Jury Hearing Evidence it Should Not Have Heard
| DOI | http://doi.org/10.1177/002201839906300521 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
The
Journal
of
Criminal
Law
8.
It
is for the court to protect the applicant's interests, particularly in
cases in which the applicant will
not
be heard (and may well
not
know
all
that
is going on).
It may be thought
that
these guidelines can be expected in practice to
smoothe
out
the difficulties of financial institutions caught by s
930;
but
it must be remembered that the dilemma is caused by the legislation,
not
by the courts or the parties, so that it is only the legislature
that
can
remove
them
by deciding which of the competing principles mentioned
above is to be regarded as paramount.
Jury
Hearing Evidence it
Should
Not Have Heard
Rv
Docherty
[1999] I Cr App R 234
The appellant was charged on an indictment containing five counts
charging rape, buggery and indecent assault on his step-daughter, He
was acquitted on those charges, by the direction of the judge or by
the
jury;
but
the judge
had
given leave to amend the indictment to include
afurther charge of indecent assault on the same complainant,
and
on
that
count he was convicted and sentenced to three years' imprison-
ment. The step-daughter was an epileptic aged 48 years
who
suffered
from learning difficulties. The appellant's defence was that
the
charges
were a tissue of lies concocted by his wife (the
mother
of the complain-
ant)
and
her
sister,
who
was the
author
of the conspiracy and
who
had
along-standing grudge against him. The sole evidence against
him
was
that of the complainant
and
that of the doctor,
who
stated
that
the
appellant's semen was found at the entrance to the complainant's rec-
tum
and vagina,
but
that
none
was found inside
her
body. The evidence
of a forensic scientist was that the DNA analysis gave a 1 in
880
chance
that the swab originated from someone else.
In the course of
her
examination in the witness box, the wife's sister
said that she had asked the victim whether the appellant
had
ever
touched her.
When
counsel asked
her
why she
had
asked that question,
she replied, 'Because he had already told me
that
he had already
been
in
prison, or something'. Although counsel had, very properly, imme-
diately passed on to some
other
topic, defence counsel thought
that
the
damage had already been done and he applied that
the
jury
be dis-
charged, on the ground that any jury which had heard that exchange
could
not
possibly try the issue fairly, no matter
what
the judge might
say to try to repair the damage. The judge, however, refused to discharge
the jury, although the possibility of bias might be thought to be indicated
by the lengths to which the' judge
went
in setting
out
his reasons in
extenso,
which were matters taken into account by the Court of Appeal
when
the issue came before that court. The judge stated that it was
not
an
inevitable inference from the jury's hearing the exchange
that
it
would consider the appellant not to be a credit-worthy witness, because
he had been in prison. The prosecuting counsel had taken no part in
the
process which had ended with the judge's refusal to discharge the
jury
432
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