R v Hester ; DPP v Hester
| Jurisdiction | England & Wales |
| Judge | Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Pearson,Lord Diplock,Lord Cross of Chelsea |
| Judgment Date | 22 November 1972 |
| Judgment citation (vLex) | [1972] UKHL J1122-1 |
| Date | 22 November 1972 |
| Court | House of Lords |
[1972] UKHL J1122-1
Lord Morris of Borth-y-Gest
Viscount Dilhorne
Lord Pearson
Lord Diplock
Lord Cross of Chelsea
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions against Hester (on appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel as well on Tuesday the 3d, as on Wednesday the 4th, days of October last, upon the Petition and Appeal of the Director of Public Prosecutions of 12 Buckingham Gate, London, S.W.1, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 21st of April 1972, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of John James Joseph Martin Patrick Hester, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 21st day of April 1972 complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
By three separate counts in an indictment the Respondent was charged with having indecently assaulted a girl of the age of 12 years contrary to s. 14(1) of the Sexual Offences Act, 1956. The counts related to offences alleged to have been committed respectively on the 6th, the 9th and the 10th September, 1971. The Respondent was acquitted by the jury on the two counts in reference to the two earlier dates. He was convicted by the jury on the third count. On appeal to the Court of Appeal (Criminal Division) his appeal was allowed and his conviction quashed. The Court of Appeal certified that a point of law of general public importance was involved in their decision though they refused leave to appeal. On report from the Appeal Committee leave to appeal to this House was later granted.
The relevant circumstances connected with the charge on which the Respondent was convicted can be briefly stated. For some five years before September, 1971, the Respondent had lived with a Mrs. Sterling as man and wife. He is the father of two of her children. For some period prior to September, 1971, the relationship between the Respondent and Mrs. Sterling had been deteriorating. There was dissension and disharmony. There was increasing mutual mistrust. Before the date of the trial (in November, 1971) the Respondent had ceased to live with Mrs. Sterling. The charges all related to Valerie Sterling a girl aged 12 who is a daughter of Mrs. Sterling. She professed dislike of the Respondent who is not her father. She wanted him out of the way. She wanted her father back at home. In her sworn evidence she stated what she said had happened on the three dates in question. It is not necessary to summarise what she said in regard to the first two. In regard to the two counts in the indictment concerning them the Chairman told the jury that there was no evidence in the case which was capable of being regarded as corroboration of her story.
The substance of her evidence in regard to the 10th September (the Third Count) was that when she was in bed with two sisters (one of whom was named June) the Respondent came into the bedroom with the baby of the family whom he placed in the bed with the three sisters. Valerie said that the Respondent then put his hands under the blanket though not under her night attire and started feeling her private parts and, though she cried, continued to do so for about two minutes. He then returned to Mrs. Sterling's neighbouring bedroom taking the baby back with him. The girl June was nine years of age. She was a witness at the trial. She gave her evidence unsworn. She said that she was awakened when the Respondent brought the baby into the bedroom where she (June) was in bed with Valerie and another sister. She said that the Respondent whispered to Valerie: she could not remember what he said nor whether Valerie (who was crying) said anything. She (June) said that she did not see what was happening because she was turned to the wall. Being further asked whether she had heard the Respondent say anything she was permitted, after there had been a long pause, to write down her answer which was:—
"If you ever tell your mam I will hit you and you and your mam. He said to my sister—Let me feel your thing and he touched it. I can't remember any more."
A question to her in cross-examination as to whether her mother had put matters into her head was assented to if a nod of the head was correctly interpreted. In re-examination she said that she saw what happened in the bedroom.
It suffices for present purposes to say that the Respondent, who gave evidence, denied the charges and that at all stages he had consistently denied them. Other features of the evidence need not be mentioned.
The provisions of s. 38 of the Children and Young Persons Act, 1933, made it permissible for the Court (if satisfied as to the requirements of the section) to receive June's evidence though it was not given upon oath. Those provisions are as follows: —
"38.—(1) Where, in any proceedings against any person for any offence, any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence, though not given on oath, but otherwise taken and reduced into writing in accordance with the provisions of section seventeen of the Indictable Offences Act, 1848, or of this Part of this Act, shall be deemed to be a deposition within the meaning of that section and that Part respectively:
Provided that where evidence admitted by virtue of this section is given on behalf of the prosecution the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him."
"(2) If any child whose evidence is received as aforesaid wilfully gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be liable on summary conviction to be dealt with as if he had been summarily convicted of an indictable offence punishable in the case of an adult with imprisonment."
(The provisions of Rule 5 of the Magistrates Courts Rules 1952 must now be regarded.)
The forerunner of s. 38 of the Act of 1933 (which is a Consolidation Act) may be seen in s. 4 of the Criminal Law Amendment Act of 1885. In ss. 2 and 3 of that Act were provisions that no person should be convicted of an offence under the section upon the evidence of one witness unless such witness be corroborated in some material particular by evidence implicating the accused.
Under s. 4 power was given subject to certain conditions to receive evidence though not given on oath upon the hearing of certain charges (having or attempting to have unlawful carnal knowledge of a girl under the age of thirteen). There were two provisoes in terms comparable to the proviso (as quoted above) to s. 38(1) of the 1933 Act and to the terms of s. 38(2). By the Childrens Act, 1908, there was power to receive the unsworn evidence of a child of tender years (see s. 30 of that Act) in any proceedings against any person for any offence under Part II of that Act or for any of the offences mentioned in a Schedule to that Act. Such power was by s. 28(2) of the Criminal Justice Administration Act, 1914, extended so as to be applicable to any proceedings for any criminal offence.
The accumulated experience of courts of law, reflecting accepted general knowledge of the ways of the world, has shown that there are many circumstances and situations in which it is unwise to found settled conclusions on the testimony of one person alone. The reasons for this are diverse. There are some suggestions which can readily be made but which are only with more difficulty rebutted. There may in some cases be motives of self-interest: or of self-exculpation: or of vindictiveness. In some situations the straight line of truth is diverted by the influences of emotion or of hysteria or of alarm or of remorse. Sometimes it may be that owing to immaturity or perhaps to lively imaginative gifts there is no true appreciation of the gulf that separates truth from falsehood. It must, therefore, be sound policy to have rules of law or of practice which are designed to avert the peril that findings of guilt may be insecurely based. So it has come about that certain statutory enactments impose the necessity in some instances of having more than one witness before there can be a conviction. So also has it come about that in other instances the Courts have given guidance in terms which have become rules. Included in such cases are those in which charges of sexual offences are made. It has long been recognised that juries should in such cases be told that there are dangers in convicting on the uncorroborated testimony of a complainant though they may convict if they are satisfied that the testimony is true. As this is no mere idle process it follows that there are no set words which must be adopted to express...
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