Where a defendant was protected by the principle of doli incapax and where as a matter of law at that time, the defendant was deemed incapable of committing an offence of buggery, that protection did not extend to make the evidence inadmissible as background evidence to similar offences.Appeal, with leave of the single judge, against conviction at Lincoln Crown Court on 19 November 2002 for indecent assault and buggery. The defendant ('D') was sentenced on 10 January 2003 to 12 months suspended for two years. The offences charged covered a period when D was between 14 and 20 years of age. At trial the judge permitted in evidence the detailed account of abuse during the years before D was 14 years of age. The evidence was not admitted as similar fact but as background evidence. The victim ('V') gave evidence that he met D in 1983, when he was 6 years old, at a judo club run by D's parents. V was first abused in late 1983. The abuse began by touching and fondling and escalated to masturbation, oral sex and buggery. V did not tell anyone because he was embarrassed and because D had told him from a young age that it was normal behaviour. In 1998 V told his wife about the abuse and saw his GP. When D was arrested he denied any sexual activity and said that V was neurotic and had fabricated the allegations to deflect from having told his wife he was having an affair. D appealed conviction on the grounds that the judge erred in admitting evidence of allegations of abuse prior to the period covered by the indictment, as D was deemed incapable of the crime due to the presumption of doli incapax and incapable at that time, in law of an offence of buggery. Further, the summing up was unfair.HELD: (1) It did not follow from C v DPP (1996) 1 AC 1 that evidence of conduct as background evidence had to be excluded as a result of the doli incapax principle. On a charge properly brought, evidence relevant to those charges which but for the protection of the doli incapax principle would have been evidence of conduct, could be admitted as evidence of fact. The protection given by doli incapax did not extend to make evidence inadmissible. (2) Even though in law D was deemed incapable of committing buggery, again that did not make evidence inadmissible as background evidence. In R v Williams (1893) 1 QB 320 there was no suggestion that evidence of a defendant's conduct was inadmissible even though the offence at law could not be made out. (3) The judge was entitled to admit the evidence as background evidence as a matter of discretion. The jury was given sufficient guidance on the evidence in summing up and nothing that happened rendered the conviction unsafe.Appeal dismissed.

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