Venn, R v

Similar-fact evidence is inadmissible if it establishes only a defendant’s propensity. It may be admitted where identifiable common features make independently made allegations probative of a particular issue, such as whether complainants are lying, and its probative force makes admission fair despite prejudice.

There is no universal requirement of striking similarity. The required connection is contextual and the jury must assess both similarities and material differences. Evidence of a complainant’s long-term demeanour should be excluded where there is no concrete basis for linking it to alleged historic abuse. A careful limiting direction may nevertheless mean that an erroneous admission does not render a conviction unsafe.

The appellant was convicted at St Albans Crown Court of four counts of indecent assault on two complainants who had, at different times, been children of families known to him. He denied the allegations, apart from contending that any contact alleged in one count had been inadvertent.

Before trial, the judge refused to sever the counts. The jury heard each complainant’s allegations as similar-fact evidence on the issue whether they had independently lied. The judge also admitted evidence of one complainant’s distress and changed demeanour. The appellant appealed against conviction, challenging severance, similar-fact admissibility and the demeanour evidence.

1. Appeal dismissed. The allegations were capable of being used as similar-fact evidence on the issue whether the two complainants had independently made false allegations. Similar-fact evidence cannot be admitted merely to show propensity. Under DPP v P [1991] 2 AC 447, its admissibility depends upon sufficient probative force to make admission fair despite prejudice; striking similarity is not an all-purpose requirement.

2. Where the issue is whether independent complainants are lying, the relevant similarity lies in the allegations they independently make, rather than only in the acts alleged. The common features here provided a sufficient connection: both complainants alleged sexual interference by a close family friend in their homes during childhood, including interference with the breasts. The judge properly left the jury to weigh those features against the differences in age, conduct and timing.

3. The summing-up gave a clear direction that guilt on one count could not make guilt on another more likely by propensity. It also confined the legitimate use of similarity to the question whether the complainants could independently have lied. The similar-fact ruling was therefore not disturbed. Since the appellant accepted that severance stood or fell with that issue, the severance ground also failed. The manner in which the second complaint emerged was irrelevant to severance.

4. Evidence of distress which is merely part of making a complaint cannot support the truth of that complaint. The court held that, because the connection between the complainant’s long-term demeanour and the alleged abuse was uncertain, the judge should have excluded the demeanour evidence rather than leave its significance to the jury, consistently with R v Keast [1998] Crim LR 748. However, the careful direction to attach little importance to the evidence meant that its admission did not render the convictions unsafe.

• Court of Appeal (Criminal Division) — dismissed the appellant’s appeal against conviction.
• Crown Court at St Albans — convicted the appellant on 12 July 2002 of four counts of indecent assault and, on 13 September 2002, imposed concurrent sentences of 15 months’ imprisonment.