Case No:  99/05451/W5

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TRURO
(HIS HONOUR JUDGE RUCKER)
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday  25th May 2000

B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE ALLIOTT
and 
MR JUSTICE HENRIQUES
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	REGINA		
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	David John R		
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
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R Macrae Esq (instructed for the Appellant)
M Brabin Esq (instructed for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Henriques:

1.		This is the judgment of the Court.  David John R. appeals against convictions for indecent assault, committing gross indecency with a child and two offences of rape having been convicted on the 4th of August 1999 at the Truro Crown Court (H.H. Judge Rucker) and sentenced to a total of 10 years imprisonment.  The appropriate order was made under the Sexual Offences Act 1997.

2.		The victim of each offence was the appellants step daughter T.B, who was born on the sixth of February 1979.  It was alleged that between 5th February 1991 and the 7th of February 1994 when the complainant was aged between 12 and 14 the appellant indecently assaulted her (count one) committed an act of gross indecency (count two) and raped her (counts three and four).  Count 2 was a specimen charge.

3.		The offences came to light following a family row in March 1999 when the complainant was 20 years of age.  The appellant was arrested and interviewed on the 8th of March 1999 when he denied the allegations his defence being that of total denial.  Immediately thereafter his home was searched and a document was recovered which had been typed on the appellants word processor in April 1998, over four years after the alleged misconduct.  The document was ‘filed’ under the heading ‘a sex sheet to piss J right off’.  J referred to his wife, T’s mother.  The document was referred to during the trial as a sex poem for ease of reference but contained few if any of the characteristics commonly associated with poetry.  It is some 22 lines long and begins by repeating the word Sex seven times followed by 
‘... teenage girls are where its at panties off off off off yes they’re off this is it spread their legs legs legs apart creamy thighs so soft soft soft young pussy so wet wet wet wet wet and so young too young I am so hard so hard it hurts throbbing in anticipation Fuck them hard ... lick them lick them till they come … make them cry cry cry … for more more more so tight so tight it hurts but nice nice nice God I’m bad bad I love them need them dream them so bad God help me but I cant help myself I am consumed with lust it eats me burns me terrifies me I am on fire.  If only you knew you would run for your life for my life for life itself no mercy for the innocent no mercy none die laughing die laughing out loud.  SATISFIED’.

4.		This appeal turns upon the trial Judge’s decision to admit that document in evidence as part of the Crowns case at the very commencement of the trial.

5.		In deciding to admit the document in evidence Judge Rucker said at P12 B:

‘looking at the broader principle enunciated by the Lord Chancellor in the case of P it seems to me under the present circumstances of this case, it would be an affront to common sense if the jury are to be asked to decide whether anything took place giving rise to this indictment and then be deprived of the defendant’s fantasies in writing about teenage girls.

‘There are three particular parts of [Ex 3.] that make it compelling enough to admit.  It is certainly about teenage girls, but on the fifth line it says, ‘Not just so young but too young’.  It then goes on to describe an admittedly common enough sexual practice, that of cunnilingus, but there it is.  It is in there.  Right at the end the writer talks of ‘No Mercy for the innocent, no mercy!  I think that is capable of helping the jury.  The Defendant may offer an explanation for it, but putting it up against what it is anticipated T will say if she goes into the witness box, I think the prosecution can rightly claim that the jury should consider this evidence’.

6.		Finally by way of insight into the learned judge’s decision just before Counsels’ speeches to the Jury, Judge Rucker said:

“My reason for admitting that was simply because T cannot have known about this, and that was accepted; and does it not in a number of significant respects, reflect in an uncanny way what T says happened all those years before?  Is it a glimpse into this man’s soul, into his true sexual interests.  In that way does it not confirm that something did take place.  I shall then go on to deal with what the defence will no doubt say about it, that he has proffered an explanation.  It was years after the events, and had nothing to do with anybody except his wife.

MR BRABIN: [Prosecuting Counsel] Your Honour, I must admit, I had not proposed to say that, simply because …… and I did not do so when I opened the case – simply because it seemed to me that it was getting precariously near the question of proclivity”.

7.		Mr Macrae on behalf of the Appellant argues that for the very reason that was identified by his opponent namely because the document did no more than introduce into evidence the appellant’s propensity or proclivity for the type of conduct complained of, it should not have been admitted in to evidence.

8.		Mr Macrae relied in support of his submission upon three authorities of this Court all post-Boardman namely:

1)	R v Lewis [1983] 76 Cr App R 33.  In that case the trial judge admitted evidence that the Defendant had in his possession, documents, magazines, letters and posters obtained from the Paedophile Society.  The Defendant was convicted of offences of indecent assault involving the 10 year old twin daughters of his cohabitee.  The judgment given by Donaldson LJ (as he then was) indicated that evidence which could lead a jury to conclude that the defendant was likely or more likely to have committed the offences for which he was being tried may be adduced to rebut a defence of accident or innocent association but where the defence to the charge was a complete denial that events had occurred the incriminating material was not admissible.

