Law Report: Corroboration of victims' evidence: Regina v Hepburn - Court of Appeal (Criminal Division) (Lord Justice Russell, Mr Justice French and Mr Justice Harrison), 24 January 1994

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In a case involving more than one complainant, each giving evidence with similarities, the risk that the evidence was contaminated by collusion did not, save in exceptional cases, render the evidence inadmissible and it was for the jury, having assessed the quality of the evidence, to decide whether the evidence of one complainant corroborated the evidence of another.

The Court of Appeal dismissed the appellant's appeal against four convictions before Mr Justice Tucker and a jury of indecent assault, gross indecency and unlawful sexual intercourse. Leave to appeal to the House of Lords was granted.

The offences were alleged to have been committed against the appellant's adopted daughter and stepdaughter between 1987 and 1989. The alleged victims did not confide in the appellant's wife until 1992. There were similarities in the accounts given by the two alleged victims. The appellant denied the charges, contending that one of the girls knew he disapproved of her boyfriend, and out of resentment, the two girls had concocted the story. Mr Justice Tucker directed the jury that if they were sure that the girls had not collaborated to concoct a false story then the similar fact evidence of one girl provided support or corroboration for the other's evidence.

The appellant appealed on the ground that, following the decision in R v Ananthanarayanan (1994) 98 Cr App R 1, the evidence of one girl could not corroborate the other.

Stanley Best (Registrar of Criminal Appeals) for the appellant; Jeremy Gibbons (CPS) for the Crown.

LORD JUSTICE RUSSELL, giving the court's judgment, said that in Ananthanrayanan, the court said that if there existed a real risk or real possibility that the evidence of one complainant might have been contaminated by that of another, there could be no mutual corroboration between them, and it was for the trial judge to decide the admissibility of the similar fact evidence.

The court in Ananthanarayanan was confusing the admissibility of evidence with the quality of evidence, that is, the role that the evidence played in the jury's deliberations. If there was a risk of contamination the evidence could not be used as corroboration. It did not necessarily follow that the evidence became wholly inadmissible.

There might be extreme cases where the judge concluded, having seen and heard the witnesses, that collaboration had taken place and in such a case he might exercise his powers to stop the trial and direct an acquittal or abort the trial and sever the indictment.

Those exceptional cases apart, a jury, having seen and heard the witnesses should form its own assessment of the dangers and, provided it received the warnings and directions found in the summing up in the present case, the jury could properly decide whether the evidence of one complainant corroborated the evidence of the other. To deny the jury the responsibility of that fact finding exercise was to usurp the jury's function.

The judge was not deciding a question of admissibility when he considered whether evidence could be used as corroboration. The evidence of the individual complainant remained admissible even if it was contaminated.

On the facts, although there must have existed a risk of collusion, that question and whether the jury could regard one gEirl as corroborating the other were properly left to the jury. The appeal was dismissed.

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