Supreme Court allows appeal where prior acquittal on similar facts renders conviction unsafe due to improper propensity evidence.

THE SUPREME COURT

528/04

Murray C.J.

Denham J,

Hardiman J.

Fennelly J.

McCracken J.

Between:

D.O.

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 8th day of March, 2006.

1. This is an appeal from the judgment and order of the Court of Criminal Appeal. That Court certified, pursuant to s.29 of the Courts

of Justice Act, 1924, that its decision of the 28th July, 2004, refusing leave to appeal against the applicant’s convictions of the 2nd

June, 2000, involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal

should lie to this Court. The applicant, who is a primary teacher by profession, was convicted of a number of offences of sexual

assault and rape in relation to a boy, D. Part of the evidence led against him was that of two other boys (B and M) who made

allegations of sexual assault but not of rape against him. The applicant was convicted on certain counts, including one of rape in

respect of which he received a ten year sentence. Subsequent to the convictions the subject of the present appeal the applicant

was tried for the offences of sexual assault, comprising the acts of which B and M had given evidence at the trial leading to the

applicant’s conviction. However, when the applicant was tried on these counts themselves, he was found not guilty by the jury.

2. The points of law of exceptional public importance identified by the Court of Criminal Appeal were:

(1) Is a conviction rendered unsafe and unsatisfactory where it is procured in part by similar fact evidence of extraneous

offences in respect of which the convicted person is subsequently tried and acquitted?

(2) Is similar fact evidence admissible notwithstanding that the proposed evidence contains within it allegations which are

contradictory of the prosecution case?

Background.

3. It is desirable to set out the factual background to this case insofar as it is known to the Court. In large part what follows is based

on what was said by counsel on each side on the hearing of this appeal. As will appear there are certain areas of disagreement but

they do not appear to be very significant for present purposes.

4. The applicant has been for many years a teacher in a National School in a country town. In the late 1990s allegations were made

against him of sexual offences on pupils over a long period of time. In all there were nine or ten such allegations, made by people of

varying ages. It appears that these accusations were disposed of in the following way:

5. In relation to one count, representing an allegation made by an adult person, the learned trial judge quashed the indictment on the

application of the defence, apparently on the grounds of excessive delay.

6. In respect of two other counts, each representing allegations by adult persons, the Director of Public Prosecutions then entered a

nolle proseuqui.

7. Three allegations were withdrawn by the persons who had made them. In relation to the remaining three allegations, the

prosecution applied to sever the indictment so that allegations of rape and sexual assault by a boy, D, would be tried first. This

involved leaving over to the later date allegations made by two other boys, B and M. The defence agreed to this and intended

themselves, in any event, to apply for severance. The prosecution account of this matter is slightly different; according to State

Counsel, the prosecution agreed to a defence request to sever.

8. The trial of the allegations made by D proceeded. The evidence of the boys B and M was introduced into the prosecution case

against the defendant in respect of assaults on D. This was done on the basis that it was “similar fact evidence”.

9. Subsequent to the applicant’s conviction on the counts in relation to D, he was tried and acquitted by the jury in respect of the

counts in relation to B and M. The incidents which gave rise to these counts were the same as those of which the relevant boys had

given “similar fact evidence” at the trials of the allegations in relation to D.

10. There is, of course, a great deal of law on the topic of similar fact evidence, coming from many Common Law jurisdictions.

However counsel on both sides of the present appeal agreed that there was no case from any jurisdiction which their considerable

researches could find dealing with the precise factual situation which arises here.

Position of the parties.

11. For the appellant, counsel said that the significant issue which arose as a result of the subsequent acquittal on the allegations

constituting the similar fact evidence related to the safety of the verdict. He was not seeking retrospectively to impugn the detailed

exercise of the learned trial judge’s discretion to admit the evidence in the circumstances of the case: he was submitting that it

should not have been admitted in principle because to do so offended the presumption of innocence. This presumption, he said,

applied everywhere except in proceedings where the defendant was charged with these very offences. Only by a conviction in such

proceedings would that presumption be displaced. In any event, he questioned whether evidence which was in some respects at

variance with that which it was meant to support could be admitted as similar fact evidence.

12. Counsel submitted that it was not necessary to ask the Court retrospectively to review the learned trial judge’s discretion in

admitting the evidence. The subsequent acquittal of the appellant was new evidence which of its nature was not available at the

time of the trial and this was sufficient to allow the Court to review the safety of the conviction, bearing in mind the acquittals on the

other charges and their legal consequence.

