NOTES OF CASES
| Date | 01 July 1967 |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb01153.x |
| Published date | 01 July 1967 |
| Author | Colin Tapper |
NOTES
OF
CASES
INSTANT
LAW
IN
TRE
COURT
OF
APPEAL
(CRIMINAL
DIVISION)
IT
is nearly seventy years since the Criminal Evidence Act
1898
became law. Every one of those years has produced its crop of
authority
on
the construction of the Act.
No
point of evidence in
criminal cases has been
so
often before the House of Lords. Twice
within the last five years
it
has been the subject of painstaking
analysis by the House.’
It
is therefore quite astounding that in
R.
v.
King,2
where the admissibility of a question put to the accused
in cross-examination was squarely in issue, neither the
1898
Act
nor
even one of the many decisions
on
it was either cited to the court
or
noticed by
it.
In this case the accused was tried
on
eight counts involving
indecent assault, gross indecency and attempted buggery
on
two
youths under sixteen. These counts related to incidents alleged to
have taken place
on
two separate occasions.
On
the
first,
at seven
o’clock in the evening, the prosecution case was that the accused
accosted the youths outside a public lavatory, offered them money
to commit acts of gross indecency with him inside, and that the
youths accepted this offer.
It
was also alleged that the accused
made an appointment to meet the youths
in
the same place later
that evening. The prosecution further contended that, at that sub-
sequent meeting, the accused invited the youths to spend the night
at his flat, where further offences were committed. The defence
completely denied the
first
meeting; they admitted the second meet-
ing, but said that
it
was by chance, not by appointment, and denied
that anything indecent occurred in the flat where the youths spent
the night.
The prosecution adduced evidence from the youths themselves,
and from a police officer who gave evidence of
a
statement made by
the accused.
It
was attempted to prove as part
of
this statement the
accused’s explanation that his visit to the lavatory late in the even-
ing was innocent, but embellished by the words,
‘‘
[I]
didn’t go
looking for trade.” This was allowed by the Deputy Recorder, but
he disallowed a further question as to whether the accused had ever
been there looking for trade, and the accused’s affirmative reply.
This
is
a trifle surprising in view of his earlier nonintervention when
the accused was reported as having admitted to being in the habit of
going to the lavatory in question to meet
his
friends, who congre-
gated there in the hope of finding someone to indulge in acts
of
gross
indecency with them. When the accused gave evidence the Deputy
1
Jones
v.
D.P.P.
[1962] A.C.
635;
Murdoch
V.
Taylor
[1965] A.C. 574.
2
[1967]
2
W.L.R.
612; (1967)
51
Cr.App.R. 46.
441
442
THE
YODEBN
LAW
REVIEW
VOL
80
Recorder allowed the prosecution
to
ask
him
whether he was a homo-
sexual, and him to reply that he was.
On
appeal,
it
was argued that the police evidence of the accused’s
gloss that he was not looking for trade at the lavatory should have
been excluded; and that the question whether the accused was a
homosexual should not have been allowed. The objection
to
the
former statement was that
it
was highly prejudicial, and
of
little
probative value. The court held that
this
was rightly admitted, and
by way of concession to the defence, as
it
tended
to
establish the
accused’s innocent motive for going to the lavatory
on
the occasion
in question, by way of contrast with his normal guilty motives as
revealed by his earlier remarks
on
this subject.
An
interesting side-
riddle here is that the court conceived the admission of this evidence
to be a plain exercise of the trial judge’s discretion.
It
seems to be a
discretion to allow inadmissible
or
irrelevant evidence in favour
of
the accused, despite his counsel’s objection that it did not favour
him, but rather prejudiced
him.
This is a novel doctrine. Hitherto
one had thought the trial judge’s discretion to be exclusionary rather
than inclusionary, and that counsel should bear the responsibility of
deciding what favoured his client and what prejudiced him, not the
judge. Even accepting this odd argument, the admissibility of the
evidence depends upon the admission
of
the earlier evidence. Its
admissibility must therefore be examined.
It
is true that
no
objec-
tion was made to this evidence either at the trial
or
on
appeal, but it
is not the law of this country that an oversight by counsel makes
inadmissible evidence admissible;
if
the evidence was inadmissible,
it was the duty
of
the court
to
say
so.=
The effect of this earlier evi-
dence was to show that the accused had in the past associated with
men who solicited acts of
gross
indecency. Its only conceivable rele-
vance to the issues before the court was its tendency
to
establish the
disposition of the accused
to
acts of a similar nature.
It
is clear that
the later denial by the accused that he was
‘‘
looking for trade
”
on
the occasion in question added nothing to
his
assertion that his pur-
pose was innocent, and only served to impress this disposition still
further upon the minds
of
the jury. To that extent the evidence
hung together. The court also considered the admission by the
accused that he was a homosexual in this connection.
As
no
point
was made
of
the fact that this question was asked in cross-exam-
ination, it, too, must be
&st
considered as
if
it had been tendered in
chief.
The question is to what extent, in a case where a man is charged
with acts of
gross
indecency and other homosexual conduct, the
prosecution can lead evidence of his disposition
to
tout
acts of
gross
indecency and homesexual conduct. The court regarded this
as covered by
Thompson
V.
R.4:
s
See,
c.g.,
R.
v.
Sounders
[1899]
1
Q.B.
490;
R.
V.
Richard8
[1967]
1
A11
E.R.
829.
4
B9181-A:C. 221.
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