The defendants were charged with indecent assault on a child of 5, who said that the defendants had hurt her in the back and said naughty things to her. The Judge also admitted evidence from the child’s mother of the complaint the child had made to the mother. The essence of that evidence was to the effect that the defendants had lifted up her dress and pulled her knickers down and touched her nipples. Also admitted was evidence of the possession by the defendant of pornographic magazines, and answers as to his sexual proclivities given by the defendant in interview.
Held: Harry Ognall QC said: ‘The first and primarily important point to note arising from the terms of that complaint is that none of that allegation formed any part of the child’s evidence before the jury. We draw attention to this as the starting-point, because it cannot be doubted as a matter of long-established law that the whole and exclusive rationale for the introduction of a recent complaint in cases of alleged sexual crimes lies in its utility to the jury in determining whether or not the complainant has been consistent in the accounts she has given. For this purpose we refer to and agree with the passage set out in Archbold (42nd ed.) at para.4-308, p.403, which reads: ‘The mere complaint is no evidence of the facts complained of, and its admissibility depends on proof of the facts by sworn or other legalised testimony.’ It must, in our view, follow that if the terms of the complaint are not ostensibly consistent with the terms of the testimony, the introduction of the complaint has no legitimate purpose within the context of the trial. It is for this reason that the courts have treated the matter in the past as is summarised in para. 4-310 of Archbold (42nd ed.), which summary in that paragraph we respectfully agree with and adopt. It may be that if the learned Judge had confined the admitted evidence to the fact of a complaint, without allowing in its detail, other considerations would have applied. But, of course, the consequences of so doing might have been to compel the defendants to adduce evidence of its terms in an effort to demonstrate inconsistency. The prejudice attendant thereon would no doubt be the subject of complaint to this Court, and we express no concluded view on it if only for the reason that it did not occur in this case. The fact is that not merely a complaint but the terms of the complaint were admitted in evidence.’
Mustill LJ spoke as to the admissibility of evidence of the defendant’s propensities: ‘One must begin by asking whether, in a case where the issue is whether the act alleged by the complainant ever took place at all, evidence is admissible that the defendant had done similar acts in the past, or could be shown through the possession of incriminating articles or otherwise, to have a leaning towards such acts.
It is not hard to imagine legal systems in which such evidence would not only be admissible, but would be regarded as having high probative value. Nevertheless, this has never been the policy of the English criminal law, not so much on the grounds of logic, but because it is considered that to entrust it to a jury would be too great a risk. It is unnecessary to cite any more authority for this proposition that the oft-quoted opinion of Lord Herschell in Makin v. Attorney General for New South Wales  AC 57.
The principle is subject to exceptions, as Lord Herschell himself acknowledged. Thus if a person accused of indecently touching a child admits the contact but asserts that it was accidental, evidence of previous similar acts may be admitted, because it is relevant to the issue of accident or design: see Makin (supra) and Bond  2 K.B. 389. So also if there is a defence that acts prima facie attributable to guilt in fact had an innocent explanation. See Gale (1987) (unreported), where a defendant who had taken indecent photographs of his young step-daughter claimed that he had done so for artistic purposes at the instigation of his wife, and where it was held to have been proper to admit evidence that he had written pornographic fantasies to describe, in a manner which bore a close resemblance to the very type of incident which the girl had herself described, the sexual initiation of a young girl by her father.
Again such evidence may be permitted where it goes to disprove a defence than an association with the complainant bears an innocent explanation. Another exception exists where there is no doubt that an offence was committed by someone, but where the defendant denies that he was that person, and where the evidence is of acts done by the defendant which bear a striking similarity to those done by the offender on the occasion in question: Thompson v. DPP (1918) 13 Cr.App.R. 61… Reading (1966) 50 Cr.App.R. 98… and Mustafa (1976) 65 Cr.App.R. 26. (Whether Twiss (1918) 13 Cr.App.R. 177,… can now be justified on this ground may one day have to be discussed. We need not decide this here.)
Although these exceptions are well established, it is also quite clear that they are not brought into play simply through a denial that the acts in question ever happened at all. This is demonstrated by Cole (1941) 28 Cr.App.R. 43, Horwood (1969) 53 Cr.App.R. 619… and perhaps most clearly by Lewis (1983) 76 Cr.App.R. 33, where evidence of paedophilic tendencies was held admissible in relation to counts where the touching was said to have been innocent or accidental, but not in relation to an incident which could have had no innocent explanation, but which the defendant denied had ever taken place.
Here it cannot be said that the appellant had raised any defence of the types we have mentioned: he did not admit the incidents whilst denying that they involved any criminality on his part. He asserted that the boys made them up. In argument at the trial counsel for the prosecution asserted, and the judge must be taken to have accepted, that the book was ‘strong probative evidence that he was a homosexual.’ The authorities show that this is not a permissible ground for admitting the evidence, any more than was the evidence of the questions about homosexuality in the police interviews, and of the visit to Paris, which were properly omitted pursuant to the agreement reached before the trial began.
In our judgment the evidence concerning the booklet should not have been admitted, and the booklet itself should not have been seen by the jury.’
Harry Ognall QC, Mustill L.J
(1990) 90 Cr App 91
England and Wales
Cited – Makin v Attorney-General for New South Wales PC 12-Dec-1893
The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
Cited – Rex v Bond 1906
The court considered the rule excluding evidence of the defendant’s bad character. Kennedy J said: ‘The general rule cannot be applied where the facts which constitute distinct offences are at the same time part of the transaction which is the . .
Cited – Rex v Twiss 1918
Cited – Regina v Gale CACD 1987
The defendant had taken indecent photographs of his young step-daughter. By defence he claimed that he had done so for artistic purposes at the instigation of his wife.
Held: It had been proper to admit evidence that he had written . .
Cited – Regina v Lewis 1983
The defendant appealed convictions for sexual assaults on minors.
Held: Evidence of paedophilic tendencies was properly admitted in relation to counts where the touching was said to have been innocent or accidental, but not in relation to an . .
Cited – Thompson v Director of Public Prosecutions HL 1918
The defendant was charged with gross indecency against boys. The defendant denied that he was the offender. Evidence was admitted that on arrest the defendant was in possession of powder puffs and that a search of his rooms uncovered indecent . .
Cited – Regina v Mustafa 1976
Cited – Regina v Horwood 1969
Cited – Rex v Cole 1941
Cited – Regina v Horwood 1969
Cited – Regina v Reading 1966
Cited – Spooner, Eric Charles v Regina; (Evidence: Sex abuse) CACD 25-May-2004
The defendant appealed his convictions for child sex abuse, involving assault, rape and buggery, saying that evidence of a recent complaint by a schoolgirl friend of the complainant which was not consistent with other evidence of the complainant . .
Cited – Regina v B (Evidence: Propensity) CACD 27-Jan-1997
The defendant appealed his conviction for indecent assaults, denying that any assaults had taken place. He complained that the judge had allowed questioning about his sexual propensities.
Held: Propensity to acts is not admissible as evidence . .
Cited – Regina v A S CACD 20-Jan-1997
The defendant appealed against convictions for several sexual offences. The alleged victim had originally denied that any offending had taken place. The defendant denied that anything had happened. He complained now that the court had accepted in . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 June 2022; Ref: scu.198134