13. State Counsel adopted as her basic position the proposition that at the time of the trial the similar fact evidence was properly

admissible in law. It was then for the jury to consider its credibility and its effect, if any, in support of the evidence of the

complainant. She said that those two propositions were sufficient to determine the case in her client’s favour. Counsel was asked by

the Court what the position in law would have been if the acquittals had taken place before the conviction. In that situation, would

the evidence of B and M be available as similar fact evidence? State Counsel, on the instructions of her client, declined to take any

position on this issue. However she said two things of significance. The first was that she believed that, in practise, the Director

would not seek to rely on similar fact evidence which had itself been the subject of a trial leading to an acquittal. However she

declined to commit her client to any view as to the admissibility in law of such evidence. Secondly, she said she would open certain

English cases which might be of assistance to the Court. In further discussion counsel said that she was asking the Court to look at

the exercise of discretion by the learned trial judge leading to the admission of the similar fact evidence, on the facts as they were

when the judge exercised the discretion. Asked whether the subsequent acquittals were of any relevance on appeal she said that

“Obviously the acquittal is relevant, but it can’t be relied on in this appeal”. She gave two reasons for this. The first was a repetition

of her previous submission that the issue was to be looked at as of the time when the learned trial judge had made the decision to

admit the evidence. The second was that a court could not be affirmatively satisfied that the evidence had, in fact, played any role

at all in the jury’s decision to convict.

Decision on certain issues.

14. I am unimpressed by the two arguments just summarised. It is of course impossible to be sure what role any particular evidence

played in the jury’s decision. In the present case, however, there was a very serious issue argued in order to have the similar fact

evidence admitted. The evidence was then itself led and was the subject of the portion of the cross-examination of the accused,

who gave evidence in his own defence. It therefore appears that the parties, on each side, regarded the evidence as significant.

15. Even apart from that, in a great many cases where evidence is wrongfully admitted it could be argued that the defendant might

have been convicted anyway, if there was any other evidence at all. But this has never been regarded as amounting, in itself, to a

reason to refrain from quashing the conviction if apparently significant evidence has been wrongfully admitted.

16. While it is clear that the learned trial judge must make decisions as to admissibility on the facts as known to him at the time, I do

not accept that the Court is precluded from revisiting that decision in the light of new evidence, or information in the form of an order

of a court.

17. Nor can I accept that the fact that the allegations by D and M were tried subsequent to the allegations by B makes it impossible

for us to consider the effect of the acquittal on those allegations. The order of the trials was not chance: it was the decision of the

Director of the Public Prosecutions firstly to sever the indictment and secondly to proceed with the trial of the counts representing

D’s allegations first and to call the other evidence as similar fact evidence. No doubt this decision was taken in part for tactical

reasons, and that is quite legitimate. Any rational prosecutor, it appears to me, would proceed with his strongest and most serious

case first. A defendant has no such corresponding choice: he must proceed with the counts in the order selected by the prosecutor.

All of the above appears to me to make it impossible to dispose of the case simply on the basis that the acquittals post-dated the

conviction on the first counts to proceed. To regard the order in which the trials took place as determinative of this issue would be to

disregard any concept of “egalité des armes” as that term features in the Strasbourg jurisprudence. In a very relevant way, though

without using the terminology, this concept underlies the decision of Finlay P. in The State (O’Callaghan) v. OhÚaghaigh [1977] IR 42.

There, the issue was as to whether the DPP could use his power of nolle to abort a trial which was going badly for him, and then start

the case afresh. It was held that he could not since to allow this would, in the words of the learned former President, at page 54:

“… create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused

respectively [as to be] a proposition of law which signally failed to import fairness and fair procedure”.

18. Accordingly, I conclude that the fact that the acquittals on the counts representing the similar fact evidence took place after the

convictions on the counts in respect of which the same material was used as similar fact evidence does not prevent this Court or the

Court of Criminal Appeal from taking the acquittals into account when considering if the convictions are unsafe or unsatisfactory.

A difficulty.

19. If this issue requires to be resolved, it is a considerable difficulty that the Director of Public Prosecutions has elected to make no

submissions on it one way or the other. This decision deprives the Court of the assistance, essential in an adversarial system, of

skilled advocacy on one side and on the other of a disputed point of law. The Court would be all the more reluctant to embark on this

exercise in light of the notorious complexity of the area of similar fact evidence and the risk of giving a decision which would be

binding in other courts without hearing proper argument on each side. The complexity of the topic is amply illustrated by the thirty

cases from Ireland, England and Wales, Australia, Malaysia, and the United States which comprised the agreed Book of Authorities.

