The judge had been entitled to admit "similar fact" evidence in respect of allegations made independently by two females that they had been indecently assaulted by the appellant. Evidence of distress and depressed demeanour shown by one of the complainants at her police interview should not, however, have been admitted.Appeal by the appellant ('V') against his conviction on 12 July 2002 on four counts of indecent assault after a trial at St Albans Crown Court before HH Judge Findlay Baker QC and a jury for which he was sentenced to 15 months' imprisonment. Counts 1 and 2 related to allegations by a minor ('LM') that V had indecently assaulted her between January 1999 and April 2001, when she was aged between 9 and 12 years old. It was alleged that V, a close friend of LM's family and a regular visitor to their home, had on several occasions rubbed LM's breasts under her clothing and digitally penetrated her vagina. Counts 3 and 4 concerned allegations made by the second complainant ('RB'). In 2001, when she was 24 and after she had been asked to appear as a character witness for V in connection with LM's allegations, RB alleged that in 1992, when she was 14, V, who was a family friend, had indecently assaulted her by cupping his hands around her breasts over her coat at a firework display. She also alleged that V had massaged her breasts in the dining room of her home in 1994. V argued that the judge had erred by: (i) failing to sever counts 1 and 2 from counts 3 and 4 on the basis that the allegations of LM and RB had sufficient similarity to fall within the principle enunciated in Director of Public Prosecutions v P sub nom R v P (A Father) (1991) 3 WLR 161; and (ii) allowing evidence to be admitted of the distress shown by LM when she was interviewed by the police at her home on the ground that it was linked with, and integral to, the evidence of LM's mother that LM had had an untypically depressed demeanour from 2001 until she gave a video interview to the police.HELD: (1) The question of admissibility of "similar fact" evidence depended on the degree of its relevance. If it did no more than suggest propensity, it was inadmissible. If it could be shown to be relevant to, and probative of, a particular issue in the case, then it was admissible provided its probative value outweighed its prejudicial effect (DPP v P (supra) applied). (2) The basis of the judge's view that this was a case where "similar fact" evidence was admissible was clear from his summing up, namely in relation to the allegation that each of the complainants was lying. The features of similarity were that in each case V was a close family friend, each girl complained of an assault in her own home in the course of a visit and each made a similar accusation of a squeezing or feeling of the breast, save that the interference with LM went further on occasions than it did with RB. The engineering of the opportunity, the initiation of the interference, the nature of the assault and the breach of trust were all similar in character. Nonetheless, the judge had been rightly careful to direct the jury that the weight to be given to such matters was entirely for them and to be balanced against countervailing points of distinction. (3) The features of similarity identified to the jury were not so "run-of-the-mill" as to fail to amount to a sufficient connection or relationship for the purpose of the rule as stated in DPP v P. In the context of this case and on the issue whether the complainants were lying in respect of their non-collusive complaints, the judge could not be faulted for admitting the evidence. While the "similar facts" rule remained a rule of law as to admissibility rather than a matter of discretion, its now more broad-ranging and contextual nature undoubtedly offered judges a greater degree of latitude in assessing whether a combination of features, not striking in themselves, amounted to a sufficient connection for the purposes of the rule. This was a borderline case which called for careful consideration by the judge in conducting the balancing exercise between probative force and prejudice. It plainly received such consideration. (4) In view of the uncertainties involved in establishing a link between LM's demeanour and distress and the earlier abuse, the judge should, as in R v Nigel Anthony Keast (1997) (1998) Crim LR 748, have excluded this evidence from the jury's consideration. Having admitted the evidence, however, the judge had given the jury a careful direction, which ended with a clear indication that they should attach little importance to such evidence.Appeal dismissed.

[2002] EWCA Crim 236

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