2)	R v Wright [1990] 90 Cr App R.  The appellant, a headmaster had in his study a booklet ‘The incognito guide to Paris’ a document aimed at males with homosexual leanings, and in a house a grossly obscene video tape consisting of displays of buggery between two or more adult males.  The appellant faced charges of buggery and gross indecency and during his trial the trial judge admitted in evidence the ‘incognito guide’ on the grounds that its probative value outweighed its prejudicial effect.  During the Crown case he excluded the video but in due course allowed the appellant to be cross examined under s.1(f)(ii) of the Criminal Evidence Act 1898, the appellant having presented himself as a person of good character.  Mustill LJ (as he then was), read the judgment and at page 331:

‘One must begin by asking whether in a case where the issue is whether the act alleged by the complainant ever took place at all, evidence is admissible that the defendant had done similar acts in the past or could be shown through possession of incriminating articles or otherwise, to have a leaning towards such acts.

‘It is not hard to imagine legal systems in which such evidence would not only be admissible, but would be regarded as having high probative value.  Nevertheless, this has never been the policy of the English criminal laws, not so much on the grounds of logic, but because it is considered that to entrust it to a jury would be too great a risk ....  The principle is subject to exceptions as Lord Herschell acknowledged in Makin v Attorney General for New South Wales [1894] A.C. 57.  Thus if a person accused of indecently touching a child admits the contact but asserts that it was accidental, evidence of previous similar acts may be admitted because it is relevant to the issue of accident or design.  ...  See Gale (1987) (unreported) where a defendant who had taken indecent photographs of his young step daughter claimed that he had done so for artistic purposes at the instigation of his wife, and where it was held to have been proper to admit evidence that he had written pornographic fantasies to describe, in a manner which bore a close resemblance to the very type of incident which the girl had herself described, the sexual initiation of a young girl by her father ....  Although these exceptions are well established it is also quite clear that they are not brought into play through a denial that the acts in question ever happened at all’.

3)	B(RA) [1997] 2 Cr App R 88.  The appellant was charged with indecently assaulting his two grandsons.  His defence was a complete denial of any indecency.  He claimed that the boys had been put up by their mother to make the allegations.  At trial the judge admitted evidence of homosexual magazines found in the appellants possession.  Rose LJ giving the judgment of the Court in following Wright and Lewis:

‘Here it cannot be said that the Appellant raised any defences of the types we have mentioned.  ...  The authorities show that this is not permissible ground for admitting the evidence’. (page 91F)

9.		Judge Rucker was invited to rule upon the admissibility of exhibit 3 at the very outset of the trial.  He could of course have delayed his decision.  A number of events during the trial might have caused exhibit 3 to become admissible as an exception to the general rule in criminal proceedings that evidence of the accused’s bad character or criminal propensity is generally excluded.  If the cross examination of the complainant involved an imputation upon her character within the ambit of s. 1(f)(ii) of the Criminal Evidence Act 1898, or if the appellant claimed during this trial to be of good character or to have no interest in young girls the exhibit would become admissible.  Likewise if the appellant had claimed an innocent explanation for his alleged misconduct or that what occurred was an accident.  And the prosecution may anticipate defences, with the important qualification in Thompson -v- The King [1918] AC 221, where Lord Sumner observed at p232:
“The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.”

10.		Whilst there were a number of potential ways in which exhibit 3 might have become admissible Judge Rucker chose to admit the document ab initio notwithstanding the fact that it was made clear to him that the defence was that of simple denial.

11.		The appellants case can be stated very shortly.  Exhibit 3 was inadmissible since it established no more than the appellants propensity for the conduct complained of and the decisions in Lewis, Wright, and B(RA) were compelling in favour of exclusion.  For the Crown, Mr Brabin in his skeleton argument supplemented by argument raised five principal arguments:

12.		The document can be construed as an admission of Counts 2, 3 and 4.

13.		The document admits relevant similar facts.

14.		The document is admissible on the basis of relevance since it explains why the appellants attention to the complainant stopped when her periods commenced.

15.		It is capable of rebutting the Defendant’s assertion that the complainant had recently invented the allegation.

16.		The cases of Lewis, Wright, and B(RA) were wrongly decided.

17.		We deal with those contentions:

1)	Whilst exhibit 3 contains statements by the appellant adverse to the appellant we are quite unable to relate anything contained in exhibit 3 with the specific allegations contained in the indictment.  There is no reference to the complainant in exhibit 3 and the document itself was created in April 1998 whereas the last date in the indictment is February 1994.  We are simply unable to make a proper connection between exhibit 3 and the indictment.

2)	We have considered whether exhibit 3 proves any fact other than the fact that the applicant typed into his computer the information or words which comprise the document.  We cannot properly infer that the applicant has behaved in any way consistent with the language in the document.  To do so would be pure speculation.  He must of course have had the thoughts giving rise to the words and to that extent it would be a proper inference to draw (and we do so) that the applicant has a propensity or sexual proclivity for pre pubescent girls.  It is not possible however to properly infer that his thoughts have ever been translated into criminal misconduct.