20. Fortunately, perhaps, it is not necessary to address those issues because another issue arose in the course of the appeal which

is capable of determining the fundamental question in this case, as to whether the jury verdict should be allowed to stand.

A narrower issue.

21. Assuming, purely for the sake of this exercise, that the similar fact evidence was rightly admitted, did the use actually made of it

on behalf of the Director at the trial, and the conduct of the prosecution generally, correspond to the purpose for which such

evidence may be lawfully admitted, and the requirements of fairness generally? This topic was amply, indeed exhaustively, covered on

the hearing of this appeal during the submissions of leading counsel for the Director, who conducted the cross-examination of the

appellant at his trial.

Similar fact evidence and evidence of disposition.

22. For several centuries now the Courts have been alert to the distinction between evidence which is admissible because it is

genuinely probative (even if it involves more general prejudice to the accused) on the one hand and evidence which is merely

prejudicial as tending to show that the accused is a person of a disposition likely to commit the crime in question. In Cross on

Evidence, 5th edition, this rule is stated as follows:

“Evidence of the misconduct of the accused on other occasions must not be given unless it goes beyond showing a general

disposition towards wrong doing, or towards the commission of a particular type of crime, and has specific probative value in

relation to the charge before the Court, due regard to being paid to the other evidence in the case, and to defences which may

reasonably be supposed to call for rebuttal”.

23. The practical application of the proposition so simply stated has proved very difficult. It is usual now to begin a discussion of the

judicial resolutions of these difficulties with the leading case of Makin v. Attorney General for New South Wales [1894] AC 57. The

pedigree of the issue however is much longer see: R. v. Bond [1906] 2 QB 389 where the older cases are reviewed. There are,

however, two basic propositions of universal application. Both of these are stated so well by Lord Herschell L.C. in Makin that much

profusity of reference may be saved by quoting them. The learned judge said at page 65:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of

criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a

person likely from his criminal conduct or character to have committed the offence for which he is being tried”. (Emphasis

added)

24. That is the exclusionary aspect of the rule. It will be observed that it extends both to extrinsic “criminal conduct” such as that to

which the similar fact evidence is directed and to character. The inclusionary aspect of the rule is then immediately stated as follows:

“On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it

inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the

acts alleged constitute the crime charged in the indictment were designed or accidental, or to rebut a defence that would

otherwise be open to the accused.”

25. In the almost equally well known case of DPP v. Boardman [1975] AC 421, a case often regarded as having materially altered

the law as to similar fact evidence, these propositions were again considered. Lord Hailsham of St. Marylebone carefully analysed the

two paragraphs just quoted. Lord Hailsham comes to the conclusion that no more definite rule can be laid down because “The rules of

logic and commonsense are not susceptible of exact codification when applied to the actual facts of life in its infinite variety”. He

contends, therefore, for a case by case decision on admissibility, based on probative value and regarding rules “as guides, but not as

shackles…”. He then goes on:

“What is important is not to open the door so widely that the second proposition merges in the first…”.

26. I take this to mean, simply, that the independent existence of the two contrasting propositions expressed in the first and second

paragraphs quoted above from Lord Herschell must be recognised and maintained.

The relevance of this to the present case is that it was frankly admitted by counsel for the Director on the hearing of this appeal that

the long and remarkable cross-examination of the appellant, recorded in volumes 9 and 10 of the transcript of the trial, was

conducted to establish that the appellant was creating a false view of his sexual disposition and of testing his credibility. Counsel

asserted that he was entitled “to get a fairly total view of [the appellant]”.

The cross-examination.

27. This cross-examination extended over forty-one pages of transcript on the 9th day of the trial and forty pages on the 10th day.

Some 473 questions were asked.

28. Before embarking on an analysis of this cross-examination it is important to record that this Court has on a number of occasions

emphasised the central and indispensable position in our system of justice held by what Henchy J. called the “truth eliciting” process

of cross-examination. It is necessarily only to mention:

Kiely v. The Minister for Social Welfare [1967] I.R. 267;

Re Haughey [1971] I.R. 217;

Maguire v. Ardagh [2002] 1 I.R. 385;

O’Callaghan v. Mahon (Supreme Court, unreported, 9th March, 2005).

29. In proceedings such as the present where everything that makes life worth living may be at stake, it is to be expected that

cross-examination on both sides will be hard, detailed, challenging and bruising. It is equally clear that much discretion must be left to

the cross-examiner, for reasons indicted in my judgment in Maguire v. Ardagh. No topic can be taboo so long as it passes the

criterion of having some proper use in the cross-examiner’s task.

