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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Benabbou, R. v  EWCA Crim 3088 (16 May 2012)
Cite as:  EWCA Crim 3088
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London, WC2(A 2LL
B e f o r e :
LORD JUSTICE HUGHES
MR JUSTICE HEDLEY
MR JUSTICE MADDISON
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Mr S Foster appeared on behalf of the Crown
Crown Copyright ©
"Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment."
"The manifest intention of the Act is that charges which either are founded on the same facts or relate to a series of offences of the same or a similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow although the judge has a discretionary power to direct separate trials under section 5(3). The judge has no duty to direct separate trials under section 5(3) unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice."
The judge referred to that authority amongst others in his ruling and concluded that the indictment should not be severed. He attached particular importance to his conclusion that evidence relating to either of the two alleged offences was or might well be admissible in relation to the other. He expressed himself in this way:
"Of course one has to be aware of the prejudice to the parties, but equally nowadays one also has to have regard to the wider admissibility of evidence than the law permitted at the time of the authorities that Mr Whitehouse relies on. The statutory provisions contained in the Criminal Justice Act 2003 would enable the Crown to rely on bad character evidence if they could satisfy the test that it would meet for showing a propensity to commit offences of this type, to be able to say that it is no coincidence that a defendant says that it wasn't him, or he didn't do it or behave in a particular way. It seems to me, without deciding it, that there would be a powerful argument for saying that that evidence would be admissible under the current law. That obviously has to have a significant bearing if it would be admissible and would be admissible in this case. It seems to me that it is much better that the two counts are tried together at the same time.
Of course, as in any case, one has to carefully direct a jury to address issues separately and only to take into account one in relation to another if they are sure that the first count is made out and the other considerations which are set out in the guidance which I won't repeat, set out by the JSB that a judge nowadays has to direct a jury about, are all met. It seems to me that they would be potentially admissible in this way and would be taken into account, and I am bound to say that at the end of the day it seems to me that there is a very strong case for joining both indictments together, and there is no undue prejudice in so doing. Accordingly I will give leave to the Crown to join the two indictments as they stand into a single indictment."
"We do not think that the mere fact that evidence is admissible on one count and inadmissible on another is by itself a ground for separate trials because often the matter can be made clear in the summing-up without prejudice to the accused."
"There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged (compare DPP v P  2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity."
The judge concluded that there was a sufficient similarity between the earlier rape and the current offences, in particular that of assault by penetration, to render evidence of the earlier rape admissible. As to the fairness of the proceedings, the judge attached significance to the fact that the appellant was now on trial for two sexual offences of which the second was the more serious and as to which identification issues did not arise. As to the time that had elapsed since the rape, the judge observed that following his conviction for the rape the appellant had been in custody until October 2008. The judge also referred to the fact that there were some similarities between the present case and that of P, one of the appellants in Hanson and others in whose case this court upheld the admission of evidence of bad character in the form of a previous conviction of a sexual offence.
"Members of the jury, as I said yesterday, you will be asked to go and see if you can reach decisions on each of these two counts separately. The evidence, as I said yesterday, in each one is separate and a decision on each one is not necessarily the same."
The judge then went on immediately to give the jury a direction to the effect that they must reach unanimous verdicts.