecution, I have concluded that my decision of last Friday should stand and that Evidence C (ie the Film) should be admitted." It is clear that the Commissioner considered the admissibility of the Film with care and this Court finds nothing to criticise in the way he exercised his discretion to admit it.

38.      The prosecution submitted that there was a second basis of admissibility of this piece of evidence, namely, to enable the Jurats the better to understand the background to the making of the 2010 Pictures. This was especially relevant in the context of the allegation that KH may have been responsible for making them.  The background included the fact that it was KH who had complained to the police of the abusive relationship which he had suffered at the hands of the Appellant and in particular the existence of the Film. That being part of the story, it was submitted, the court was entitled to draw an informed inference as to whether it was likely that, if KH had made the 2010 Pictures, he would have informed the police against the Appellant. He did so in early February 2010. His action resulted in the Appellant's arrest two weeks later and led the police, inevitably, to seize the Appellant's computer which, on this hypothesis, would contain evidence of KH's own criminal conduct.

39.      The seminal exposition of the admissibility of background evidence of such a kind derives from the judgment of Purchas LJ in the case of R v. Pettman; Court of Appeal; 2nd May 1985; unreported. "Where it is necessary to place before the jury evidence of part of a continual background or history relevant to the offence charged in the indictment, and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence."

40.      The inclusion of such evidence is sometimes said to originate from the justification of including evidence of motive, for example, in cases of murder. Although it is never necessary for the prosecution to prove motive as an ingredient of that offence, it is nonetheless often permissible for the prosecution to prove the existence of animosity between the accused and the deceased. Lord Atkinson in R v. Ball (1911) AC 47 at p.68 said:-

"Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show that he entertained feelings of enmity towards the deceased and this is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his 'malice aforethought'  in as much as it is more probable that men are killed by those that have some motive for killing them than by those who have not."

41.      But in truth all that is required is that such evidence passes the threshold test for relevance; and although background or historical evidence may include evidence of similar fact, it is important to distinguish evidence of background from similar fact evidence because of the higher test of admissibility invariably accorded to the latter. Professor Birch pointed out the distinction in (1995) Crim. LR 651:-

"Similar fact evidence is employed as evidence which tends strongly to prove a particular fact (identity, intent, causal connection or whatever) which could be proved by other means but which the prosecution has chosen to establish by reference to other misconduct of the accused. As such, the evidence may need to be possessed of a high degree of probative value in order to buy its ticket to admissibility, for it involves 'dragging up' material which is by definition prejudicial and which might have been left out. Thus it has been said that such evidence should be admitted in circumstances where it would be an 'affront to common sense' to exclude it (per Lord Cross in Director of Public Prosecutions v. Boardman (1974) 3 All ER 887 at p. 908, (1975) AC 421 at p. 456). Background evidence, on the other hand, has a far less dramatic but no less important claim to be received. It is admitted in order to put the jury in the general picture about the characters involved in the action and the run up to the alleged offence. It may or may not involve prior offences; if it does so this is because the account would be, as Purchase LJ says in R v. Pettman (2nd May 1985, unreported), 'incomplete or incoherent' without them. It is not so much that it would be an affront to common sense to exclude the evidence, rather that it would be helpful to have it and difficult for the jury to do their job if events are viewed in total isolation from their history."          

42.      In R v. Sawoniuk (2000) 2 Cr. App. R 220 the Court of Appeal held that evidence of similar violent conduct towards Jews by the appellant was admissible to prove the accuracy of the recognition/identification of the appellant on specific charges of the murder of Jews pursuant to the Nazi policy of genocide in occupied Belorussia in 1941/42. Lord Bingham LCJ said at p.234:-

"It was not the criminal nature of the conduct which made the evidence admissible, but the fact that it identified him (the appellant) as a member of the group to which the killer in counts one and three belonged. Thus the effect of the evidence was to identify the appellant as one of the possible killers. The evidence did not identify him but it supported the identification of the eye witnesses. The evidence was called to prove not the appellant's propensity for misconduct but his participation in a police operation of which the counts in the indictment were a part".