30. With these things fully in mind, I have to say that I have never heard or read a cross-examination like that featured in this case.

The appellant, the defendant in the criminal trial, was an unmarried man, a school teacher and a person who had held high office in a

scouting organisation. On this basis a remarkable series of questions was put to him culminating in the last three pages of the cross-

examination with suggestions that he “fitted the bill” of the type of person that “[the complainant] contends you are, a vicious sexual

abuser…”. It was then put to him that he did so “in terms of profile”: the first aspect of this profile put by counsel was “this interest

in scouting and boy scouts”. It was then put to him that:

“… The profile you have is the profile that one expects to find of a person who had a deviant interest or a perverted interest in

terms of suffering from paedophilia”.

and that he had violated [the complainant].

31. It will be observed that this is plainly, openly, and in so many words cross-examination as to the defendant’s disposition to commit

offences of this sort on the basis of his criminal conduct (the similar fact evidence) and criminal character (based on the matters to

be discussed below).

32. Many questions, including a long sequence recorded over ten continuous pages of the cross-examination were directed to

the appellant’s scouting involvement. This was alleged to represent “a colossal appetite for engagements involving boys”. When

the defendant pointed out that most of his work in the high rank he had occupied for twelve years involved dealing with

leaders, administration and building management this was misrepresented as a suggestion that “you wouldn’t have seen a boy

at all”. The defendant was asked, apparently without any factual foundation, whether he had been involved in any form of

investigation of an allegation that a person had failed to comply with the code in relation to the appropriate way of handling

young children. Certainly, when he denied it, no instance was put to him. In the course of this facet of the cross-examination

counsel, remarkably, conceded that he (counsel) was given to extravagant language. He moved on to put the similar fact

evidence, or a substantial portion of it, to the defendant saying “[the witness] does not seem to have been challenged

vigorously on that by your counsel”. Counsel then [Book 10, page 20] said that he:

“Would like to know from you what is your sexual make up in some detail?”.

33.The defendant said he was unmarried and at his current age was unlikely to marry.

34. Counsel responded:

“There is always Lisdoonvarna?”.

35. Counsel then asked him about a particular relationship with a woman and asked:

“Did you indulge in sexual intercourse?”.

36. He got a negative answer to this coupled with a statement that this would not be allowable for him, for religious reasons. He was

asked in some detail about such intimacy as there may have been in this relationship, which seems to have taken place in the late

1970s, with counsel observing:

“Some people have very long sexual memories and if they had a really major and enjoyable smacker of the French variety they

might even remember it up to their very grave if they were of the romantic type”.

37. The Garda inquiry was then recapitulated and counsel inquired (Book 10, page 23):

“You don’t seem to have many erections”.

38. Counsel then returned to the relationship previously mentioned and another and to the defendant’s assertion of his religious

principles in relation to sexual activities. Counsel put:

“There are people, although they subscribe to certain codes, be they religious or ethical, they break them, do you understand

what I mean?”

and

“It is open to one to actually sin against a code”

and

“Have you ever had sexual intercourse with a female person?”

39. A similar question followed, about a male person.

40. A little later counsel asked:

“Well what do you then, Mr. O, with your sexual urges?”

41. Two questions later (Book 10, page 25) he was asked:

“Do you masturbate?”

42. Two questions later counsel said:

“There are people who, with the passage of time can, can loose the capacity. I suppose there is Viagra and drugs of that

nature apparently but are you saying that you have no sexual capacity anymore, no libido?”

43. There was then a discussion about an incident in which a relation of the complainant had stabbed the defendant, and about a

heart attack he had separately suffered. Ten questions after the topic was first introduced counsel said:

“Now back to masturbation, when did you last masturbate?”

44. There was then a brief recapitulation of the reasons why the defendant “was frustrated in the great matrimonial stakes of life and

it just never happened for you”. The defendant said he had not met the right person. It was then put to him (Book 10, page 27):

“But I am putting it to you Mr. O. that there is not for you any right person because of your make up and of a perversion you

suffer from, you are fixated upon children because you are a paedophile”.

