Recent Judicial Decisions
| Author | J. C. Wood |
| DOI | 10.1177/0032258X6904200907 |
| Published date | 01 September 1969 |
| Date | 01 September 1969 |
| Subject Matter | Article |
PROFESSOR
J.
C.
WOOD,
LL.M.
The University
of
Sheffield
Legal Correspondent
of
THE
POLICE
JOURNAL
SIMILAR FACTS
R. v. Flack [1969] 1 W.L.R. 937 Court of Appeal
Flack was charged on three counts alleging incest, each count
relating to a different sister. There was an application for separate
trials but this was refused. The trial Judgewas of opinionthat evidence
relating to each sister might be evidence on the other charges. There
was some evidence of indecency with one sister and the Judge ruled
that this was admissible. The jury were directed to take the evidence
on each count separately. They were told that if they believed the
sisters they could convict without corroboration. They convicted on
two of the three counts. An appeal was made on many grounds
including that there should have been separate trials and that the
counts should not have been joined in the.same indictment.
The Court of Appeal accepted that it was proper to try the counts
together. The counts related to a series of offences of the same or
similar nature. More difficult was the trial Judge's original opinion
that the evidence on each count .might be admissible on the others.
Two precedents R. v. Sims
[1946]
K.B. 531, and R. v. Campbell
[1956]
2 Q.B. 432, both contain dicta which appear to say that a
series of offences strengthens the prosecution's case on
anyone
count. The Court of Appeal could not accept this. In fact there were
special reasons why the series point was important in one
of
these
cases. In Sims it served to negative the defence of innocent purpose.
The dicta in Campbell appear to be too wide.
It
is clear from the
judgment of the Court of Appeal that the evidence could not be used
on counts to which it did not directly relate. Although the trial
Judge had not made his mind up at the outset, when he summed up
to the jury he made the independence of each count amply clear.
The jury's verdict of one acquittal and two convictions indicates that
the jury took this point. The Court of Appeal would have preferred
astronger summing up expressly asking the jury to exclude from
their minds evidence relating to other counts.
Note
This case illustrates the difficulties and pitfalls for a Judge when several
counts in the same indictment concern a series of similar offences. The rules are
fairly
clear-it
is a matter of applying them and ensuring that all the safeguards,
such as clear warnings to the jury, are taken.
September 1969 402
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