Court of Appeal
| Published date | 01 November 1994 |
| DOI | 10.1177/002201839405800403 |
| Date | 01 November 1994 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
SIMILAR FACT EVIDENCE AS CORROBORATION
RVAnanthanarayan
Aconsultant psychiatrist was convicted of offences of indecent assault
against four nurses or care assistants in hospitals and other institutions. At
his trial, the judge ruled that the evidence of the complainants was capable
of offering mutual corroboration: see R v Ananthanarayan (1994) 98
Cr App R 1.On appeal, twoquestions wereraised. First, sincecorroboration
cannot rest on evidence which is 'contaminated', by what tests is 'contamina-
ted' to be judged? Secondly, is it for the judge or the jury to decide the
question whether there is a risk that evidence of any complainant was
contaminated? The assaults in this case were confined to lightly touching
the complainants with the hand or leg and, on conviction, the appellant
received a conditional discharge. And it was only after one complaint had
been made (long after the events in question) that the other complainants
came forward.
The principal ground of appeal wasthat the judge was in error in directing
the jury that the evidenceof the four women was mutually corroborative.
It
was also argued that the counts ought to have been severed, but the
determination of that question obviously depended on that of the question
whether the evidence of each corroborated the others. The question
whether the evidence was similar fact evidence would also become of
importance only in relation to the question of corroboration, so that it was
unnecessary on the present occasion to consider that as a separate issue.
The appeal therefore depended on whether the question whether there was
or was not corroboration should have been left to the jury, however correct
the direction as to the nature of corroboration may have been. The judge
had called on the jury to decide whether they were sure that the four women
had not 'put their heads together' to make false or exaggerated complaints
or had made their complaints as a result of hearing of other people's
allegations. This
test-that
the evidence of each complainant must be
'independent'
-was
obviously correct; but the appellant submitted that the
judge should not have permitted the jury to consider whether the evidence
was capable of amounting to corroboration, at all. Two reasons were
advanced. First, there was a real risk that
anyone
complainant's evidence
might have been 'contaminated' by the evidence of the others; and, secondly,
quite apart from contamination, the evidence of
anyone
witness was not
capable in law of corroborating that of any other. This second submission
was based on the proposition that the acts alleged by the women were so
trivial that theydid not amount to indecent assault at all, and that the jury
should have been directed that, to amount to corroboration, any evidence
would have to be that of an indecent assault. The court, however, rejected
this as a 'pernicious' approach, since-it assumed that women have to put up
with minor indecent assaults. The court therefore held that, apart from
336
Court
of
Appeal
contamination, the evidence
of
each could have corroborated that of the
others.
Was there a risk
of
contamination?
It
was submitted that, as the women's
complaints were made at the same time and at a considerable time after the
alleged events, there must be said to be a risk that the evidence was
contaminated, the more particularly in view
of
the fact that three of the
complainants did not make any complaint until immediately after the first
complaint was made. A further ground
put
forward by the appellant was
that the social services department
of
the local authority was said to have
gone round looking for complaints against the appellant. The Court of
Appeal agreed that upon these bases there was a 'real possibility' that the
complaints which ultimately emerged were not truly independent of one
another. As the judge's direction as to what could amount to corroboration
could not be impeached, the question for the court was whether he was
entitled to direct the jury on the question at all. The authorities establish
the proposition that if there is 'a real chance', or 'a real danger' or 'a real
possibility' that there has been collusion between the makers
of
two or more
complaints, one cannot corroborate the other: see R v Kilbourne
[1973]
AC
729 and R v Boardman
[1975]
AC 421 and the more recent applications of
the pronouncements
of
the House of Lords in those cases in
DPP
vP
[1991]
2 AC 447 and R v Brooks (1991) 92Cr App R 36.
Whose function is it to decide whether there is this 'real possibility'
of
'contamination'? Laws J stated that 'elementarily', it is always the judge's
function to decide what evidence is admissible before the jury'.