3)	The complainant’s evidence was to the effect that the appellant ceased to show her attention when she began her periods.  The document refers to teenage girls and later ‘so young too young’.  In our judgment Exhibit 3 goes no further than demonstrate the appellant’s propensity for young teenage girls.  To admit the document to explain a discontinuation of attention is hardly probative of guilt and would not justify admitting the evidence.

4)	We are unable to see that the document could be properly admitted to rebut the appellant’s contention in interview that the complainant had recently invented her allegations.  Such a contention by the appellant in interview was no more than a denial of guilt.  Mr Brabin puts it this way:
“It is a remarkable and most unlikely coincidence that the complainant should make a complaint in March 1999 completely unaware of the contents of her step father’s computer since she was not living at home and could not know of the contents of the computer and yet 11 months earlier her step father the appellant had created exhibit 3.  It would thus be an affront to common sense to explain it on the basis of coincidence”

Such argument can always be raised when a person against whom a complaint has been made is found to be in possession of incriminating articles manifesting a propensity for the type of conduct complained of.

5)	The decision in Lewis has been heavily criticised by academics namely by T.R.S. Allen, lecturer in Law at Nottingham University at 99 LQR 348, by the Editors of Phipson (15th Edition) p373 and by P.B. Carter Fellow of Wadham College, Oxford at 48 MLR 37.  Since we propose to base our judgment upon the tests formulated in Boardman and D.P.P. -v- P it is not necessary to evaluate the criticism of the academics.  Similarly Mr Brabin points out that the decisions in Wright and B(RA) were based upon Lord Herschell’s well known dicta in Makin v Attorney General for New South Wales [1894] A.C. 57 rather than upon the speeches in Boardman.  Since we are to adopt the reasoning in Boardman and D.P.P. -v- P we do not seek to evaluate or indeed criticise the decision in Wright or B(RA).

18.		What then should be the test to be applied in determining the admissibility of Exhibit 3.  We have been greatly assisted by the judgment of Steyn LJ as he then was in R -v- Clarke [1995] 2 Cr App R 425.  In that case the appellant was alleged to have robbed a bank in April and he was stopped in a car two months later which contained a complete robbers kit.  Should this evidence have been placed before the jury?   Steyn LJ said this (page 433C):

‘The principle is that if such evidence is tendered solely to establish propensity to commit a crime, it is not admissible’.

‘There are dicta to the effect that evidence of the commission of other crimes and bad character is logically irrelevant.  That seems to be an odd way of putting the matter, because in the same way as good character can be relevant to innocence, bad character can be relevant to the question of guilt.  The real reason is not absence of relevance.  We think it is right that we demystify this corner of the law.  The evidence of propensity is excluded as a matter of law because it is regarded as unfair if it is adduced solely for the purpose of proving propensity.  Or the matter can be put differently: as a matter of policy the Court regards evidence tendered solely for that purpose as insufficiently relevant to permit its reception.

The important point that conveyed in the case of Boardman is that three of the Law Lords Lord Wilberforce, Lord Cross and Lord Morris emphasised that whether similar fact evidence was admissible or not depended simply and solely on its probative strength, and whether it had sufficient strength was in each case a matter of degree’.

19.	We must of course have regard to Lord Mackay’s dicta in D.P.P. -v- P [1991] 93 Cr App R 267 in which he said:
‘From all that was said by the House in Boardman -v- D.P.P.  I would deduce the essential feature of evidence which is to be admitted is that the 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’.

And later:
‘Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved.  Whether the evidence has sufficient probative value to outweigh its prejudicial affect must in each case be a question of degree’.

20.		In writing immediately post-Boardman at Vol 91 LQR p 198 L H Hoffmann (as he then was) accurately predicted that one further excursion to the House of Lords would be necessary before the law of similar fact would be established on a simple and rational basis.  He wrote then:
‘Now that Boardman has demonstrated that the admissibility of similar fact evidence depends solely upon its relevance, it can be seen that excluded similar fact evidence is indeed irrelevant, and irrelevant because it is not sufficiently relevant ....

	The balancing process which the court must perform is the same as in any other case, civil or criminal in which it is required to decide whether evidence is sufficiently relevant to be admissible.  Boardman has therefore done more than clarify what might be called the special theory of similar fact evidence.  It has shown the whole subject can be accommodated within the general theory of relevance’.

21.	We would accordingly deduce that the following propositions summarise the existing state of the law:
1)	Where evidence is tendered solely to establish propensity to commit a crime it is not admissible.
2)	Where the evidence achieves or is capable of achieving more ie repetitive situations or highly unlikely coincidences then it becomes relevant and admissible.
3)	There is a balancing exercise required of the Judge – is the probative force in support of the allegation sufficiently great to make it just to admit the evidence?

22.		In our judgment the document Exhibit 3 does no more than establish the appellant’s propensity to commit the crime alleged.  Had there been detail within the document sufficient to create a link with the complainant’s evidence then a contrary view would have prevailed.  Similarly if the document had been created sufficiently proximate in time to the acts complained of, we may have found the necessary probative strength to admit this evidence.  As it is we are satisfied that it went to propensity only and should not have been admitted as evidence.  Accordingly this appeal is allowed.  The conviction is quashed.