R v Christou
| Jurisdiction | England & Wales |
| Judge | Lord Goff of Chieveley,Lord Griffiths,Lord Browne-Wilkinson,Lord Taylor of Gosforth,Lord Hope of Craighead |
| Judgment Date | 09 May 1996 |
| Judgment citation (vLex) | [1996] UKHL J0509-2 |
| Date | 09 May 1996 |
| Court | House of Lords |
[1996] UKHL J0509-2
HOUSE OF LORDS
(ON APPEAL FROM THE COURT OF APPEAL) (CRIMINAL DIVISION)
Lord Goff of Chieveley
Lord Griffiths
Lord Browne-Wilkinson
Lord Taylor of Gosforth
Lord Hope of Craighead
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
My Lords
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Taylor of Gosforth. For the reasons he gives I too would dismiss this appeal.
My Lords
I have had the advantage of reading the speech of my noble and learned friend Lord Taylor of Gosforth and agree that for the reasons he gives this appeal should be dismissed and the certified question answered in the affirmative.
I wish, however, to add a rider. Although the point was not argued, I am firmly of opinion that the judge was wrong to rule that the evidence of the two complainants was not capable of corroborating one another. This was a case of a man successively sexually abusing his two young girl cousins whilst living as a member of their family in the same house. In such circumstances Director of Public Prosecutions v. P. [1991] 2 A.C. 447 is clear authority that should have led the judge to rule that the jury were entitled to regard the complainants' evidence as mutually corroborative. Had she done so the point argued in this appeal would, of course, never have arisen.
My Lords,
For the reasons given by my noble and learned friend Lord Taylor of Gosforth I agree that this appeal should be dismissed and the certified question answered in the affirmative.
My Lords,
This appeal arises from the conviction of the appellant on 12 August 1993 at the Central Criminal Court for indecent assaults on his two young female cousins. The counts concerning each complainant were tried together. The appellant was sentenced to a total of three and a half years imprisonment. The Court of Appeal, on 18 February 1994, dismissed the appellant's appeal which was based on the contention, inter alia, that the indictment should have been severed and the counts in respect of each complainant tried separately. However, the Court of Appeal certified a point of general public importance in the following terms:
"Where an accused is charged with sexual offences against more than one person and the evidence of one complainant is not so related to that of the other complainants as to render it admissible on the charges concerning those other complainants in accordance with the principle laid down in Director of Public Prosecutions v. P. [1991] 2 A.C. 447 has the trial judge a discretion to order that all charges should be tried together, having regard to the provisions of section 4 of the Indictments Act 1915 (as amended) and rule 9 of the Indictment Rules?"
Your Lordships House gave leave to appeal on 13 July 1995.
The complainants were Chrisy, born in December 1964 and Maria, born in October 1973. They are sisters and first cousins of the appellant. In 1972, the appellant, aged 22, came from Cyprus to live as a lodger with his aunt and uncle, the parents of the complainants. He became Maria's godfather and he lived with the family until 1982 when he left to marry.
The case for the Crown was that during the 10 years he lodged in their home, the appellant sexually abused both girls repeatedly, Chrisy from his arrival and Maria from about 1978 when she was five. The girls made no complaint until they went to the police in 1992. At the time of the trial Chrisy was 28, married with three children. Maria was a 19 year old student, unmarried but having a sexual relationship with her boyfriend.
Chrisy alleged the appellant had sexual intercourse with her on occasions when she was about 8 years old (count 1 with its paired count of indecent assault, count 2) and he kissed her breasts and private parts on one occasion when she was 9 or 10 (count 3). When she was about 10 or 11 and was reluctant to have sexual intercourse she told the appellant he should not "do anything to me at the front". In the result, the appellant committed what she alleged was buggery upon her (count 4 with its paired count of indecent assault, count 5). Thereafter she sought to avoid being alone with the appellant. Her final allegation was that the appellant cornered her in the bathroom when she was about 15, pulled aside her underclothes and raped her (count 6 with its paired count of indecent assault, count 7).
