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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Shaw, R v [2018] NICA 38 (7 November 2018) URL: https://www.bailii.org/nie/cases/NICA/2018/38.html Cite as: [2018] NICA 38 |
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Ref: DEE10751
Neutral Citation No: [2018] NICA 38
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Delivered: 7/11/2018
DEENY LJ (delivering the judgment of the court)
Introduction
Prosecution case
"You will have to decide whether the allegations of C are true and whether the defendant abused C as he alleged, or whether it is the denial of the accused that is correct."
"If you are not satisfied beyond a reasonable doubt that the defendant abused C in this way then you simply ignore this, you should leave this evidence aside and you should not consider it further. If, however, you are satisfied that the defendant sexually abused C in this way, in the way that he has described, then you are entitled to go on and consider whether this assists you in determining whether the defendant committed these offences against FH. The defendant denies that he abused C or FH and he says that each of these individuals has made up this evidence and that it is simply untrue. On the other hand, there are similarities in the defendant's behaviour as described by each of these due witnesses. They say that they were approximately 11 years of age, that the defendant involved them in outdoor activities, that he was in a position of trust and control over them, they say that he touched or attempted to touch their penises and to masturbate them in a similar way and the prosecution suggest to you that it is no coincidence that each of these boys have made similar, but otherwise unconnected, complaints against the defendant's behaviour. The prosecution say that the fact that two boys make similar complaints with such detail means it is more likely that these complaints are true and that the evidence of each of these two complainants is capable of lending support to the other. You are entitled to view the evidence in this way but I should explain to you the approach that you should adopt. First, you must consider whether the complaints made by each are truly independent of one another. I can tell you that there is no connection between either C or FH and no suggestion of any sort has been made that they have got together to make up a story between them. Second, you need to assess the value of the evidence. If you have decided that the witnesses are independent, the closer the similarities between the complaints, the less likely it is that they can be explained away by a simple coincidence. It is for you to decide the degree to which the evidence of C assists you to assess the evidence of FH, that is a matter for you to judge."
Extension of Time
Grounds of Appeal
(i) That the Learned Trial Judge ("LTJ") erred in admitting evidence of non-conviction bad character (the allegation of C) for the purpose of establishing a propensity on the part of the applicant to sexually abuse young children.
(ii) The LTJ erred in admitting evidence of bad character, namely that the applicant had breached his bail terms. Though it may have been evidence of bad character in that it amounted to a breach of bail it was not evidence that it could ever have been considered sufficient to prove a sexual interest in young persons.
(iii) If the allegation of C was properly admitted to lead evidence of complaint by C an application was required to be made pursuant to Article 24 of the 2004 Order. This was not done and thus the evidence of his complaint was wrongly admitted to trial.
(iv) The LTJ misdirected the jury in law by directing them that in proving the complainant's complaints and C's allegations to the criminal standard that the evidence of each was capable of being treated by the jury as capable of lending support to the other.
"Bad character
3. References in this Part to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—
(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.
Abolition of common law rules
4.—(1) The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished.
(2) Paragraph (1) is subject to Article 22(1) in so far as it preserves the rule under which in criminal proceedings a person's reputation is admissible for the purposes of proving his bad character.
Defendant's bad character
6.—(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—
(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person's character.
(2) Articles 7 to 11 contain provisions supplementing paragraph (1).
(3) The court must not admit evidence under paragraph (1) (d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(4) On an application to exclude evidence under paragraph (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.
Matter in issue between the defendant and the prosecution
8.—(1) For the purposes of Article 6(1) (d) the matters in issue between the defendant and the prosecution include—
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect."
Ground 2
Ground 3
"24.—(1) This Article applies where a person ("the witness") is called to give evidence in criminal proceedings.
…
(4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if—
(a) any of the following three conditions is satisfied; and
(b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth.
…
(7) The third condition is that—
(a) the witness claims to be a person against whom an offence has been committed,
(b) the offence is one to which the proceedings relate,
(c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,
(d) the complaint was made as soon as could reasonably be expected after the alleged conduct,
(e) the complaint was not made as a result of a threat or a promise, and
(f) before the statement is adduced the witness gives oral evidence in connection with its subject matter."
Further Grounds
Ground 1
"4.—(1) The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished.
(2) Paragraph (1) is subject to Article 22(1) in so far as it preserves the rule under which in criminal proceedings a person's reputation is admissible for the purposes of proving his bad character."
"Is it necessary for the prosecution relying on non-conviction bad character evidence on the issue of propensity to prove the allegations beyond a reasonable doubt before the jury can take them into account in determining whether the defendant is guilty or not?"
