Practice and Procedure


PUBLISHED September 5, 2003

Successful appeal against conviction for rape, attempted rape and indecent assault where the judge failed to adequately direct the jury on the proper approach to the separate treatment of counts in two sets of joined charges arising from the allegations of two complainants, who were stepdaughters of the appellant.Appeal against conviction for rape, attempted rape and indecent assault entered on 2 May 2002 in Reading Crown Court. In total, the appellant was convicted of two counts of rape, one of attempted rape and five counts of indecent assault. The complainants were the appellant's two stepdaughters. The chief ground of appeal was that the judge failed to direct the jury in sufficiently clear terms to consider the allegations as between each complainant entirely separately. The appellant also questioned the wisdom of the prosecution in not applying for severance of the counts on the indictment in light of that fact that the prosecution had never treated the matter as a similar fact case.HELD: (1) The two sets of charges were properly joined as they constituted a "series of offences of the same or a similar character". In the circumstances, it was permissible for the allegations in relation to the two complainants to be tried together. (2) Where the prosecution did not rely on similar fact and the charges were not severed, it was essential that the jury were directed in clear terms that: (i) the evidence on each set of allegations was to be treated separately; and (ii) the evidence in relation to an allegation concerning one complainant could not be treated as proof of an allegation against the other complainant. Failure to give such a direction could result in the jury wrongly regarding the evidence as cross-admissible in relation to each separate set of allegations and consequently relying on evidence of propensity as evidence of guilt. (3) The judge's direction was not sufficiently clear to impress the jury with the absolute need for them to treat the evidence in relation to each set of allegations separately. It was not clear from the summing up as to how the issue of the credibility of various witnesses should be treated in relation to the different sets of allegations. Therefore the risk arose that the jury did not give separate consideration to the evidence of the complainants as it should have done. (4) The judge gave the jury a reminder that one of the complainant's may have been trying to back up her older sister's account and that was a sufficient warning, in the circumstances, as to the possibility of collusion or contamination. (5) Despite the strength of the evidence, the conviction had to be regarded as unsafe since it was not possible to know how the jury had treated the evidence of each complainant in relation to the allegations made by the other complainant. Therefore the conviction was quashed.Appeal allowed.

[2003] EWCA Crim 2424