Arthurton (Errol) v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Dame Sian Elias |
| Judgment Date | 27 May 2004 |
| Neutral Citation | [2004] UKPC 25 |
| Court | Privy Council |
| Docket Number | Appeal No. 67 of 2003 |
| Date | 27 May 2004 |
[2004] UKPC 25
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Rodger of Earlsferry
Sir Swinton Thomas
Dame Sian Elias
Privy Council
[Delivered by Dame Sian Elias]
Errol Arthurton appeals by special leave from a decision of the Eastern Caribbean Court of Appeal (British Virgin Islands) (Singh, Redhead JJA and Georges JJA (Ag), 15 July 2002) dismissing his appeal against conviction on two counts of unlawful sexual intercourse with a girl under the age of 13. The grounds of appeal are that there was a miscarriage of justice rendering the conviction unsafe because the trial judge first declined to discharge the jury when evidence prejudicial to the defence and of no probative value was given by a police witness and then failed to direct the jury in a manner which removed the prejudice caused by the evidence.
The complainant was 11 years old at the time of the events giving rise to the charges in 2000. Her mother had two other younger children of whom the appellant was the father. Although the mother was no longer in a relationship with the appellant, the complainant and her sisters on occasions would stay with him. The offending was said to have occurred on two of those occasions. Apart from evidence of opportunity, prompt complaint, and medical evidence consistent with the complainant's account of what had occurred, the prosecution case against the appellant at trial effectively depended on the uncorroborated evidence of the complainant. The appellant, who had no previous convictions, had denied having sexual intercourse with her in his police interview.
The trial which gives rise to the present appeal was a retrial. The Court of Appeal had set aside the appellant's earlier conviction in part because defence counsel had deprived the appellant of a good character direction from the judge by failing to lead evidence that he had no previous convictions, and because no application to discharge the jury had been made when a prosecution witness had given hearsay evidence that the appellant had said to the police, when interviewed, "I was accused of something like this before and I got away".
It was clear from the history of the matter and the fact that the prosecution case turned on the credibility of the complainant that in the new trial the appellant's good character would be a significant part of his defence. Once absence of previous convictions is established, the trial judge is under a duty to direct the jury as to its relevance. The jury must be directed that the accused's good character is relevant in considering whether it is likely that he would have committed the offence; and, where the credibility of the accused is in issue (either because he gives evidence or because he has made an exculpatory statement), the jury must also be directed that his good character is relevant in considering whether he is to be believed: see Barrow v State [1998] AC 846, applying R v Vye [1993] 1 WLR 471 and R v Aziz [1996] AC 41. It was therefore necessary for the defence to ensure there was evidence before the Court that the appellant had no previous convictions and that he had denied having had sexual intercourse with the complainant in his interview with the police. It was also critical to ensure that the new trial was not put in jeopardy by inadvertent disclosure of the appellant's acknowledgement during the police interview that he had been arrested before on suspicion of wrongdoing of a similar character. The fact of arrest for suspected similar offending was of no probative value. If disclosed, it was likely to undermine the good character evidence and risk unfairness through baseless propensity reasoning.
Defence counsel foreshadowed an objection to the admissibility of the entire question and answer interview in which the acknowledgement of the unrelated arrest had been made. Counsel for the Crown agreed to its exclusion. The defence however needed to have in evidence the fact that during his interview the appellant had denied having intercourse with the complainant.
In the absence of the jury both counsel indicated to the trial judge that they had agreed that evidence of the question and answer interview would not be led. Instead, they proposed that defence counsel in cross-examination of the interviewing officer, Sergeant Vanterpool, would obtain from her confirmation that the appellant had denied the allegations when interviewed and that he had no previous convictions. The judge, who had expressed some anxiety that the same mistakes which had led to the retrial should not be made again, agreed to that course. The transcript of the hearing on the point includes the following exchange, apparently about alerting Sergeant Vanterpool to the questions defence counsel intended to put to her:
"Mr Compton [counsel for the defence]: I am quite concerned for Sgt.Vanterpool to be told this. I want to ask about the good character of this Defendant.
