Jersey Unreported Judgments

Hearing (Criminal) - directions hearing - evidence of distress

[2017]JRC044

Royal Court

(Samedi)

17 March 2017

The Attorney General

-v-

Michael Lee Steer

C. M. M. Yates, Esq., Crown Advocate.

Advocate M. P. Boothman for the Defendant.

JUDGMENT

THE commissioner:

1.        This is an application by the prosecution to adduce certain evidence which is opposed by the defence.  Although primarily directed towards the issue of distress in the submissions, it seems to me it also covers questions of recent complaint.  The two are, of course, quite separate.  Evidence of recent complaint in a sexual case is admissible but for the very limited purpose of showing consistency and a direction has to be given that it is not evidence as such.  Nevertheless the law is clear that in general evidence of recent complaint, provided it is recent, in other words made promptly, is admissible. 

2.        In my judgment I see no reason not to apply that in this case and I therefore think that evidence of the complaints made by the complainant are admissible.  However the authorities to which I have been referred, in particular the case of R-v-Valentine [1996] 2 Cr App R 213 make it clear that the prosecution must not be allowed to lead evidence of the same complaints made in broadly the same terms on several occasions soon after the alleged offence because that would be prejudicial and might incline the jury to regard the contents of the complaints as evidence of the truth of what they assert. 

3.        As to distress, that is different.  Again evidence of distress immediately after an alleged sexual assault can be admissible and in that case it can be supporting (corroborative) evidence of the offence itself.  However the jury have to be warned that it can be feigned and of course this may particularly be so if the complainant knows that she is being observed, so that goes very much to the weight.  Advocate Boothman, I think, sought to argue that really one should not allow in this sort of evidence and he referred to the case of R-v-Keast [1998] Crim. L.R. 748 in particular, which was supported in the case of R-v-Abdal Miah [2014] EWCA Crim 938. 

4.        I regard Keast as being a completely different sort of case.  That was concerned with alleged abuse of a child over a period and the question related to alleged changes in the demeanour of the child, in that the child became quiet and introverted rather than the child's normal happy-go-lucky self and this was said to be admissible as supporting evidence.  The court did not agree.  I can well understand that, but that seems to me completely different from the sort of evidence of distress which is admitted on a regular basis in relation to alleged sexual assaults where the distress is shortly after the alleged assault; and indeed that distinction is made in Keast itself in the passage quoted by Advocate Boothman, although he failed to quote that particular bit of it.  So I consider that evidence of distress is in principle admissible but in my judgment it is subject to the same discretionary controlling factor as in relation to evidence of complaint, namely that one should not allow it to be given repeatedly and in over-powerful form so that the evidence of distress takes on undue prominence in the jury's consideration because, as the authorities make clear, evidence of distress is very often of marginal assistance. 

5.        Turning to apply these principles to the present facts in relation to recent complaint, it is said that there were four occasions of complaint; the first was to the friend of the complainant in a telephone call made the morning after at about 9.15, the assault having occurred in the early hours of that morning.  The second is to the complainant's mother in a telephone call made almost immediately after the telephone call to the friend; the third is in her call to the control room of the police station made shortly afterwards; and the fourth is in what she said to the woman police officer a short while later when she was specifically asked whether she had been sexually assaulted and she replied positively. 

6.        The defence agree that the evidence in relation to the friend should be properly admitted by oral evidence.  I think in the end Advocate Boothman also accepted that evidence of the existence of the complaint to the mother and to the police control room was admissible, but should be in by way of admission.  I agree with that.  I do not think the details are necessary other than if the parties agree to include in the admission a reference to the lack of an allegation of a sexual assault in those two complaints if that is what the defence wish to have admitted.  As to the evidence of the woman police officer, it seems to me that that ought to go in in fairness to both sides, not least because there are comments made by the complainant which the defence have admitted they will wish to get in, namely that the complaint of sexual assault was in answer to a leading question and secondly, things she said about whether she had just let the defendant do what he wished.  That may be relevant either to consent or to belief in consent.  So it seems to me that is relevant and ought to be admitted and I think in the end Advocate Boothman did not object to that going in for those reasons.  So that is my ruling on the evidence of recent complaint. 

7.        Turning to distress, again as matters progressed this morning, there was a measure of agreement between counsel.  I think both were agreed that evidence of distress during the call to the friend was admissible.  It was the first occasion and it was part and parcel of her call.  I think in the end it was also agreed that the existence of distress in the call to the mother could go in by way of admission; in other words no graphic detail but simply an admission that during the call to the mother the complainant appeared to the mother on the telephone to be in a distressed state.  So I am sure that can be reduced to an admission which reflects fairly without over-elaboration the mother's evidence.  I do not think any question of distress arises in relation to the transcript of the call to the police. 

8.        We then come to the evidence of the two police officers at the scene.  I have also had the benefit of seeing the CCTV from the body-cameras.  It is clear from that that the complainant was indeed extremely distressed as the officers say in their statements. 

9.        In my judgment evidence of her state of distress at that stage is admissible.  The authorities are clear that evidence of distress is in principle admissible although the weight to be attached to it is for the jury and they will need to be directed about the possibility of her making it up for other reasons and certainly that is a direction which should be given.  The question is whether that evidence should be admitted simply by way of the police evidence or by way of the CCTV footage.  The authorities have warned repeatedly about the danger of placing too much weight upon evidence of distress and indeed judges have often said that really it is of marginal assistance. 

10.      In those circumstances I think there is a real risk of the jury placing undue weight upon the evidence of distress if they see the CCTV evidence.  They will not be seeing CCTV evidence of other matters. It will give that evidence great prominence and will be more graphic than other evidence they hear.  I understand Advocate Yates' submission that it is the best evidence of the complainant's distress but I consider that, in all the circumstances, its prejudicial effect by giving undue prominence to this evidence, which is said to be of marginal relevance, outweighs its probative value.  I therefore decline to allow in the CCTV evidence.  However, as I have already indicated I consider that evidence of her distress when seen by the police officers is relevant.  I also consider that repeated reference to distress, rather like repeated reference to complaints, is probably not fair to the defence and therefore I think the best course is that it should just be the woman police officer who gives evidence of this distress.  I think when one looks at the statement, really the male police officer can add very little and therefore I think the evidence should be confined to that of the woman police officer.  So I hope that ruling is clear. 

11.      Can I just add this.  I think what you should do Advocate Yates, is set the court up so that you can play this CCTV if need be, because if the way the case developed, particularly in the light of any cross-examination, were to make me feel that, actually, fairness dictated that this CCTV evidence should go in, then you need to be in a position to play it should you apply at the time and should I accede to such application. 

Authorities

Valentine [1996] 2 Cr App R 213.

R-v-Keast [1998] Crim. L.R. 748.

R-v-Abdal Miah [2014] EWCA Crim 938.