R v Novac
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BRIDGE |
| Judgment Date | 15 December 1976 |
| Judgment citation (vLex) | [1976] EWCA Crim J1215-1 |
| Docket Number | No. 4691/C/75 No. 4727/A/75 No. 4732/A/75 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 December 1976 |
[1976] EWCA Crim J1215-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Bridge
Mr. Justice Wien
and
Mr. Justice Kenneth Jones
No. 4691/C/75
No. 4708/A/75
No. 4727/A/75
No. 4732/A/75
MR. L. GIOVENE appeared on behalf of the Applicant Raywood.
MR. G. GUTHRIE JONES, Q.C. and MR S. LESLIE appeared on behalf of the Applicant Andrew-Cohen
MR. J. ALLIOTT, Q.C. and MR. C. TAILBY appeared on behalf of the Applicant Archer.
MR. A. CAMPBELL, Q.C. and MR. P. JACKSON appeared on behalf of the Applicant Novac
MR. A. JEFFEREYS and MR. HAWKINS appeared on behalf of the Crown.
(As approved)
On the 19th June last year the appellants Andrew Novac, Malcolm Jack Raywood, Basil John Andrew-Cohen and David Archer were arraigned with two other men at the Central Criminal Court on an indictment containing thirty-eight counts including five separate conspiracies. The two other men offered pleas of guilty acceptable to the Crown and to the Court. Thereupon it was indicated by the prosecution that the scope of the indictment could be radically reduced. In its attenuated form it included nineteen counts, of Which only one charged a conspiracy. The trial effectivel commenced on the 20th June. It was adjourned for four weeks between the 1st August and the 1st September. In due course the judge summed up for four full days and sent the jury out early on the morning of the fifth day, Friday the 19th September. The jury returned their verdicts late that afternoon. The trial had occupied, in total, forty seven working days.
The outcome was as follows: Novae, Raywood, and Andrew-Cohen were convicted of conspiring together between the 13th May and the 24th July, 1974, to procure the commission by male persons under the age of twenty-one years of acts of gross indecency with themselves (Count 1). Raywood alone was convicted of living on the earnings of prostitution of other male persons between the same dates (Count 2). Novac (after changing his plea from "Not Guilty" to "Guilty" at a late stage) and Raywood were both convicted, again between the same dates, of persistently importuning in a public place for immoral purposes (Count 3). Andrew-Cohen had been charged in Counts 8, 9 and 10 with specific offences of gross indecency with named male persons under the age of twenty-one years, committed in or about the same period as that covered by the conspiracy count. The jury had been directed that if they convicted Andrew-Cohen of conspiracy they need not return verdicts on Counts 8 and 9. But no similar direction was given with respect to Count 10 and on Count 10 Andrew-Cohen was convicted of gross indecency. All the foregoing counts will hereafter be referred to as "the conspiracy and related counts".
Novac was further convicted of three specific offences of indecent assault on named boys under the age of sixteen years (Counts 4, 5 and 6). These offences were charged and the evidence relating to them alleged their commission between the 1st September and the 8th November 1974. Raywood was further convicted of one offence of buggery with a named male person under the age of twenty-one years (Count 7). This offence was charged and alleged to have been committed between the 1st November and the 3rd December 1974. Andrew-Cohen was further convicted of a specific offence of indecent assault upon a named boy under the age of sixteen years (Count 11). This offence was charged and alleged to have been committed between the 1st September and 8th November 1974. Counts 4, 5, 6, 7 and 11 will be referred to as "the specific offence counts". It will be observed that the specific offence counts all charged offences committed well outside the period of the conspiracy.
Finally Archer, who was not concerned in the conspiracy and related counts, was convicted of five offences of buggery with named male persons under the age of twenty-one years and two offences of gross indecency with two of those males (Counts 12 – 18 inclusive). Archer was acquitted of a charge of gross indecency with a male person under the age of twenty-one years on Count 19.