43.      But the Court of Appeal also held that the evidence was admissible on a wider basis. Citing R v Pettman and subsequent cases where evidence was admitted on an historical or background basis, including R v. Sidhu (1994) 98 Cr. App. R. 59 and R v. Fulcher (1995) 2 Cr. App. R. 251, Lord Bingham concluded that "it was necessary and appropriate" for the prosecution to prove a number of background matters including the role played by the local police force, of which the appellant was a leading member, in the Nazi policy of the murder of local Jews. Lord Bingham said at p.235 "It has not been suggested that the jury should have been invited to reach verdicts on counts one and three having heard no more than the eye-witnesses on each; had these gruesome events not been set in their factual context, the jury would have been understandably bewildered."    

44.      Examples of cases where background evidence has been held to be admissible include, as indicated above, R v. Sidhu where evidence of the participation by the appellant in a film supporting terrorist activity was admissible to show that the appellant had semtex in his possession for an unlawful purpose. In R v. Fulcher evidence of previous non-accidental injuries to the deceased, the appellant's baby son, was held to be admissible to show a history of violent conduct towards the baby as well as to rebut any suggestion that the fatal blow was accidental. In R v. M and others (2000) 1 All ER 148 evidence of sexual behaviour by other members of a family towards each other was held to be admissible in order to establish the context in which a brother charged with raping his younger sister felt no inhibition in doing so, secure in the knowledge that she would not seek the protection of her parents, and in which, by the same token, the sister, once raped, was afraid to make any complaint to her family.

45.      In R v. Phillips (Alun) (2003) 2 Cr. App. R. 35 the Court of Appeal ruled that evidence of the relationship between the appellant and his wife was admissible at his trial for murdering her. Lord Justice Dyson (as he then was) at para 29 of the judgement said:-

"We do not propose to conduct an exhaustive analysis of all the authorities to which we were referred. To a great extent they turn on their own facts. The essential question in every case is whether the evidence passes the test of relevance. If it is relevant then it is admissible unless, in the exercise of its discretion, the court decides that fairness requires it to be excluded."     

46.      Applying the test of relevance to the relationship between the Appellant and KH and the issues in this case, we are satisfied that in deciding whether there was a possibility that KH had made the 2010 Pictures, it would have been unrealistic to have deprived the Jurats of the details of the relationship between KH and the Appellant, including the existence of the Film and KH's allegations to police shortly before the Appellant's arrest. This evidence "put the jury (Jurats) in the general picture about two of the characters involved in the action... (It was) helpful for the jury to have it and difficult for the jury to do their job" if the relationship had not been explained to them, to adapt the language of Professor Birch. This background constituted evidence "without the totality of which the account placed before the jury would be incomplete" to use the phraseology of Purchase LJ in R v. Pettman. The evidence was also "necessary and appropriate", per Lord Bingham in R v Sawoniuk, to enable the Jurats to decide whether, as between those two persons, it was more likely that it was the Appellant, rather than KH, who had committed these offences. For these reasons, the Film passed the threshold test for admissibility as relevant background evidence.

The 2005 Pictures

47.      The prosecution submitted that the forty 2005 Pictures were admissible as similar fact evidence, although the Crown Advocate acknowledged that he had failed at the trial to apply for their admission on that basis. As a matter of fact neither the Commissioner questioned the basis of admissibility of the 2005 Pictures, nor did the Appellant raise objection to their introduction into evidence at the preliminary hearing or at the trial.  The prosecution submitted, in the alternative, that the 2005 Pictures were admissible as part of a complete history of the making of the 2010 Pictures in accordance with the principles of R v. Pettman and the cases which have followed that line of authority, as discussed above.

48.      In relation to similar fact evidence, the prosecution submitted to this Court that the Commissioner would inevitably have admitted the evidence to enable the Jurats to draw inferences from the presence of the 2005 Pictures on the 2005 computer.  The prosecution claimed that the fact that such pictures had been made on that computer was plainly capable of supporting the inference that the making of the 2010 Pictures on the 2010 computer was to be explained by the common ownership of both computers and the common identity of the person making the images, and not by any improbable chance that some other unidentified person had made both sets of images on separate computers (not belonging to him and in circumstances which he successfully concealed from the owner) on different occasions some five years apart.

