Nicholson v R.

In a multi-count criminal trial, cross-admissibility identifies whether evidence on one count is relevant to another. Where that evidence is bad character evidence, it must also pass a gateway under the Criminal Justice Act 2003.

Independent similar complaints may assist the jury when assessing whether an account is accurate or is a rare false memory. Each count must nevertheless be decided separately. The jury must not infer from an unlikely cluster of complaints that every complaint is necessarily true. Statistical proof is not invariably required before coincidence evidence can be considered, but the judge must give directions suited to its probative force and risks.

The appellant, a recovery-room nurse, was retried in the Crown Court at Newcastle-upon-Tyne on five allegations of sexual offending against female patients. The jury acquitted him on counts 1 and 2 but convicted him on counts 3 and 5 of sexual assault and on count 4 of assault by penetration.

On appeal, he contended that count 3 should have been withdrawn because there was no case to answer. He also challenged directions permitting the jury to use evidence from other complainants, and evidence of an additional patient, when considering whether the complainants’ recollections during recovery from anaesthesia were true or false memories.

1. Appeal dismissed. The convictions were safe. There was sufficient evidence on count 3 for the jury to assess the reliability of the complainant’s account. The appellant was on duty throughout her recovery, and the jury could infer that he had opportunities to be alone with her when other staff were absent.

2. Cross-admissibility is a label for relevance between counts. The trial judge must identify the issue and purpose for which evidence on one count may assist on another. If the evidence is bad character evidence, it must satisfy an admissibility gateway under section 101 of the Criminal Justice Act 2003.

3. The similar, independent complaints were capable of assisting the jury on whether an individual complainant had accurately recalled sexual interference or had suffered a false memory. Expert evidence established that false memories of this kind were rare. The jury could therefore take account of the unlikelihood that several unconnected patients at the same hospital had independently suffered similar false memories.

4. The court explained Norris [2009] EWCA Crim 2697. Coincidence evidence cannot justify a leap from the rarity of a cluster to a conclusion that every allegation must be true. Each count requires separate assessment. The directions correctly required separate verdicts, permitted the jury to disregard any account it considered unreliable, and warned against treating the evidence globally.

5. If the jury was sure of one offence, it could consider whether that established a tendency to commit similar offences. That use required a conventional warning against giving propensity undue weight. Where coincidence and propensity directions are both given, the judge should guard against an overvaluation of accumulated inferences.

6. There is no general rule requiring statistical quantification before coincidence evidence is admissible. Statistical evidence may be necessary where highly potent evidence, such as DNA evidence, requires fair evaluation. Otherwise, admissibility and the need for warnings depend on the evidence, its limitations, and the issues for the jury.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction and held that the jury’s verdicts were safe.
• Crown Court at Newcastle-upon-Tyne At a retrial before HHJ Milford QC, the appellant was acquitted on counts 1 and 2 and convicted on counts 3, 4 and 5. He received eight years’ imprisonment on count 4 and concurrent five-year terms on counts 3 and 5.