24 May, 1995.
In a "similar fact" case involving alleged sexual offences against 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 similar fact evidence of one complainant corroborated the evidence of another.
The House of Lords unanimously dismissed an appeal by the defendant and affirmed the decision of the Court of Appeal, Criminal Division ( 2 All ER 881;  1 WLR 809), upholding the defendant's four convictions, before Mr Justice Tucker and a jury, for indecent assault, gross indecency and unlawful sexual intercourse.
The offences were alleged to have been committed between 1987 and 1989 against the defendant's adopted daughter and against his stepdaughter. The alleged victims did not confide in the defendant's wife until 1992. She then reported the matter to the police. There were similarities in the accounts given by the two victims. The defendant denied the charges, contending the two girls had concocted the story. Mr Justice Tucker directed the jury that if they were sure the girls had not collaborated to concoct a false story then the similar fact evidence of one girl provided support or corroboration for the evidence of the other.
Michael Beckman QC and Stanley Best (Starbuck & Mack) for the defendant; Neil Butterfield QC and Jeremy Gibbons (CPS HQ) for the Crown.
LORD MACKAY LC said that where there was an application to exclude evidence on the ground that it did not qualify as similar fact evidence and the submission raised a question of collusion the judge should approach the question of admissibility on the basis that the similar facts alleged were true and apply the test set out by their Lordships in DPP v P  3 All ER 337,  2 AC 447.
In that case, in which a father was charged with sexually abusing a young daughter, evidence that he had also similarly abused other young children of the family was held to be admissible if the similarity was sufficiently strong, or there was other sufficient relationship between the events described and the evidence of the other young children, and the abuse charged, that the evidence, if accepted, would so strongly support the truth of that charge that it was fair to admit it notwithstanding its prejudicial effect.
If a submission was made raising a question of collusion in such a way as to cause the judge difficulty in applying that test, he might be compelled to hold a voir dire. The situations in which collusion was relevant in the consideration of admissibility would arise only in a very exceptional case, but the present was not such a case.
If evidence of similar facts had been admitted and circumstances were adduced in the course of the trial which indicated that no reasonable jury could accept the evidence as free from collusion, the judge should direct the jury that it could not be relied upon as corroboration or indeed for any other purpose adverse to the defence. Where this was not so, but the question of collusion had been raised, the judge must clearly draw the importance of collusion to the attention of the jury and leave it to them to decide whether, notwithstanding such evidence of collusion as might have been put before them, they were satisfied that the evidence could be relied upon as free from collusion, and tell them that if they were not so satisfied they could not properly rely upon it as corroboration or for any other purpose adverse to the defence.
LORD GRIFFITHS, concurring, said the basic reason why criminal cases were heard by juries rather than by a judge alone was that our society preferred to trust the collective judgment of 12 men and women drawn from different backgrounds to decide the facts of cases rather than accept the view of a single professional judge.
It was the jury's function to decide whether a witness was to be believed. It was the duty of the judge to rule on the admissibility of evidence on the assumption that the prosecution statements would be accepted by the jury as truthful and accurate. If it was admitted, the jury then determined its credibility and that applied to similar fact evidence as it did to all other admissible evidence.
Paul Magrath, Barrister