Maria said that the first incident with her was when the appellant caused her to undress in a house to which the family had recently moved. Thereafter, she alleged he had sexual intercourse with her (count 8, rape, with its paired count 9 of indecent assault) and buggered her (count 12, with its paired count of indecent assault, count 13). These incidents occurred when she climbed into his bed. She also alleged that on occasions when she returned from school the appellant had intercourse with her on the sofa in the living room (count 10, rape, with its paired count of indecent assault, count 11).
At the close of the prosecution case, the trial judge upheld submissions of no case to answer in respect of count 1 (rape) and count 6 (rape), in respect of Chrisy. She also allowed submissions of no case in respect of Maria on count 14 (buggery) and count 15 (indecent assault). The trial proceeded in respect of the remaining 11 counts.
The appellant gave evidence. He was 42 years old, of previous good character and he denied all the allegations of indecent conduct. Evidence was called on his behalf. In the result, the jury convicted the appellant on five counts of indecent assault, counts 3, 5 and 7 in respect of Chrisy and counts 11 and 13 in respect of Maria. They acquitted the appellant of the other six counts. He was sentenced to 18 months imprisonment concurrently in respect of counts 3, 5 and 7 and two years imprisonment concurrently inter se, but consecutive to the 18 months in respect of counts 11 and 13.
It is convenient first to set out the effect of the statutory provisions and the decision of your Lordships' House in Director of Public Prosecutions v. P. [1991] 2 A.C. 447 which are mentioned in the certified question.
Rule 9 of the Indictment Rules 1971 ( S.I. 1971 No.1253 (L. 31)) (made under the Indictments Act 1915) is in the following terms:
"Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character."
Section 5(3) of the Indictments Act 1915 provides:
"Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the Court may order a separate trial of any count or counts of such indictment."
There was no dispute, nor could there be, that the counts in the present case relating to both alleged victims fell squarely within the scope of Rule 9. They were therefore properly joined in one indictment. Again, Mr. Higgs Q.C. accepted that section 5(3) of the Act of 1915 gives the Court a discretion as to whether or not counts on the same indictment should be separately tried. Prima facie, therefore, the answer to the certified question as worded must quite simply be 'yes'. However, Mr. Higgs sought to qualify and amplify the question. In cases of sexual abuse of children where the evidence of one child is not admissible in support of allegations by another child, he submits the judge's discretion should always be exercised in favour of severing the counts relating to those children. He seeks to rely principally on words used by Lord Mackay of Clashfern L.C., in answering the second of the two questions certified in Director of Public Prosecutions v. P.
The defendant in that case was convicted on four counts of rape and four counts of incest in respect of each of his two daughters. Following the decision of your Lordships House in Reg. v. Boardman [1975] A.C. 421, the test of whether the evidence of one complainant in such a case was admissible in support of the complaint of another had been whether there were striking similarities between the facts relating to each complaint. The central issue in Director of Public Prosecutions v. P. was whether such striking similarities were essential. The Court of Appeal had felt bound by authority to hold that they were and accordingly they allowed the defendant's appeal. They certified two questions of general public importance as follows:
"1. Where a father or step-father is charged with sexually abusing a young daughter of the family, is evidence that he has also similarly abused other young children of the family admissible (assuming there to be no collusion) in support of such charge in the absence of any other 'striking similarities:' 2. Where a defendant is charged with sexual offences against more than one child or young person, is it necessary, in the absence of 'striking similarities' for the charges to be tried separately?"
Your Lordships House unanimously reversed the decision of the Court of Appeal. Lord Mackay of Clashfern L.C. said, at p. 460D:
"As this matter has been left in Reg. v. Boardman I am opinion that it is not appropriate to single out 'striking similarity' as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another."
Lord Mackay said, at p. 462C-G:
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