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 30th
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.