West Law Report

Admission of relevant bad character evidence

From The TimesMay 16, 2008

Admission of relevant bad character evidence
Court of Appeal, Criminal Division

Published May 16, 2008

Regina v Nguyen

Before Lord Justice Dyson, Mr Justice Maddison and Sir Richard Curtis

Judgment March 18, 2008

Where the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge, that could not have such an adverse effect on the fairness of the proceedings that the court ought not to admit such evidence.

The Court of Appeal, Criminal Division, so held in a reserved judgment when dismissing an appeal by Thu Van Nguyen against his conviction on October 2, 2006 in the Central Criminal Court, before Judge Goddard, QC, and a jury, of murder.

Mr Edward Rees, QC, assigned by the Registrar of Criminal Appeals, for the defendant; Mr Simon Denison for the Crown.

LORD JUSTICE DYSON said that on two separate occasions in December 2005 the defendant had been involved in incidents of “glassing”. On the second occasion the victim had died the next day.

The Crown was granted leave to adduce evidence of the first incident as evidence of bad character under section 101(1)(d) of the Criminal Justice Act 2003 on the basis that it was relevant to an important matter in issue between the defendant and the prosecution, namely, the question whether the defendant had a propensity to commit offences of the kind with which he was charged: see section103(1)(a). The defendant was convicted.

On appeal, it was submitted that that ruling was wrong because the Crown had made an informed and deliberate decision not to charge the defendant with the earlier assaults, but rather to rely on them as evidence of bad character in support of the alleged murder. It was argued that there had to be some limit to the Crown’s ability to introduce evidence of serious, untried offences as evidence of bad character under section 101(1)(d) and that the admission of the previous assaults was unfair.

Their Lordships did not accept that the mere fact that the Crown chose to rely on relevant bad character evidence which it had decided not to make the subject of a criminal charge could, of itself, have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The premise on which the appeal was based was wrong; accordingly, the appeal would be dismissed.

Solicitors: Crown Prosecution Service, Old Bailey Trials Unit.

R v HAMADI

Last Updated: 12:01am GMT 03/01/2008

Court of Appeal (Criminal Division)
Moore-Bick LJ, Wilkie J and the Recorder of Chester
December 18, 2007

Admissibility – Consent – Criminal evidence – Cross-examination – Prosecution evidence – Prosecution witnesses – Rape – Sentence length – s. 41 Youth Justice and Criminal Evidence Act 1999 – s. 41(5) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(c)(i) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(a) Youth Justice and Criminal Evidence Act 1999 – Art. 6 European Convention on Human Rights 1950

FACTS

The appellant (H) appealed against a conviction for rape and the consequent sentence of imprisonment for public protection with a minimum term of five years. The victim (V) had been on a night out and was separated from her boyfriend (B) following an argument. On her way home, H drew alongside her in his truck and offered her a lift, which she accepted. V alleged that once inside the truck, H drove to some wasteland and proceeded to rape her. H accepted that he sometimes drove around late at night seeking sexual activity, but denied that he had raped V. He asserted that V had initiated the sexual activity and that she had become angry when he refused to participate in certain activities. The accounts provided by V and H differed greatly, providing the jury with the sole issue of whom to believe.

The judge acceded to H’s application to adduce evidence of aspects of V’s previous sexual behaviour under the Youth Justice and Criminal Evidence Act 1999 s. 41. However, the judge refused to admit evidence from a witness (W) about a sexual relationship he had had with V approximately two months before the alleged rape when V was with B. V had stated during cross-examination that she had never had relations with other people whilst seeing B. The judge ruled that W’s evidence did not have any probative value.

H submitted that

  1. the judge erred in excluding W’s evidence to the effect that V did have sexual relations with other men whilst she was seeing B and that, as a consequence, his conviction was unsafe. He argued that V’s assertion in cross-examination fell within s. 41(5) of the Act as evidence adduced by the prosecution, so that W’s evidence should have been admitted to prevent the jury being misled as to V’s sexual inclinations. Alternatively, H argued that events described in W’s evidence were similar to that which occurred in the instant case so that the latter ought to have been admitted under s. 41(3)(c)(i) of the Act;
  2. the judge was wrong to conclude that B posed a significant risk of serious harm to the public, and argued that a notional determinate sentence of 10 years was manifestly excessive.

ISSUE

Whether evidence provided by a prosecution witness under cross-examination by defence counsel was not evidence to which the Youth Justice and Criminal Evidence Act 1999 s. 41 was aimed when given its natural meaning, and could not be extended to cover such evidence.

HELD (appeal allowed in part)

(1) The test of admissibility to be applied under s. 41(3)(a) of the Act was whether the evidence sought to be adduced was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial required by the European Convention on Human Rights 1950 Art. 6.

