Jersey Unreported Judgments
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URL: http://www.bailii.org/je/cases/UR/2016/2016_224.html
Cite as: [2016] JRC 224
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- Cullen [2016] JRC 224 (06 December 2016) URL: http://www.bailii.org/je/cases/UR/2016/2016_224.html Cite as: [2016] JRC 224 |
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Before : |
Sir Michael Birt, Commissioner, sitting alone. |
The Attorney General
-v-
Fergus Gerard Cullen
Ms S. J. O' Donnell., Crown Advocate .
Advocate J. W. R. Bell for the Defendant.
JUDGMENT
THE commissioner:
1. The defendant faces an indictment containing four counts of indecent assault. Counts 1 and 2 involve one complainant ("Complainant 1") and Counts 3 and 4 involve a second complainant ("Complainant 2"). The defendant has brought an application contending that Counts 1 and 2 are not properly joined in the same indictment as Counts 3 and 4. If he fails on that application, he submits as an alternative that Counts 3 and 4 should be severed and tried separately from Counts 1 and 2.
2. I heard the application on 17th November, 2016, at which time I reserved my decision. I announced my decision to reject the defendant's application on 21st November, 2016. This judgment contains my reasons for reaching that decision.
3. It is necessary first to outline the case against the defendant. I take this substantially from the Crown's case summary and the witness statements of the two complainants.
4. Counts 1 and 2 allege indecent assault on Complainant 1 on 18th and 19th January, 2010. Complainant 1 is a male who was aged 20 at that time. He met the defendant when he started work at a building site on 18th March, 2010. The defendant also worked on that site. Complainant 1 did not know the defendant but the defendant told Complainant 1 that he knew certain details about Complainant 1's personal life such as where he lived and where he drank. Not long afterwards, the defendant told Complainant 1 that he knew Complainant 1 had been in an intimate relationship with a girl he named and then said "apparently you're hung like a horse". Complainant 1 thought that this was just banter and laughed it off. However during the course of the day the defendant made further comments to Complainant 1 which he took to be about the size of his penis e.g. "you should be proud of that. Look at the size of that lump".
5. Later that day the defendant asked Complainant 1 for a drink after work and they consumed some 3 - 4 pints in a pub. On leaving the public house, the defendant suggested they walked together as they lived in the same direction. Complainant 1 mentioned that he liked Irish coffee. The defendant informed Complainant 1 that he was famous for his Irish coffee and invited him back to his flat to show him how to make one.
6. Once inside the flat the defendant put on some Irish music. At one stage he nudged Complainant 1, staring at his groin and said "I'm intrigued by the size of it" and he then moved his hand towards Complainant 1's groin, who quickly pushed it away and made it clear that he was not interested.
7. The defendant went to the kitchen to make the Irish coffees and Complainant 1 saw him putting a substantial amount of whisky into the coffees.
8. Complainant 1 went to the bathroom and while he was urinating, the defendant opened the door and tried to look over Complainant 1's shoulder to see his penis. He was saying things like "let me see it because you need to prove it". Complainant 1 returned to the lounge and sat down. He was afraid to say anything because the defendant had told him earlier that he had been a boxer.
9. The defendant then got a tape measure out, extended it and said words to the effect "what's the size of yours? That's the size of mine". He then started to prod Complainant 1's leg and penis with the tape saying "I can see the size of it floppy through your shorts". This forms the basis of Count 1.
10. The defendant then stood up, undid his jeans and got his penis out which he started flicking. When Complainant 1 asked him what he was doing, he replied that he was getting it a bit hard so that they could measure their penises. Complainant 1 made it clear he was not interested and the defendant put his penis away. Whilst doing so, he asked Complainant 1 if he trimmed his pubic hair. The defendant then sat down next to Complainant 1, nudged him and said "this is a safe house, it's between us, mine and your business...". Complainant 1 stood up to go but the defendant asked him to wait whilst he played a song on his guitar, following which Complainant 1 left.