Novac applied for leave to appeal against conviction on all Counts except Count 3. Raywood applied for leave to appeal against conviction on Count 7 only. Andrew-Cohen applied for leave to appeal against conviction on Count 11 only. Archer applied for leave to appeal against conviction on all counts. At the hearing of the applications the Court granted leave to appeal in each case and treated the hearing as the hearing of the appeals.
The evidence relevant to the conspiracy and related counts can, for the purposes of this judgment, be very briefly summarised. It fell under three headings. The first and most voluminous category of evidence was that of police officers Who between the dates mentioned in Count 1 of the indictment had kept observation on the movements and activities of the first three appellants in and around an amusement arcade near Piccadilly Circus called Playland, which clearly was, upon the evidence, a favourite resort and meeting point for young male prostitutes and their customers. The second head of evidence was the evidence of nine or ten youths of various ages under twenty-one who spoke of acts of indecency between themselves and the first three appellants. Most of these were committed at an address in Garratt Lane, wandsworth where these three appellants were living together at the time. Finally there was evidence of lengthy written statements made by each of these three appellants and of interviews with police officers, all of which on the face of them contained important and damaging admissions. Without examining the evidence in detail it is no exaggeration to say that the evidence as a whole presented an overwhelming picture of these three appellants habitually consorting with young male prostitutes in the West End of London and frequently entertaining them at their flat in Wandsworth for immoral homosexual purpose.
It was inevitable that in the case of each of the appellants, Novac, Raywood and Andrew-Cohen, the question would sooner or later arise whether and to what extent the evidence led in relation to the conspiracy and related counts was admissible as relevant to and capable of providing corroboration of the evidence of the boys concerned in the specific offence counts. The nettle was first grasped by counsel for Raywood. He applied on the 19th June that Count 7 against his Client should be severed from the remainder of the indictment. This was opposed by counsel for the Crown on the ground that evidence in support of the conspiracy and related counts would be available as "similar fact" evidence relevant to and capable of corroborating the evidence of the boy named in Count 7 (Transcript Vol. 1 pages 23 and 24). The judge accepted his submission. At the end of the trial, if it was not in terms conceded by counsel for the Crown that his submission on this point could not be sustained, at all events we are told that in his final speech to the jury he invited them to consider the evidence directly relevant to Count 7 in isolation from the remainder of the evidence affecting Raywood. In summing up the judge said (Transcript Vol. 3, page 13 at F): "Members of the jury P (the boy named in Count 7), R, S, and O (boys who had given evidence against Raywood in support of the Conspiracy count) do not corroborate one another about Raywood, because although each has given evidence about buggery, or attempted buggery on them by Raywood, there is nothing strikingly similar".
Mr. Giovene in this Court submitted that the judge's initial refusal to sever Count 7 of the indictment was based upon the erroneous view that the conspiracy evidence was available as "similar fact" evidence to corroborate the evidence of P on Count 7. He relied upon the principle of which the most cogent expression is to be found in the speech of Lord Cross of Chelsea in R. v Boardman (1975) A.C. 421, when he said at page 459, D-G: "When in a case of this sort the prosecution wishes to adduce 'similar fact' evidence which the defence says is inadmissible, the question whether it is admissible ought, if possible, to be decided in the absence of the jury at the outset of the trial and-if it is decided that the evidence is inadmissible and the accused is being charged in the same indictment with offences against the other men the charges relating to the different persons ought to be tried separately. If they are tried together the judge will, of course, have to tell the jury that in considering whether the accused is guilty of the offence alleged against him by A they oust put out of mind the fact - which they know - that B and C are making similar allegations against him. But, as the Court of Criminal Appeal said in Rex v Sims (1946) K.B. 531, 536, it is asking too much of any jury to tell them to perform mental gymnastics of this sort. If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons. It is said, I know, that to order separate trials in all these cases would be highly inconvenient. If and so far as this is true it is a reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying all the charges...
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