The Court: What does she know about that? You can ask her if she knows that.
Mr Compton: He has no previous convictions. Secondly, that he said to her that he had not committed the offence. Thirdly, I just want to put to her one or two matters that the Defendant says he said to her about DNA."
In conformity with the course of action discussed, Crown counsel did not lead evidence from the Sergeant about the interview with the appellant. Her evidence in chief was principally concerned with her dealings with the complainant. But the attempt by defence counsel to obtain confirmation through cross-examination that the appellant had no previous convictions had the consequences that gave rise to the present appeal.
The Sergeant acknowledged that she was "the officer in the case" and that at the time of giving evidence she held the rank of Acting Inspector. She was asked by defence counsel to confirm that "Errol Arthurton is a man of good character, has no previous convictions". There was an objection by counsel for the Crown, who seems from his later explanation to have been concerned that unless the question was confined to previous convictions alone there was a risk that the witness might refer to the appellant's earlier arrest. The Sergeant answered the question asked, saying that, as far as she knew, the appellant was a man of good character. When asked to confirm that he had no previous convictions, however, she answered "I really can't say".
The answer was not as expected. It led to the following exchanges:
"Mr Compton: I did ask that you be shown his antecedent history before, and have you not seen his antecedent history?
The Court: Have you seen his antecedent history?
Witness: No, Ma'am.
(Document passed to the witness)
Mr Compton: Did you not check it as the officer in the case?
Court: Did you check his antecedent history?
Witness: My ma'am, I checked with Sergeant Alleyne. I know he was arrested and charged for a similar offence.
Mr Welch [Counsel for Crown]: Wait, wait.
The Court: Have you seen his antecedents?
Witness: No, My Lord.
Mr Compton: There's a matter to raise in the absence of the jury."
In the absence of the jury, counsel for the defence applied for discharge of the jury on the basis that the disclosure that the appellant had earlier been "arrested and charged for a similar offence" was so prejudicial that the trial could not fairly continue. He pointed out that he had raised the matter earlier in the absence of the jury to avoid such result and had expected counsel for the Crown to have spoken with the officer. He made the submission that the response of the officer in those circumstances was "gratuitous".
Counsel for the Crown accepted the prejudice to the defence and confirmed that he had understood the request to him to speak to the officer to avoid such result. He had warned the officer not to make any reference to the interview and believed he had made it clear why that was necessary. While he had not specifically discussed the question of previous convictions with the officer, he had expected that, as the investigating officer, she would have been aware of the absence of previous convictions. He had not foreseen any danger of the disclosure which eventuated. Counsel accepted that the remark was prejudicial and suggested that, if the prejudice could be sufficiently overcome by a direction to the jury, it could only be by a direction "in extremely emphatic terms",
"not just simply say to the jury, ignore that remark or forget about what you last heard from the witness, but this Court must go very, very far to tell the jury what they heard was totally irrelevant."
It seems from the transcript of the discussion that the judge may have taken the view that the questions put by defence counsel had invited the officer to speak from her own knowledge and may have been dangerously loose. She deferred her decision on the application until the next day, to enable further submissions to be made and so that the transcript of the day's hearing could be available.
At the hearing the next morning, defence counsel emphasised that the disclosure had not come about as the result of fault on the part of the defence. He submitted that the reference to arrest for "similar offending" was much more damaging in the context of a trial for sexual offending than a reference to previous unrelated offences would have been. He maintained that the prejudice could not be overcome by directions. They could only highlight the prejudicial material. Counsel for the Crown accepted that the "very unfortunate and totally unanticipated" remark of the officer was "highly prejudicial". He suggested it could be countered, however, by a good character reference "in its strongest terms" and a direction that the...
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