11. The next day, 19th March, the defendant approached Complainant 1 at work and engaged in a conversation about a mutual acquaintance. At one stage in the afternoon they were alone. When Complainant 1 adjusted his shorts, the defendant told him to "stop playing with that thing, its embarrassing me". The defendant then used the back of his hand to tap Complainant 1's penis twice before he cupped his hand around Complainant 1's penis and testicles. Not long afterwards Complainant 1 referred to the Irish coffee the night before to which the defendant replied "shhhh, don't tell anyone, it's our little secret".
12. Following further contact with the defendant on 22nd and 23rd March, Complainant 1 reported the incident to the police on 24th March.
13. The defendant was arrested on 4th May and subsequently interviewed. He said that he had no sexual desires towards males. He confirmed that he had made the majority of the reported comments to Complainant 1 on the building site but explained them all away as work banter or having a "craic" with the new boy. He denied touching or attempting to touch Complainant 1's penis but then stated that he may have touched Complainant 1's penis through his clothing with the back of his hand. However, if he did there had been no sexual intent. This was with reference to the alleged assault in the workplace (Count 2). In relation to the incident in the flat, the defendant admitted making some of the comments reported by Complainant 1 and confirmed that he had taken a tape measure out and spoken about the size of men's penises but explained that this was all a joke. He could not recall if he poked Complainant 1 with the tape measure.
14. Counts 3 and 4 concern Complainant 2 who was aged 22 when the alleged assaults occurred in June 2015. The prosecution case is that after an evening drinking with friends, the complainant was walking through the Royal Square when he met the defendant. He knew the defendant because the defendant was a customer at a bar where Complainant 2 worked as a barman. He had however never socialised with him.
15. They struck up a conversation and the men discussed the death of a mutual friend. The defendant invited Complainant 2 back to his place for a drink. Complainant 2 thinks the defendant mentioned coffee.
16. On arrival at the defendant's flat, Complainant 2 sat down on a two-seater sofa. The defendant sat down next to him. As the sofa was small, the defendant was in bodily contact with Complainant 2 who tried to shuffle away. The defendant started to tell Complainant 2 about his sexual experiences in the flat including telling them about a girl that Complainant 2 had been seeing a few months earlier.
17. The defendant told Complainant 2 that he had a "little black book" in which he recorded the size of other men's penises. He asked Complainant 2 to get out his penis and let the defendant see it. Complainant 2 refused.
18. About 30 minutes later, the defendant undid his belt, pulled down his jeans and boxer shorts exposing his penis and started to play with himself. Complainant 2 again said it was not his thing. The defendant then said he was going to put on some pornography to make Complainant 2 feel more comfortable. The defendant stood up and put on a heterosexual porn film. He then sat down next to Complainant 2 and started to masturbate. He mentioned how big the penis of the male in the porn film was. The defendant asked Complainant 2 more than once to get out his penis. In an attempt to shut him up, Complainant 2 pulled his jeans and boxers down and showed the defendant his penis.
19. The defendant grabbed hold of Complainant 2's penis with his right hand and said "let's have a better look". This gives rise to Count 3.
20. Complainant 2 remembers the defendant getting out his guitar and singing. The defendant suggested going to the bedroom. When Complainant 2 stood up he felt disoriented and the room began to spin. The men made their way to the bedroom. After the men got into bed, the defendant grabbed Complainant 2 from the side and put his hand on his hip. Complainant 2 pushed the defendant away and told him to stop but the defendant continued to grab his leg, hips and thighs.
21. Complainant 2 woke up with his back to the wall facing the defendant who was holding on to his legs. He felt his penis inside the defendant's mouth. He tried to punch down to stop the defendant. He appears to have passed out.