The wider principle was that the importance of protecting complainants from indignity and humiliating questions to which s. 41 was directed had to give way to the right to a fair trial, R v A (Complainant’s Sexual History) [2001] UKHL 25, [2002] 1 AC 45 considered. However, in R v A, the application was made by the defendant in relation to previous sexual intercourse he had had with the complainant. Allegations of a previous consensual relationship with an accused raised considerations of a different nature to that of a previous relationship with a third party, R v White (Andre Barrington) [2004] EWCA Crim 946, (2004) 148 SJLB 300 considered.

It was clear that V’s evidence that she was faithful to B at all times in their relationship amounted to evidence about her sexual behaviour, but it was questionable as to whether it fell within s. 41(5) of the Act as asserted by H. In the context of the instant case, “evidence adduced by the prosecution” within s. 41(5) of the Act, given its natural meaning, meant evidence placed before the jury by a prosecution witness as part of the evidence-in-chief and of other witnesses in the course of cross-examination by the prosecution. It did not naturally extend to evidence given by prosecution witnesses under cross-examination by the defence. Therefore, it could not be extended to cover all evidence given by prosecution witnesses as contended for by H. Further, the similarities identified by H could not reasonably be explained as a coincidence having regard to the background to the case, and the evidence was not truly probative in relation to the issue of consent.

(2) Before his conviction, H was a man of good character with a stable family background and had not demonstrated any pattern of offending. However a pre-sentence report concluded that H remained at a high risk of repeating similar offences in the light of H’s own description of his nocturnal activities. It was inappropriate to interfere with the conclusions of a sentencer where the sentencer accurately identified the relevant principles and applied his mind to the relevant facts. However, the aggravating features identified by the judge were not so significant as to warrant the minimum term imposed. Accordingly, the minimum term would be reduced to four years’ imprisonment.

Edward Fitzgerald QC and Paul Taylor (instructed by Michael Henderson & Co) for the appellant. Bruce Houlder QC and Timothy Gittins (instructed by Crown Prosecution Service) for the respondent.

R v LOWE

Posted in character, Jury, Res Gestae, s101 Criminal Justice Act, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 03/01/2008

Divisional Court
Dyson LJ, Henriques J
December 14, 2007

Bad character – Jury directions – Res Gestae – Unsafe convictions – Failure to direct jury – Appropriate bad character direction – s. 101(1)(c) Criminal Justice Act 2003 – s. 101(1)(d) Criminal Justice Act 2003

FACTS

The appellant (L) appealed against a conviction following trial by jury for rape. L had been in a relationship with his victim (V) and they had a young child together. V alleged that L had twice forced her to have sexual intercourse. At trial the Crown applied for leave to adduce bad character evidence and attached to the application a copy of an earlier statement made by L.

The judge granted the application pursuant to the Criminal Justice Act 2003 s. 101(1)(c) and s. 101(1)(d). Evidence was allowed concerning four alleged examples of L’s previous violent and aggressive behaviour. L addressed all four allegations, mainly by way of denial. In his summing up the judge included the incidents in his narrative of the evidence together with L’s responses.

However he decided not to bring the jury back for a further specific direction as to how to approach and utilise the evidence adduced pursuant to the bad-character ruling as the ruling had served simply to add to the evidence as to the history of the relationship. L submitted that the judge wrongly regarded each of the incidents as in effect part of the res gestae so that their admission did not call for specific directions. He further contended that the failure to give a direction to the jury as to their approach to the bad character evidence amounted to a material irregularity imperilling the safety of the conviction.

ISSUE

Whether the judge’s failure to give an appropriate direction to the jury in relation to the approach that should be adopted when considering evidence adduced of L’s bad character rendered the resulting conviction unsafe.

HELD (appeal allowed)

The judge was in error and there should have been

  1. a bad-character direction encompassing particular elements such as identification of the incidents, evidence of which had been adduced pursuant to L’s bad character ruling;
  2. a direction that, with respect to each incident, the jury should decide whether the facts as alleged by the Crown had been proved so that they were sure of them to the criminal standard of proof;
  3. a direction that, with respect to any incident not so proved, the evidence should be put aside and accorded no significance;
  4. a direction as to the potential significance of any incident that had been proved, in the instant case that the incidents might throw light on the relationship between V and L and thus bear upon the potential for consent on her part to his sexual advances;
  5. a warning against necessarily according the incidents any significance if an alternative construction served to cast doubt on the construction contended for by the Crown and also against attaching too much weight to the evidence.

The original application was unspecific and of a “scattershot” nature invoking the full, long witness statement without condescending to the specifics. The ruling was similarly non-specific. Had the identification of the bad character evidence been specific from the outset, then minds would more readily have been focused on what was required by way of jury direction and the matter would not have been for consideration as an afterthought. The bad character direction rendered the conviction unsafe and the conviction was quashed.

Julia Smart (instructed by Criminal Appeal Office) for the appellant. J Dawes (instructed by Crown Prosecution Service) for the respondent.