49.      However, the fact remains that the prosecution did not apply for permission to adduce the 2005 Pictures at trial.  The Appellant submitted that if permission was (rightly) considered to be necessary to adduce the 2005 URL List, then permission was similarly necessary to adduce the 2005 Pictures.  No such permission was sought or granted. In such circumstances it is the responsibility of this Court to assess the admissibility of the 2005 Pictures on the assumption that they fell to be considered first as similar fact evidence and, if admissible, second to decide whether to exercise a discretion to admit the evidence in accordance with the principles applied in R v. Parris 89 Cr. App. R. 68.

50.      As it seemed to this Court the prosecution was plainly right and we accept that "the admission of the evidence would have been inevitable" (AG's Response, para 40), which may well explain why none of those concerned took any point on the matter before or at trial. The existence of the forty 2005 Pictures on the 2005 computer was admissible to support the inference that the making of those pictures was done by the same person who made the 2010 Pictures on the 2010 computer. In view of the common ownership of the two computers, the distance in time between the making of the two sets of images and the identical nature of the forty 2005 Pictures and forty of the 2010 Pictures, there was a compelling case for admissibility and no reason to exercise a discretion to exclude them.        

51.      For completeness we also address the prosecution's alternative submission. In the judgment of this Court the evidence of the making of the 2010 Pictures on the 2010 computer would have been "incomplete" (see R v Pettman) without the evidence of the forty pictorially identical 2005 Pictures. In this case, per Professor Birch, "it would have been difficult for the (Jurats) to do their job if events" (in relation to the making of the 2010 Pictures) "are viewed in total isolation from their history" (including the making of the 2005 Pictures). In our judgment it was "necessary and appropriate" for the Jurats to hear evidence of the 2005 Pictures, (see R v Sawoniuk), because the evidence was plainly "relevant" (see R v Phillips (Alun)).

52.      We read with care the Commissioner's summing up which included careful directions on how the Jurats were to approach the Similar Fact Evidence in fact no criticism has been made of the summing up.  We also reviewed the overall basis of the conviction and we found nothing which would cause this Court to doubt the validity of the verdicts returned on this Indictment. The cumulative evidence against the Appellant was compelling, based as it was on the forensic examination of the 2010 computer, together with the evidence derived from the Subscription evidence, the 2005 URL List, the Film and the 2005 Photographs. There was an absence of any direct evidence (or even any credible suggestion) that anyone other than the Appellant had made the 2010 Pictures.  In particular, there was forensic evidence at trial indicating use of the 2010 computer and the arrangement of indecent images late the night before and into the early hours of the morning on which Appellant was arrested at which time, the Jurats were entitled to conclude notwithstanding the alleged alibi, that the Appellant was alone in his flat. That activity involved, significantly, accessing no fewer than 270 files, most of them images, from a directory labelled 'Privatepictures/Young'.

Conclusion

53.      For these reasons, we dismissed this appeal.

Authorities

Protection of Children (Jersey) Law 1994.

Styles, Day, Carney & De Sousa v. AG [2006] JLR 210.

O'Brien v. Chief Constable of South Wales (2005) 2 AC 534.

Makin v. AG for NSW (1894) AC 57.

DPP v. P (1991) 2 AC 447.

Harris v. DPP (1952) 36 Cr. App. R. 39.

Thompson v. DPP (1918) AC 221.

Noor Mohamed v. R (1949) AC 182.

Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223.

R v. O'Leary (1988) 87 Cr. App. R. 387.

R v. Quinn (1995) 1 Cr. App. R. 480.

R v. Dures (1997) 2 Cr. App. R. 247.

R v. Pettman; Court of Appeal; 2nd May 1985.

Lord Atkinson in R v. Ball (1911) AC 47.

R v. Sawoniuk (2000) 2 Cr. App. R 220.

R v. Sidhu (1994) 98 Cr. App. R. 59.

R v. Fulcher (1995) 2 Cr. App. R. 251.

R v. M and others (2000) 1 All ER 148.

R v. Phillips (Alun) (2003) 2 Cr. App. R. 35.

R v. Parris 89 Cr. App. R. 68.

R v. Keenan 90 Cr. App. R. 1.