22. When he woke in the morning, he got out of bed and dressed. The defendant suggested going for breakfast. Complainant 2 states that he was dazed and terrified and did not know what to do, so he agreed to go for breakfast. As they were about to part company after that, the defendant said to Complainant 2 "Mum's the word".
23. Complainant 2 reported the matter to the police later the same day. The defendant was arrested. At interview he said, amongst other things, that at the flat, they had begun discussing penis sizes. The defendant said he had what he called a "black mamba". He had taken his penis out from his pants and showed it to Complainant 2. Complainant 2 responded by taking his penis out to prove it was big and the defendant remembered commenting that it was a big black mamba. The defendant admitted that he took hold of Complainant 2's penis for about 3 seconds and gave it a little shake but said that Complainant 2 did not object. He said that it was Complainant 2 who instigated going to bed and there was mutual rubbing and touching around the groin area over underpants. He said that Complainant 2 had fully consented to what was taking place. He denied that he had given Complainant 2 oral sex.
24. Rule 3 of the Indictments (Jersey) Rules 1972 provides:-
25. The meaning of the expression '...a series of offences of...a similar character' has been considered in a number of cases in England and Wales which have been applied in this jurisdiction (see for example AG v P [2013] 1 JLR 45). The position is helpfully set out in Archbold (2016 edition) at para 1 - 239 as follows:-
26. It is clear that, when considering whether there is a nexus, it is relevant to consider the cross-admissibility of evidence in relation to the different charges, i.e. whether there is similar fact evidence. Thus in H v AG [2013] (1) JLR 210, Calvert-Smith JA said at para 29:-
27. See also the observation of Clyde-Smith Commissioner in AG v P at para 10 where he said:-
28. I respectfully agree and accordingly propose first to consider the question of cross-admissibility, i.e. does the evidence of Complainant 1 support the evidence of Complainant 2 in respect of Counts 3 and 4 and vice-versa?
29. The test for similar fact evidence in this jurisdiction was conveniently summarised in U v AG [2012] (1) JLR 349, which in turn applied the leading English case of DPP v P [1991] 2 AC 447. In the case of U, Nutting JA said this at para 13:-
30. Advocate Bell submitted that there was insufficient similarity for there to be cross-admissibility in relation to the evidence of Complainant 1 and Complainant 2. He highlighted the following differences:-
(i) The acts alleged were different. Complainant 1 alleges touching of the penis over clothing whereas Complainant 2 alleges touching of the naked penis and oral sex.
(ii) The relationship between the defendant and the two complainants was different. Complainant 1 was a work colleague who the defendant got to know on a building site whereas Complainant 2 was a barman whom the defendant had got to know in a bar.
(iii) Complaint 1 is alleged to have been assaulted once at the defendant's flat and once at the workplace whereas Counts 3 and 4 in relation to Complainant 2 both relate to the flat. Furthermore there is a five year gap between the alleged offences.
(iv) Complainant 1 is clear that he was not a willing participant in the conduct complained of whereas Complainant 2 admits that he voluntarily got his penis out in the defendant's flat.
(v) Complainant 2 recounts the use of pornography to encourage him whereas there was no pornography in relation to Complainant 1.
(vi) Complainant 2 voluntarily stayed the night and indeed went out for breakfast with the defendant whereas nothing of this nature occurred in relation to Complainant 1.
31. In short, Advocate Bell submits that the only relevant similarities which the Court can point to are the fact that both complainants are male and that the defendant is alleged to have indecently assaulted both by touching or trying to touch their penises. This was insufficient to meet the test for admitting similar evidence.
32. As well as the leading cases of U, and DPP v P referred to earlier, I was also referred to X v AG [1998] JLR 221, AG v P [2013] (1) JLR 45, H v AG [2013] (1) JLR 210 and F v AG [2016] JCA 168. However, as Perry JA made clear in F at para 47, each case turns on its own facts and the issue is really one of degree.