45. Both the conclusion and the component parts of this cross-examination appear to me plainly devoted, in the most explicit terms,

to suggesting that the defendant was a “pervert” i.e. was sexually attracted to children. Extra curricular work at school, his scouting

activities and his giving of extra tuition to children was suggested to be evidence of this proposition. The fact that he was unmarried,

had not a relationship with a woman for a considerable period and had no obvious sexual outlet was also said to support this

proposition. On this appeal, counsel expressly justified this approach. For example, he justified the very heavy emphasis on the

scouting involvement on the basis that:

“Rather than being at the local tennis club or badminton club where he might find female company he was at boy scouts”.

46. Counsel did say that “Boy scouts was just one aspect of the cross-examination”, but it seems to me to account for eleven or

twelve pages, ten of them continuous.

47. I have no doubt that this cross-examination is all of a piece and was all designed to lead up to the allegations expressly made in

the last three pages: that the defendant “fitted the bill” and “had the profile” of a “vicious sexual abuser”. To express this in terms of

the language of the cases on misconduct evidence, it expressly constituted allegations that the defendant should be seen, as a result

of criminal conduct (in relation to the boys) and character (being unmarried, not pursuing relationships with women anymore,

refraining from sexual intercourse as a matter of religious principle and, later, because of declining interest, and being involved in boy

scouts, rather than going to some place where he might find female company), had a disposition to commit offences of the sort

charged.

48. That is precisely the use of evidence relating to previous misconduct or character which has been regarded as inadmissible for

centuries.

49. Quite apart from this the contents and, as far as one can judge from a transcript, the tone of the cross-examination was apt to

belittle and oppress the defendant. Questions about whether he masturbated, what relationships he had and what he did with his

sexual urges are not all probative and are manifestly prejudicial. Moreover, they were prejudicial no matter how answered if, as they

were, they were negatively answered, it could be and was suggested that the defendant’s portrayal of himself was freakish. And if

they had been answered in quite another sense, by the plaintiff claiming to have lots of sexual outlets of whatever kind no doubt

these too would have been explored in some detail with requests to identify partners so on.

50. It must be said that the plain attempt to suggest that involvement in scouting on the part of a bachelor school teacher is

remotely suggestive of paedophilia is insulting to a very reputable group of people, utterly lacking in logic, and an attempt to appeal,

in a court of law, to pure impressionistic prejudice. Some of this may have arisen in the heat of the moment or may be attributable to

counsel’s extravagance of language and of thought. But it is quite out of keeping with the proper practise of cross-examination as I

have known it over a period of thirty years.

Justification for cross-examination.

51. Leading Counsel for the State, as we have seen, did not deny that the cross-examination was directed at showing the appellant’s

disposition. He said however that this was justified in the circumstances of the present case by three matters which occurred in

direct examination, on pages 86 and 87 of Book 8. These were firstly references to the appellant’s involvement in scouting, secondly

reference to the fact that he was unmarried, and thirdly references to the fact that he was of a heterosexual orientation. No other

part of the direct examination was relied on as opening the door to the cross-examination conducted. Counsel also said on several

occasions that the complainant had been cross-examined at some length and about intimate matters.

52. The complainant was indeed cross-examined at some length. He was not present in the Court but appeared by video link. The

nature of the allegations meant that a portion of the cross-examination was in relation to physical intimacies but these were limited to

the ones he alleged against the defendant. The entire content of the cross-examination was clearly and obviously relevant to the

allegations made and no attempt was made to impeach his character generally. As far as one can judge from a transcript the tone of

the cross-examination was polite and gently but at times insistently probing. The cross-examination of the complainant was wholly

and properly related to the matters at the centre of the case he was making against the appellant.

53. Counsel said in this Court that the significant amount of cross-examination directed to scouting was relevant in order to establish

“If his scouting activities had brought to his attention questions of ‘appropriate behaviour’ in one to one dealings (with children)”.

54. Taking the broadest possible view of certain aspects of the cross-examination whose meaning is not clear, only a very small

percentage of the large portion of it devoted to scouting could be regarded as having any bearing, even introductory, on that

question. Assuming the issue defined by counsel to be relevant, it appears to me that some 90% of the cross-examination about

scouting has no conceivable reference to it. The suggestion that the appellant’s scouting activities revealed a “colossal appetite for

engagements involving boys”, for example, have no conceivable relevance to the topic which counsel said was the basis of the cross-

examination about scouting. The fact that the appellant’s scouting involvement was the first item alleged by counsel as part of the

“profile” of Mr. O. as a “vicious sexual abuser” entirely undermines the suggested basis of the cross-examination on this topic.

Counsel’s suggestion on the hearing of this appeal (that the fact that the defendant did not go to the Tennis Club or the Badminton

Club, where he might meet women, but instead to the Boy Scouts was a justification of the cross examination) is equally inconsistent

with it. So is the plain suggestion made that it was particularly odd for a teacher, who dealt with young boys throughout his working

day, to seek further involvement with them after hours.

