Jersey Unreported Judgments

[2010]JRC014

ROYAL COURT

(Samedi Division)

26^th January 2010

Before     :

Sir Philip Bailhache., Kt., Commissioner, sitting alone.

The Attorney General

-v-

Ruslans Boidakovs

S. E. Fitz, Crown Advocate.

Advocate R. J. MacRae for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant is to stand trial on 8^th February, 2010, on an Indictment containing one count of rape involving one woman and two counts of indecent assault involving another.  I have been asked to determine two preliminary applications which have been made by the Crown.

2.        The first is that I should grant permission for a screen to be used when the two complainants give their evidence.  The second is that I should admit the evidence of a third woman, Miss P, under the similar fact rule.

3.        The first application seems to me to be relatively straightforward.  Both counsel agree that the law was settled by the Court of Appeal in the case of Myles-v-Attorney General [2005] JCA 065;[ 2005] JLR N 19.  In that case the Court upheld the decision of Birt, Deputy Bailiff, (as he then was) not to follow the English case of R-v-Schaub and Cooper, The Times, 3 December 1999.  The Court stated, at para 19:-

"In the judgment of this Court the Deputy Bailiff was entirely right to recognise that Jersey common law must move forward, especially in the protection and assistance of witnesses in criminal trials. In every case in which it is sought to use screens to shield a witness, the judge has first to be satisfied either that the witness may be affected in giving evidence by fear or distress if not screened from the defendants, or that the quality of a witness's evidence may be adversely affected, or that for some other reason applying specifically to the witness, the witness may be so affected. If, and only if, the judge is satisfied of this, the judge will then need to balance the adverse effect upon the witness, if there is no screen, against the potential prejudice the defendant if there is screening.. The judge in this way has to balance the just treatment of the defendant with both the just treatment of the witness and the interests of justice in the trial being fair to both the defendant and the witness. The factors mentioned in Section 17 of the English 1999 Act are, for the most part, unlikely to be relevant in cases in this jurisdiction but, if they are relevant, they will no doubt be taken into account by the judge in exercising his discretion."

4.        Mr MacRae for the defendant conceded that the witnesses might be affected by distress and that the quality of their evidence might be adversely affected.  He submitted, however, that the potential prejudice to the defendant outweighed the adverse effects upon the witnesses and that I should decline to rule that the evidence should be given behind a screen.  He pointed out that the witnesses had socialized with the defendant since the alleged offences.  That may be so, but it does not seem to me to be relevant to the balancing exercise which is the second stage of the Court of Appeal's test.

5.        I acknowledge that this balancing exercise must be performed.  In my judgement, however, it will be rare that an application for screens has passed the first hurdle, where the judge has found that the witness is suffering from fear or distress, or that her evidence might be adversely affected if given without screens, yet those factors are held to be outweighed by potential prejudice to the defendant.  In this case I have no hesitation in finding that any potential prejudice to the defendant can be removed or diluted by an appropriate direction from the judge.  I therefore grant leave for the evidence of the complainants to be given behind a screen which shields them from the defendant's line of vision.

6.        The second application is more difficult.  The Crown does not seek to use the evidence of the two complainants named on the Indictment as cross-corroborating similar fact evidence.  The complainants spoke to each other before they made their allegations to the police and it cannot therefore be said that their allegations were made independently.  The Crown Advocate does however seek to adduce evidence from Miss P who reported an act of alleged indecency by the defendant against her.  Miss P did not seek to make a complaint against the defendant.

7.        Both counsel agreed that the leading case on similar fact evidence was DPP-v-P [1991] 2 AC 447 which has been applied on several occasions by this Court.  The test is no longer one of 'striking similarity' but whether the probative force of the evidence in support of the allegations that the defendant committed these offences against the complainants is sufficiently great to make it just to admit the evidence notwithstanding that it is prejudicial to the defendant in tending to show that he is guilty of another crime.  The question is broadly speaking whether there is such an underlying unity between the alleged offences and the evidence sought to be adduced as to make coincidence an affront to common sense.

8.        The evidence of Miss P is that she was awoken during the night or early hours of the morning by the defendant knocking at her bedroom window.  She told him to go away on several occasions, but he persisted, climbed through the window and lay down on Miss P's bed.  She was lying under the covers wearing only her underwear.  She became angry with the defendant but he would not go away and tried to remove the bed covers.  The defendant was drunk, but Miss P was not.  Her boyfriend, who had been asleep in the adjacent bathroom, heard the noise and came into the bedroom.  He shouted at the defendant who promptly left the room.

9.        Miss Fitz submitted that this evidence ought to be admitted.  She suggested that the underlying unity was to be found in the facts that the three women were adults in their 20s living in the staff quarters of the Landmark Inn, that they attended parties together, and that the defendant had apologized to each of them after the event for his conduct.  The Crown Advocate sought also to argue that each of the women was intoxicated and that the defendant had taken advantage of this situation.  Counsel for the defendant contended that there was no evidence that Miss P was drunk, and that what had happened fell short of an indecent assault.  There was no touching of Miss P, let alone any indecent touching.  Mr MacRae submitted that the evidence of Miss P was not relevant to any issue that the jury would have to decide; it was simply prejudicial.

10.      On balance it seems to me that the evidence of Miss P falls on the wrong side of the barrier.  There is no underlying unity between her evidence and that of the complainants.  Her evidence is not sufficiently probative of any of the issues which will be before the jury.  If I am wrong on that, it seems to me that the prejudicial effect of the evidence outweighs its probative value and I would exclude it on that ground too.  I therefore exclude the evidence of Miss P.

Authorities

Myles-v-Attorney General [2005] JCA 065.

Myles-v-AG [2005] JLR N 19.

R-v-Schaub and Cooper, The Times 3 December 1999.

DPP-v-P [1991] 2 AC 447.