About this case:

• Citation:
  [2018] NICA 38
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Lord Justice Deeny

The victim, who was 11 when the abuse began, died before the case came to trial – however the prosecution relied on a video interview played to the jury and four sources of bad character evidence.

Finding that the trial judge did not err in admitting the bad character evidence, Lord Justice Donnell Deeny said he had no doubt about the safety of the verdict

Background

In 2015, Colm Joseph Shaw was convicted by a jury at Downpatrick Crown Court on four counts of indecent assault contrary to Article 21(1) of the Criminal Justice (NI) Order 2003 and gross indecency with a child contrary to Section 22 of the Children and Young Persons Act (NI) 1968. The victim, “FH”, was a schoolboy in Bessbrook between 2003 and 2005 who knew Mr Shaw as the driver of the school bus, and who sat at the front to avoid bullying.

The prosecution case was that, when the victim was between the ages of 11 and 13, Mr Shaw had rubbed FH’s leg when he was driving on at least 10 occasions, that Mr Shaw had stripped off and masturbated in front of FH, that Mr Shaw had grabbed FH’s penis and started to masturbate him, and that Mr Shaw had touched FH’s genital area over his clothing.

Evidence was given at trial that in 2005, FH tried to commit suicide and that the family moved away from the area soon after.

When FH was 20, he reported the abuse to his father and subsequently went to the police. The police interviewed Mr Shaw and a file was prepared for the prosecution.

FH died in a road traffic accident before the matter came to trial.

Downpatrick Crown Court

At Mr Shaw’s trial, the prosecution relied on an Achieving Better Evidence (ABE) video of an interview with FH which was played to the jury. This was supported by bad character evidence from four different sources, and by evidence given by FH’s parents.

Three sources of bad character evidence admitted under Article 6(1)(d) of the Criminal Justice (Evidence) NI Order 2004 were:

1. Mr Shaw’s previous conviction for making and possessing indecent photographs of children, the majority of which were boys aged between 10 and 14;
2. A witness who was with FH on a trip to Lisburn swimming pool with Mr Shaw, who gave evidence that Mr Shaw bent over his shoulder to look at his penis while he was changing;
3. A witness who gave evidence that Mr Shaw had taken her son and a number of other children aged between 10 and 13 years on a cycle ride when he was out on bail after being charged in relation to the child pornography conviction – a condition of his bail was that he was not to have unsupervised contact with children under 18.

The fourth source of supportive evidence was from another victim of Mr Shaw, “C”. who complained to police in 1992 and 1993 of occasions when Mr Shaw had indecently assaulted him in 1991 and 1992 when C was aged 10 and 11. C’s evidence was that Mr Shaw had been the leader of a youth club and that Mr Shaw had masturbated him when sleeping over at the youth club, and during a weekend in Warrenpoint with the club. Rather than adding the count to the existing charges relating to FH, the prosecution decided to introduce C’s allegations as evidence of bad character.

Lord Justice Deeny explained that in the trial judge’s charge to the jury, there was a tendency to speak of C’s allegations “as if they were also part of the Crown case being tried by the jury”, but that the trial judge had expressly said to the jury that they would have to decide whether the allegations were true and that if they were not satisfied beyond a reasonable doubt they had to ignore the evidence.

Grounds of Appeal

In the Court of Appeal, Mr Shaw complained that:

1. The trial judge erred in admitting evidence of non-conviction bad character (the allegation of C) for the purpose of establishing a propensity on the part of the applicant to sexually abuse young children.
2. The trial judge erred in admitting evidence of bad character, namely that Mr Shaw had breached his bail terms. Though it may have been evidence of bad character in that it amounted to a breach of bail it was not evidence that it could ever have been considered sufficient to prove a sexual interest in young persons. 
3. If the allegation of C was properly admitted to lead evidence of complaint by C, an application was required to be made pursuant to Article 24 of the Criminal Justice (Evidence) NI Order 2004. This was not done and thus the evidence of his complaint was wrongly admitted to trial. 
4. The trial judge misdirected the jury in law by directing them that in proving FH’s complaints and C’s allegations to the criminal standard that the evidence of each was capable of being treated by the jury as capable of lending support to the other.

On the admission of non-conviction bad character evidence, the court considered the decision of the Supreme Court in R v Mitchell [2016] 3 WLR 48. Lord Justice Deeny said that, unlike in Mitchell, this case was not confined to a sole incident which needed to be proved beyond reasonable doubt.

Finding that the trial judge had not made any error or caused any injustice, Mr Justice Deeny said that it could have been argued that “as the evidence of C was not the sole bad character evidence in the case it was, in theory on foot of R v Mitchell, not necessary to direct the jury” in the way he did.

Lord Justice Deeny was also satisfied that the judge was right to admit evidence relating to his breaching bail, as to still consort unsupervised with young boys who were not his relatives was clearly evidence of his sexual interest in such children and of his propensity to commit crimes of the sort alleged by FH.

Satisfied that an application pursuant to Article 24 of the 2004 Order was not necessary, Lord Justice Deeny noted that this point was not raised by the experienced and competent counsel who appeared for Mr Shaw at his trial. Lord Justice Deeny said that the prosecution submitted that the all the necessary elements of article 24 were in fact present in the admission of C’s evidence, to the effect that C had complained about his abuse by Shaw to his brother and therefore that the evidence of the brother of that complaint made “as soon as could reasonably be expected after the alleged conduct” was admissible without any application. In those circumstances, Lord Justice Deeny said that the Court “need not decide whether it was actually consented to”.

Rejecting all grounds of appeal, Lord Justice Deeny said that, despite the death of FH and the inability to cross-examine, it was a strong prosecution case with not one but four pieces of bad character evidence – therefore the Court had no doubt about the safety of the verdict.

• by Seosamh Gráinséir for Irish Legal News