It
follows
that 'where a question of admissibility depends upon the resolution of a
question
of
fact, it is for the judge to resolve it'. Thus, for instance, where
the question
of
the admissibility
of
a confession depends upon whether the
Codes issued under the PACE Act 1984 have been followed, the judge must
decide the question of fact for
himself-as
judges frequently did before
electronic recording was introduced. The court therefore concluded that, as
corroborative evidence depends entirely upon its independence of the
complaint which is to be corroborated, the above principle should apply.
The court pointed out that, in deciding whether a risk
of
contamination
exists, the judge is doing no more than decide a question, which is always
for him to decide, namely that
of
whether the evidence is admissible.
Although dicta are to be found in support of this proposition (in the above,
and other, cases), it is to be remarked that in Rv
Johnnsen
(1977) 65
Cr App R 101, Lawton LJ suggested that it is for the jury. to decide the
question, if any factual issue is raised in respect
of
it, adding 'that is why it
is common practice to direct juries about it'. In the present case, however,
the court concluded that those remarks were confined to cases in which
there was an allegation
of
collusion to concoct a false story, so that they did
not apply to every case of corroborative evidence. RvJohnnsen was
primarily concerned with the question
of
severance (though the court here
conceded that that seemed to make no difference). Perhaps
of
more
importance is the fact that Lawton LJ's dicta were speculative, since in that
case, the possibility
of
a conspiracy had not been suggested. On the present
occasion, the court was able to distinguish the two cases on the ground that
the difference between 'a real risk' (with which the court was here concerned)
337
Journal
of
Criminal Law
and 'a speculative risk' (with which the earlier case was concerned) is one
which is well recognised in law, and was sufficient to allow what was said
by Lawton LJ to be considered inapplicable in the present circumstances.
The court therefore concluded that there was nothing to stand in the way
of
its holding the view that if 'the judge forms the view that there is a real
risk of contamination, he has to act on that view and direct the jury that no
possibility of corroboration between the witnesses in question arises'. The
most that the earlier case decides is that where there is a mere possibility,
but not a real risk, the judge may in fairness direct the jury that, if they
think that there is more than a possibility of contamination, they should
not treat the evidence (as they might otherwise have done) as corroboration.
Even that, as Laws Jremarked, is against the logic of the principle that it is
the task of the judge to determine questions
of
the admissibility of evidence.
The court disagreed with Lawton LJ's suggestion that it is for the judge to
decide whether he leaves such questions for the jury. The court stated
bluntly that 'questions of admissibility are not matters for the discretion of
the judge', for it is for the judge to decide the question one way or the other,
as a matter of law. Once he has decided that there is a real risk of
contamination, he possesses no discretion to admit the evidence. The court
therefore equally condemned the suggestion made by Stuart-Smith LJ in R
v Bedford (1991) 93 Cr App R 113 and the doubts expressed by Mustill LJ
in R v Brooks (1991) 92 CR App R 36, where it was stated that the question
whether the evidence should be ruled out 'is at present debatable'. The court
here concluded its judgment with the proposition that 'it should now be
made clear that the question whether such evidence should be ruled out or
not is one which goes to the legal admissibility
of
that evidence'. The test is
whether there is 'a real possibility' that the evidence is
'not
independent',
whether because of concoction or because
of
publicity or other innocent
contamination. On finding such risk, the judge cannot let the evidence go to
the jury.
RELEVANCE OF VIDEO EVIDENCE
R v Sidhu
The police obtained evidence
of
a plot entered into by terrorists to set up an
independent Sikh state in India. Undercover officers supplied explosives to
two persons believed by them to be part of the conspiracy. These explosives
were taken to a house which was visited by the appellant in R v Sidhu (1994)
98 Cr App R 59 at the time the explosives were there. The appellant was
arrested and charged with conspiracy with the two others to possess an
explosive substance, Semtex, in such circumstances as to give rise to a
reasonable suspicion that it was not in their possession for a lawful object.
On the basis
of
considerable circumstantial evidence and, in particular, of a
videotape featuring the appellant, he was convicted. He appealed on the
ground that the admission of the videotape in evidence was a material
irregularity. The video, which was apparently made in
North
India, showed
the appellant with a group of terrorists, all heavily armed, practising the use
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