R v Sheldon Sieudath

In a jury trial involving multiple complainants, collusion or contamination requires some credible factual basis beyond the fact that witnesses know or may have met. Serious allegations of collusion must be fairly put to the relevant witnesses. A cross-admissibility direction must distinguish coincidence from propensity. Where propensity is relied on, the jury should be sure of the relevant evidence before using it on another count. Trial judges may manage proceedings, clarify evidence and put jury questions, but must not cross-examine witnesses, especially during evidence-in-chief, appear hostile, denigrate the defence or reveal their disbelief. Whether interventions make a conviction unsafe depends on the overall fairness of the trial and the nature, persistence and potential effect of the interventions.

The applicant was convicted in the Crown Court at Kingston-upon-Thames of two sexual assaults and two sexual assaults of a child under 13. He was sentenced to four years’ imprisonment. A single judge refused leave to appeal against conviction, and the applicant renewed his application.

The proposed appeal alleged excessive judicial intervention, adverse judicial comments which removed collusion from the jury’s consideration, and an inadequate cross-admissibility direction. The central issues were whether collusion or contamination was properly raised on the evidence, whether the jury directions were legally adequate, and whether the judge’s interventions made the trial arguably unfair.

The renewed application for permission to appeal was successful only on ground 1. Grounds 2 and 3 were unarguable. The audio recording of the applicant’s and his wife’s evidence was to be made available to the Full Court.

1. Collusion and contamination. Active collusion involves complainants making up false allegations together. Contamination may arise where one complainant has learned of another’s allegation and may have been influenced, consciously or unconsciously. Either issue requires a factual basis, and the allegation must be fairly put to the relevant witnesses [13]. The evidence here showed, at most, uncertainty about whether the complainants had met. There was no cogent evidence of contact, concoction or influence, and the allegation had not been put to them. Collusion was therefore not a live issue requiring a jury direction [17]–[24].
2. Cross-admissibility. R v Freeman and Crawford [2008] EWCA Crim 1863; [2009] 1 WLR 2723 identifies coincidence and propensity as distinct bases of cross-admissibility. The direction given was a propensity direction. It properly required the jury to be sure of one complainant’s evidence before using it in relation to another count. Because there was no cogent evidence of collusion or contamination, the judge was not required to give a coincidence direction or repeat the defence evidence in that part of the summing-up [25]–[31]. The judge’s reference to striking similarities was inadvisable, but was a factual comment and could not have affected the jury’s approach.
3. Judicial interventions. The question whether interventions justify appellate complaint is one of degree, as explained in R v Hamilton (113) Sol Jl. 546. Later authority, including Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879, emphasises the wider requirement of a fair trial. A judge may clarify evidence, manage the trial and put questions originating from the jury. The judge must not cross-examine witnesses, particularly during evidence-in-chief, or appear hostile to or dismissive of the defence [33]–[38].
4. The bulk of the interventions were permissible. However, those during the applicant’s and his wife’s evidence were more extensive than was usual or advisable. Some occurred during evidence-in-chief; some of the applicant’s questioning was akin to cross-examination and arguably entered privileged territory; and some questioning of his wife might have appeared hostile. Those matters gave rise to an arguable ground of appeal. The Full Court would determine whether the interventions affected the safety of the convictions [41]–[52].

• Court of Appeal (Criminal Division): The renewed application for permission to appeal succeeded only in relation to specified interventions during the evidence of the applicant and his wife: [2024] EWCA Crim 489.
• Single judge: Leave to appeal against conviction was refused.
• Crown Court at Kingston-upon-Thames: The applicant was convicted on four counts and sentenced to four years’ imprisonment.