33. In my judgment, despite the differences highlighted by Advocate Bell, there are very considerable similarities in the evidence of the two complainants such that, to use Nutting JA's wording in U, an attempt to explain the similarities away by coincidence would be in an affront to common sense or against all probabilities. The relevant similarities are as follows:-
(i) The complainants were both young men of similar age (20 and 22).
(ii) The defendant invited both men back to his flat after they had been drinking.
(iii) When he invited them back, the subject of coffee was mentioned.
(iv) The defendant plied both complainants with alcohol at his flat.
(v) The defendant spoke to both Complainants about women with whom they had been in relationships. That conversation indicated that the defendant knew that both men were heterosexual.
(vi) The defendant exposed his penis to both men.
(vii) He made clear to each complainant that he was obsessive about the size of men's penises and kept asking each complainant to show his penis to him. In the case of Complainant 1, there had been an initial comment about the size of Complainant 1's penis at work and at the flat this sort of comment continued. The defendant tried to see Complainant 1's penis whilst he was urinating. He then asked if he could see it to see how big it was and pulled out a tape measure saying that he wanted to measure Complainant 1's penis. As to Complainant 2, he referred to the little black book in which he recorded the size of other men's penises. When watching the pornographic movie with Complainant 2, the defendant mentioned the size of the penis of the male in the film and asked the Complainant to show him the size of his penis.
(viii) After touching each complainant's penis in his flat the defendant played his guitar and sang to each complainant.
(ix) The defendant told both complainants in similar terms that they should keep quiet about what had happened. He told Complainant 1 "shhh, don't tell anyone its our little secret" and he told Complainant 2 "Mum's the word".
34. There is no evidence that the complainants are known to each other or have had any opportunity to put their heads together prior to making their statements. Whilst of course there are differences in what occurred as listed by Advocate Bell, I consider that the similarities in the evidence of each - some of them quite unusual - are such that, to quote Perry JA in F at para 42:-
Whilst each case is different, I consider that the similarities in this case are greater than they were in F where the Court of Appeal held that there was cross-admissibility.
35. Having concluded that the evidence is cross-admissible, it follows that there is sufficient nexus between the counts and that they are therefore properly joined on the same indictment.
36. I should add that, even if I were held to be wrong about cross-admissibility, the features of similarity which I have articulated above are sufficient to provide a nexus such that they can properly be described as a series of offences of a similar character. There is therefore no misjoinder.
37. Having found that there is cross-admissibility of evidence, the normal consequence is that it is appropriate for all the counts to be tried together. I see no reason to take the unusual course of ordering severance where the evidence is cross-admissible and I therefore decline to sever Counts 3 and 4 from Counts 1 and 2.
38. However, in case I am held to be wrong about cross-admissibility, I shall consider whether it would be appropriate to order severance even if there is no cross-admissibility of evidence.
39. On this aspect, Advocate Bell referred me to the decision of Commissioner Clyde-Smith in AG v P and, in particular, to his approval of paragraph 18 of the comment of Lord Cross of Chelsea in DPP v Boardman [1975] AC 421 at 459 where Lord Cross referred to the jury having to perform mental gymnastics by putting out of their mind when considering one count that other complainants are making similar allegations against the defendant.
40. He also referred me to a commentary in Criminal Law Week 2006/35 which commented critically upon a decision of the Court of Appeal to uphold a decision of the trial judge not to order severance even where the evidence was not cross-admissible. The commentary described it as the "standard judicial fudge".
41. I consider that the approach has changed somewhat since the decision in Boardman in 1975. The leading authority is now R v Christou [1997] AC 117 where the House of Lords emphasised that, even where the defendant was charged with sexual offences where the evidence of one complainant was not so related to that of the other as to render it admissible on the charges covering that other complainant, a judge has a statutory discretion to order that all charges should be tried together. The House of Lords approved a passage from the judgment of Lord Lane CJ in R v Cannan (1990) 92 Cr App R 60 at 23 where he said:-
42. Lord Taylor in Christou went on to say at 129:-
43. In the same case Lord Hope emphasised the Scottish experience. Having stated at 131 that the practice of trying all outstanding charges against the accused on a single indictment had been established for a long time and was seen to be in the public interest as well as that of the accused in order that justice may be done expeditiously, he went on to say:-
He went on to say that even in cases of child sexual abuse, experience had shown that juries follow the judge's directions and are well able to consider the charges separately.
