NOTES OF CASES

Publication Date01 Apr 1947
DOIhttp://doi.org/10.1111/j.1468-2230.1947.tb00047.x
NOTES
OF
CASES
SIMILAR OFFENCES
AS
EVIDENCE
AGAINST
THE
ACCUSED
THE
Indictments Act,
1915,
Sched.
I,
r.
3
permits the
joinder of two or more counts in the same indictment where
they are ‘founded on the same facts or form or are part of
a series of offences of the same
or
a similar character
),
subject to the power
of
the trial Judge, conferred by
section
5
(3)
of the Act, to order
a
separate trial on each
count if the joinder
may prejudice or embarrass
the accused
in his defence. In
R.
v.
Sims,
[1946]
1
All
E.R.
697
the accused
was charged on three counts for buggery with three different
men; three further counts charged him, in the alternative,
with
gross
indecency in respect of the same men;
a
seventh
count charged gross indency with another man; and three
further counts alleged indecent assaults on boys. The Judge
ordered the seven counts in respect of the four men to be
tried together and the point of the appeal was whether this
direction was right.
The accused argued for
a
separate trial on each count,
otherwise evidence in respect of the three remaining men
would be before the jury in considering the
first
count when,
but for the accident of joinder, it would have been inadmis-
sible. The moral effect on
a
jury of cumulative evidence in
respect
of
four men is obvious and, though a jury should
strictly ignore evidence
of
the other charges and take each
count on its merits, in practice this is asking more than is
human, no matter how carefully they are warned in the
summing up. This was recognised by the
C.
C.
A.
(ib.,
at
In such
a
case as the present, however,
it
is
asking
too much to expect any jury, when considering one
charge, to disregard the evidence on the others.
.
.
.
But the practice
is
of long standing; the Act confers a
wide discretion on the Judge; the summing up had been
impeccable.
It
would therefore have been open to the Court
to
dismiss the appeal on the well-settled rule that an Appeal
Court will not lightly interfere with a trial Judge’s discretion,
as in
R.
v.
Grondkowski
and Malinowski,
[l946]
1
K.B.
369.
But the
C.
C.
A. went much further and in an
attempt to give guidance for the exercise
of
this discretion
p.
699):-
VOL.
10
193
13
194
MODERN
LAW
REVIEW
VOL.
10
enunciated some novel propositions. There are three rules
and these may, it appears, be in opposition
:
(a)
all evidence
is admissible if it, is logically probative
’;
(b) evidence of
conduct on other occasions is not admissible, subject to well
recognised exceptions
(e.g.,
such evidence is allowed to prove
‘system’, intent, fraud
or
identity,
or
to rebut the defence
of accident
or
mistake); and (c) evidence of bad character
is
not admissible unless the accused gives evidence of good
character
or
otherwise as allowed by the Criminal Evidence
Act,
1898.
Against this the Indictments Act permits joinder and thus
evidence of offence A might be before the jury when con-
sidering offence
B.
In many cases
a
warning from the Judge
will be sufficient, but the difficulty
is
how and where to draw
the line. Otherwise the effect of trying separate counts
together
will
be to make evidence of other offences always
admissible and thus
a
substantive rule
of
evidence will have
been changed by a procedural device. Hitherto Judges have
been reluctant to exercise their discretion against
a
prisoner
and evidence under propositions (b) and
(c)
(above) has been
strictly confined to narrow limits.
But what the
C. C.
A.
appears to have done in
Sims’
Case
is
to have seized upon
a
dictum
of Lord Sumner’s
(R.
v.
Thompson,
[1918] A.C., at p.
235)
and used it as a basis
for
a
general rule on sexual cases.
Lord
Sumner said-in
a
case where the point was whether conduct on the 16th inst.
was admissible in respect of an offence alleged to have been
committed on the 19th and the accused’s identity was in
issue as, while admitting he was present at the material time
on the 19th, he denied he was the man present on the 16th-
Persons
.
.
.
who commit [unnatural offences] seek
the habitual gratification of a particular perverted lust,
which not only takes them out
of
the class of ordinary
men gone wrong, but stamps them with the hallmark of
a
specialised and extraordinary class
as
much as if they
carried on their bodies some physical peculiarity.
The
C.
C.
A.
rationalised this into
a
general rule-
On this account, in regard to this crime we think
that the repetition of the acts
is
itself
a
specific feature
connecting the accused with the crime and that evidence
of
this kind is admissible to show the nature
of
the act
done by the accused.
This, it is submitted, is a complete change of ground.
Lord Sumner’s
dictum
was based on different circumstances-

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