R v Flack
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON |
| Judgment Date | 16 December 1968 |
| Judgment citation (vLex) | [1968] EWCA Crim J1216-7 |
| Docket Number | No. 5495/68 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 December 1968 |
[1968] EWCA Crim J1216-7
Lord Justice Salmon
Lord Justice Fenton Atkinson
and
Mr. Justice Milmo
No. 5495/68
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. J.H. GOWER, Q.C., and MR. A. BRIDGDEN appeared on behalf of the Appellant.
MR. L. CHARLES appeared on behalf of the Crown.
On the 19th July of this year, at the Sussex Assizes, this appellant was tried on an indictment containing three counts, each alleging incest. The first count charged him with having sexual intercourse with his sister Evelyn, who was then 15, between the 1st June and the 21st November, 1964. The second count charged him with having sexual intercourse with his sister Sheila, then aged between 12½ and 14, at some date between 1st April, 1965, and 13th October, 1966. The third count charged him with having sexual intercourse with his sister Carole, who was then 13½, on 26th May, 1967.
He was convicted by the Jury on the first and third counts, and acquitted on the second count. He received a sentence of seven years' imprisonment on each of the counts in respect of which he was convicted, the sentences to run concurrently; and he now appeals, by leave of the single Judge, against conviction and sentence.
Before the trial commenced, it was submitted on behalf of the Defence that each count should be tried separately. The learned Judge ruled that they should be tried together. The first point taken is that that ruling was wrong, and that on this ground the convictions should be quashed. Clearly, the three counts alleged a series of offences of the same or similar character; accordingly, it is plain that there was power to order these counts to be tried together (see Section 4 of the Indictment Act 1915 and Schedule 1 Rule 3 of that Act). That being so, it became a matter for discretion of the learned Judge whether he should allow the counts to be tried together or order them to be tried separately. That is a discretion which this Court has said, on more than one occasion, it will not overrule unless it can see that justice has not been done or unless compelled to do so by some overwhelming fact. Of course, if the learned Judge gives a reason which obviously was a bad reason, the Court may review his decision. It will not do so however if it is of the opinion that in all the circumstances the charges might well have been tried together, although the reason given by the Judge was wrong. ( The King v. Hall– 35 Criminal Appeal Reports at page 172.)
In the present case, Mr. Gower on behalf of the appellant argues very persuasively that the reasons given by the learned Judge for allowing the counts to be tried together were wrong.
In giving his ruling, the learned Judge certainly indicated that at that stage at any rate he had formed the provisional view that evidence of the alleged offence against any one girl would be evidence of the alleged offences against the other two. He added, however, that he could not forecast definitely whether he would remain of the same view at the conclusion of the evidence.
Mr. Charles, for the Crown, has sought to support the learned Judge's provisional view with passages from the judgments of Lord Goddard, Lord Chief Justice, in ( The King v. Sims 31 Criminal Appeal Reports at page 168) and ( The Queen v. Campbell 40 Criminal Appeal Reports at page 103). Mr. Charles has very frankly conceded that these passages at any rate at first sight, if unqualified – appear to be rather startling, a view with which this Court is certainly disposed to agree.
In Sims case, the accused was convicted on three counts, each alleging buggery with a different man. In Campbell's case, the accused was convicted on seven counts, each alleging indecent assault upon a different boy. The passage in Sims case relied on by the Crown reads as follows:
"The probative force of all the acts together is much greater than one alone; for, whereas the jury might think one man might be telling an untruth, three or four are hardly likely to tell the same untruth unless they were conspiring together. If there is nothing to suggest a conspiracy, their evidence would seem to be overwhelming. Whilst it would no doubt be in the interests of the prisoner that each case should be considered separately without the evidence on the others, we think that the interests of justice require that on each case the evidence of the others should be considered, and that even apart from the defence raised by him, the evidence would be admissible."
The passage in Campbell's case relied upon by the Crown is shorter, but to much the same effect, and reads as follows:
"At the same time we think a jury may be told that a succession of these cases may help them to determine the truth of the matter, provided they are satisfied that there is no collaboration between the children to put up a false story."
These passages seem to suggest that, whenever a man is charged with a sexual offence against A, evidence may always be adduced by the Crown in support of that charge of similar alleged offences by the accused against B, C and D. This Court does not think that those passages were ever intended to be so understood. If, however, this is their true meaning, they go much further than was necessary for the purpose of the decisions, and cannot, in the view of this Court, be accepted as correctly stating the law.
In Sims case, the accused had admitted that he invited each of the men to his house. He said he had done so solely for the purpose of conversation and playing cards. Each man said he had been invited to the house for the purpose of buggery. The question was whether this was a guilty or an innocent association. As Lord Goddard said.
"The visits of the men to the prisoner's house were either for a guilty or an innocent purpose; that they all speak to the commission of the same class of acts upon them tends to show that in each case the visits were for the former and not the latter purpose."
This was plainly right, and the correctness of the decision in Sims case has never been doubted. The evidence of B, C and D was clearly admissable against A to negative the defence of innocent association.
In Campbell's case, the passage to which reference has been made was unnecessary for the decision which turned upon the extent to which the evidence of one child could amount to corroboration of another. The correctness of the decision itself in Campbell's case has never been questioned. It is only the passage to which reference has already been made about which any criticism is possible.
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