55. The appellant said that he was unmarried and gave some details of an event in his earlier life, the sudden and tragic death of a

sister in her twenties – which distracted him from normal social life at a vulnerable age. He also said, when asked, that his sexual

orientation was heterosexual.

56. State Counsel justified large parts of the cross-examination by saying that they arose naturally out of the plaintiff’s assertion of

heterosexuality. I cannot agree that this is so, quite apart from any question of whether such questions would otherwise be proper.

In questions that were scornful, sometimes mocking, counsel caused the witness to admit that he had never had sexual intercourse

either with a woman or with a man, suggested that he could have disregarded any religious based inhibitions he might have in that

regard, that he could deal with any loss of inclination with Viagra or some other drug and could find a partner in Lisdoonvarna. Apart

from flourishes like these whose purpose seemed to be more to mock than to extract information, he proceeded to suggest that the

appellant had no sexual outlets and was unmarried because he was a pervert. His status, occupation, and scouting involvement and

lack of sexual outlets were relied to ground the suggestion that he “fitted the bill” or the “profile” of a vicious sexual abuser. Asked on

the hearing of this appeal what he meant by profile, leading counsel said that a profile was a drawing or painting or photograph of a

person taken from the side. He then cited a number of dictionary definitions of the term, all equally without conceivable reference to

the use he had himself made of the term in cross-examination. He eventually explained his question in relation to “profile” as meaning:

“Other aspects to your make up which would permit a person looking at you to come to a view of you in terms of your

sexuality”.

57. This is plainly an attempt to establish a disposition.

58. I cannot agree that an assertion that the plaintiff is a bachelor of heterosexual orientation opens the door to cross-examination

along the lines that he is, by disposition, a paedophile. Statements as to marital status are routinely made by witnesses, even in

traffic accident cases. Moreover, the cross-examination was not directed at suggesting that the appellant was homosexual or

bisexual: indeed the cross-examination elicited quite deliberately that the appellant had no full sexual experience with either sex. The

cross-examination was directed at painting a picture of him as a pervert and a paedophile and at very little else.

59. State Counsel also submitted that the lengthy cross-examination in relation to scouting was directed at testing the assertion,

attributed to the appellant, that he rarely saw boys, in the course of his scouting work. The appellant had not said this. He said that

in the course of most of his involvement, including specifically the twelve years he had spent in high rank, he was operating in a

managerial capacity. It was counsel’s mocking summary of this:

“You wouldn’t have seen a boy at all?”

which was contradicted by the appellant.

Conclusion on cross-examination.

60. At Book 5 of the transcript there is reported the elaborate argument on the basis of which the similar fact evidence was sought to

be admitted by the prosecution. Counsel himself said that:

“If the evidence is being merely [introduced] to show propensity and it has been produced for that purpose then it ought not to

be admitted”.

61. He went on to illustrate a number of aspects in common between the story of the complainant and the story of the two similar

fact witnesses thereby making them relevant “…in such a way to negative any suggestion of accident and to place that conduct

within terms of it being deliberate, designed conduct”. In my view the similar fact evidence and the evidence of character was used in

cross-examination of the complainant deliberately and almost exclusively to establish his disposition. It was done in language which

was, to use counsel’s own term, extravagant: in the words of the Court of Criminal Appeal the cross-examination was not particularly

attractive in tone. I feel this is an understatement and at various aspects of the appellant’s life, not themselves of any probative

value, were used to portray him as one who “fitted the bill” of a paedophile. This is in clear breach of the very long established rule of

law summed up in the first paragraph quoted above from Lord Herschell. It was also unjustified by anything said in the course of the

defence case.

An aberration.

62. Having thus criticised the cross-examination of the defendant at the trial, it is right to point out that cross-examining counsel is a

barrister not merely in good standing but of considerable and deserved repute. He rightly enjoys the confidence of a large clientele

and is habitually assiduous in their interest. The cross-examination in this case is an isolated incident and is in the nature of an

aberration. It is right also to point out that it was not the subject of objection while it was in progress in the Court of trial, perhaps

because opposing counsel feared that objection would add emphasis to the question. However that may be, criticism of this single

cross-examination should not be seen as an attack on the advocate’s general competence, probity and indeed dedication.

Conclusion.

63. For the reasons given I would allow the appeal. In all the circumstances of the case, I feel that a retrial should not be ordered.