"23. Makin, together with the later cases of R v Kilbourne [1973] AC 729, R v Boardman [1975] AC 421 and Director of Public Prosecutions v P [1991] 2 AC 447, established the common law rule that, in order to be admissible, similar fact evidence had to go beyond simply demonstrating a criminal tendency (or propensity). It had to show sufficient pattern of behaviour, underlying unity or nexus to exclude coincidence and thus have probative force in proving the indicted allegation. In Scotland the same distinction was long recognised: see Moorov v HM Advocate 1930 JC 68. Clearly, the evidence in Makin was relevant in that, if accepted, it had, at least, the potential to show that the defendants were more likely to have killed the child. The decision in that case does not address the issue which is central to this appeal, however, since the question of how evidence of similar facts, if properly admitted, should be treated, did not arise. The case is of interest only as part of the background to the exception to the general common law rule that evidence of antecedent misconduct is not admissible unless shown to be directly relevant to an issue in the trial. Since, as I shall discuss below, evidence of propensity or similar fact evidence is, essentially, extraneous to that which is directly probative of the accused's guilt of the charges on which he stands trial, the case can be made that it should be subject to the conventional criminal standard requirement of proof beyond reasonable doubt. And, it may be said, this is especially so where the claims in relation to similar fact evidence or propensity are disputed."
"What of the situation where there are several disparate instances of alleged antecedent conduct, said to demonstrate propensity or evidence of similar facts?"
"The respondent is unquestionably right in the submission that neither the 2003 Act nor the 2004 Order stipulates that only the common law rules as to the admissibility of bad character evidence have been abrogated. Common law rules as to how such evidence should be evaluated have not been affected, the respondent says."
"that the proper issue for the jury was whether they were sure that the propensity had been proved beyond a reasonable doubt; that when a sole incident was relied on as showing propensity the facts of that incident had to be proved to the criminal standard; but that, where there were several incidents relied on for that purpose, the jury did not have to be convinced of the truth and accuracy of all aspects of each of the alleged incidents, and the facts of each individual incident did not have to be considered in isolation from the others."
"I am satisfied that the proposed bad character should be properly admitted through the gateway of Article 6(1)(d) and that to do so will not impact inappropriately upon the defendant's right to a fair trial."
"At common law, evidence of previous misconduct ("similar fact evidence") was admissible to prove identity, or to rebut a defence of mistake, accident or innocent association or to rebut a suggestion of mistake or fabrication on the part of the complainant or complainants. Evidence that was admissible at common law under this principle undoubtedly remains admissible under the 2003 Act."
Consideration
"8.—(1) For the purposes of Article 6(1) (d) the matters in issue between the defendant and the prosecution include—
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect."
(Emphasis added)
"If you are not satisfied beyond a reasonable doubt that the defendant abused C in this way then you should simply ignore this, you should leave this evidence aside and you should not consider it further. If, however, you are satisfied that the defendant sexually abused C in this way, in the way that he has described, then you are entitled to go on and consider whether this assists you in determining whether the defendant committed these offences against FH. The defendant denies that he abused C or FH and he says that each of these individuals has made up this evidence and that it is simply untrue. On the other hand there are similarities in the defendant's behaviour as described by each of these two witnesses. They say that they were approximately 11 years of age, that the defendant involved them in outdoor activities, that he was in a position of trust and control over them, they say that he touched or attempted to touch their penises and to masturbate them in a similar way and the prosecution suggests to you that it is no coincidence that each of these boys have made similar, but otherwise unconnected, complainant's against the defendant's behaviour. The prosecution say that the fact that two boys make similar complaints with such detail means it is more likely that these complaints are true and that the evidence of each of these two complaints is capable of lending support to the other."
Propensity
"(an) inclination, (a) tendency, (b) leaning, bent, disposition …"
Chambers English dictionary describes it as:
"inclination of mind; favourable inclination; tendency to good or evil: disposition: tendency to move in a certain direction."
"[15] In deciding whether these convictions show a propensity to commit murder and to make it more likely that the defendant, Maguire, did, commit the murder, one has to look at the nature of the killing here. It is not by poisoning. It is not by hiring a contract killer. It is not by terrorists in the pursuit of some alleged political aim. It is not by drowning or by motor vehicle. It is the application of brute force to another human being, in this case with a hammer.
[16] In that context it seems to me that previous assaults or, to a degree, threats of assault, do demonstrate a propensity to assault; that is undeniable. The situation here is that the fatal attack on Mr Ferguson was an assault at one extreme of a scale of gravity of assault. The opposite end of that scale is a simple threat to punch someone which in law is an assault. In one sense at least, therefore, the history of wounding, assaults and threats are of the same kind as this type of murder. It seems to me that decisions of this sort are likely to be fact specific and I note the express finding of the Court of Appeal in England that it will be slow, as our Court has been slow, to interfere with the exercise of judgment by a Trial Judge in these circumstances."
Ground 4
Conclusion