44. In this jurisdiction, the Court of Appeal has considered the same topic in H v AG where at para 28 Calvert-Smith JA said this:-
45. Applying these principles to the facts of this case, I would not order severance even in the absence of cross-admissibility. As Lord Taylor and Lord Hope made clear in Christou, decisions as to severance require fairness not only to the accused but also to the prosecution and those involved in it. I think it fair to the complainants that the trial should take place as soon as possible so that they can both give their evidence and put this matter behind them as soon as possible. The same applies to the defendant; if there is severance there will be two trials and the matter will hang over him for a considerable period. Most relevantly, assuming no cross-admissibility, the jury will be directed to consider Counts 3 and 4 quite separately from Counts 1 and 2. As indicated by both Lord Taylor and Lord Hope in Christou, I am confident that the jury would loyally follow such direction and consider the counts separately. In all the circumstances, I consider that it would be in the interests of justice for these matters to be tried together even if there were no cross-admissibility.
46. The prosecution have applied for leave for Complainant 2 to give his evidence from behind a screen. I have been provided with a statement which the complainant has made in which he states that having the defendant look at him as he gave evidence would reduce his ability or capacity to give his evidence. He says that he has not seen the defendant for over a year and the last time he saw him on the street he just froze. He felt that there was nothing he could do. He felt as if he was re-living what had happened and this affected him greatly. He has been receiving counselling as a result of what occurred and has been signed off work for a period of six months. He has also been prescribed medication to help him deal with the anxiety and stress which he attributes to the alleged assault. He feels he would not be able to give his evidence to the best of his ability or capacity if he is not given this assistance by way of special measure.
47. I was referred to the decision of the Court of Appeal in Myles v AG [2005] JLR N19, [2005] JCA 065 where at paragraph 19 the Court of Appeal held that, when faced with an application for a screen, a judge must first be satisfied that the quality of the witness's evidence may be adversely affected by fear or distress or for some other reason. If the judge is satisfied of this, then he needs to balance the adverse effect on the witness if there is no screening against the potential prejudice to the defendant if there is screening.
48. Advocate Bell submitted that there was insufficient evidence that the witness's evidence might be affected if there were no screen. There was no evidence from an expert or anyone similar; there was simply a statement from the witness in circumstances where it had clearly been suggested to him by the police that he could apply for such a measure. Conversely, submitted Advocate Bell, there would be prejudice even if an appropriate direction were given. It would suggest to the jury that there was some reason why the witness needed to be protected. Given the conduct of Complainant 2 on the night in question, it seemed unlikely that he would truly be distressed by the thought of having to give evidence in the presence of the defendant.
49. In my judgment, even since the decision in Myles, the approach to the use of screens has developed. There is a clear understanding that it is an important aspect of the criminal justice system that witnesses should be given assistance where appropriate so that they can give of their best in the witness box. It is now commonplace for screens to be used in sexual cases. I consider that the risk of prejudice to the defendant is minimal. Juries are told by the judge that this is common practice and should not be held against the defendant. I see no risk therefore of the jury concluding that there is something about this particular defendant which requires the witness to be protected from him, as Advocate Bell suggests.
50. In the light of the statement from Complainant 2, I am satisfied that his evidence may be affected by distress. Conversely I see no risk of prejudice to the defendant provided that an appropriate direction is given to the jury.
51. In the circumstances, I grant the application of the prosecution that Complainant 2 may give his evidence from behind a screen.