Submitted by Professor Solomon E Salako (CA 129)
SIMILAR FACT EVIDENCE IN RETROSPECTIVE SEXUAL ABUSE CASES
What is similar fact evidence?
Similar fact evidence is evidence of past crimes or discreditable conducts adduced to prove that the accused is guilty of the offence for which he is now charged.
Similar fact evidence was first introduced in 1810 in R v Cole1 as an exclusionary rule of evidence. In 1894 in Makin v Attorney-General for New South Wales2 similar fact evidence became not only an exclusionary rule but also an inclusionary rule which admitted two categories of relevant evidence to prove plan or design and rebut a defence which would otherwise have been open to the accused. In time, the categories were extended3 and in 1974 in Boardman4 two tests of admissibility were enunciated: (i) that the evidence is of positive probative value; or (ii) that it is uniquely or strikingly similar.
In 1991 in R v P5 the aforementioned tests were replaced by a single test: that the probative force of the similar fact evidence is sufficiently great to make it just notwithstanding its prejudicial value and that such probative force could be derived from striking similarity or the former "categories", now regarded as examples.
Problems with similar fact evidence
Although some cases are proved beyond reasonable doubt, convictions obtained in respect of evidence trawled by the police in 34 of the 44 police forces in England, Wales and Northern Ireland under the code-name "Operation Care" and its variants are (in most cases) unsafe for the following reasons:
(i) Inadmissible Similar Fact Evidence
The summation of the print media6 shows that similar facts adduced in evidence in cases of retrospective sexual allegations are often contradictory, inadmissible and used as corroborative evidence: "corroboration by volume"7 as colloquially but inappropriately described.
The paucity of available transcripts of Crown Court cases makes it difficult to prove conclusively that the police methods of trawling produce inadmissible similar fact evidence as was done in the Court of Appeal of New Zealand in R v O8 (see the Appendix).
(ii) Collusion or Contamination and the Danger of Manufactured Evidence
Arising from (i) above is the problem of collusion or contamination as in Ananthanarayanan9. There is also the danger of manufactured evidence as in Islam10.
(iii) Similar Fact Evidence as Corroboration
The conventional wisdom is that similar fact evidence is independent of corroboration. And yet, the reality in some cases is that they are inextricably intertwined.
(iv) False-Memory Syndrome and the Statute of Limitation
Retrospective allegation of sexual abuse based on memory recovered 20 or (sometimes) 30 years or more after the alleged abuse bristles with evidential problems. First, dangerously suggestive recovery techniques (which are rejected by the preponderance of psychological research findings available11) can lead to arguments for the exclusion of the evidence under section 78(1) or section 82(3) of the Police and Criminal Evidence Act 1984 (PACE)12. Even in the USA where there is a statute of limitation, it was held in State of New Hampshire v Joel Hungerford13 that recovered memory thesis did not satisfy the standard of evidential reliability to form a delayed recovery presentation. In English law, it is doubtful whether cases of retrospective allegations of sexual abuse are proved beyond reasonable doubt and, what is more, the prosecution case is often based on a preconceived notion of guilt and therefore violates Article 6(2) of the European Convention on Human Rightsthe presumption of innocence14.
(v) Previous Acquittals as Similar Fact Evidence
It was decided by the House of Lords in R v Z15 that the principle of double jeopardy did not render inadmissible evidence of previous acquittals as similar fact evidence but that the question of fairness must be addressed and judges must exercise their discretion under section 78 of PACE to exclude the evidence if admission would be adverse to the fairness of the proceedings. Regrettably, the Law Lords in R v Z did not consider an earlier decision of the House in 1935 in Maxwell v DPP16 where it was held that the accused should not be cross-examined about his previous acquittals pursuant to section 1(f)(i) of the Criminal Evidence Act 189817 and where it was necessary to elucidate the evidence of previous acquittal as being relevant to the fact in issue, it should nevertheless be excluded.
Whilst this principle in R v Z applies in New Zealand, it does not apply in Australia18 and Canada19 where the issue estoppel (the doctrine of jeopardy) is adhered to.
That a Royal Commission be set up to consider:
the enactment of a statutory provision making it mandatory to video-tape the interviews of adults making retrospective allegations of sexual abuse;
a review of the laws relating to similar fact evidence, corroboration and the doctrine of double jeopardy in their entire ramifications; and
the feasibility or desirability of a statute of limitation for criminal proceedings and the review of evidential problems associated with recovered-memory or false memory.
In order to achieve the objectives adumbrated above it is mandatory to conduct a socio-legal analysis of the transcripts of 50 cases decided on retrospective allegations of sexual abuse trawled by the 34 police forces involved in "Operation Care" and its variants. This analysis will confirm or refute the findings in R v O (see the Appendix).
Solomon E Salako, LL.M. (London), M. Phil (London), ACIS, is both a Barrister and Senior Lecturer in Law at Liverpool John Moores University. He has published several articles (among them "The Hearsay Rule and the Civil Evidence Act 1995: Where are we now?" (2000) 19 Civil Justice Quarterly 371-385 and "Hearsay in English Criminal Trials: A Violation of the Convention?"  Human Rights 232-238). He is also the author of Life Issues and the Law: Essays in Medical Law and Ethics, Pentaxion, 2000 and The Law of Evidence, Pentaxion, 2000 and has been teaching the law of evidence for 19 years.
Notes on Submission
1. (1810) Judges' Notebooks on Crown Cases, Vol. 3 discussed in W M Best, The Principles of the Law of Evidence (SL Phipson ed., Sweet & Maxwell: London, (1922), p237.
2.  AC57.
3. See J H Wigmore, Evidence in Trials at Common Law (J H Chadbourn rev, Little, Brown: Boston, 1979), Vol 2, p257.
4.  AC 421.
5.  3 All ER 337.
6. See, for example, J Bennetto, "Child sex abuse inquiries will top 100" (2001) The Independent, 8 January.
7. See S O'Neil, "Police face major overhaul of child abuse inquiries" (2000) The Daily Telegraph, 19 December.
8.  1 NZLR 347. For similar fact evidence to be admissible, there must be something more than repetition: each complainant's evidence is admissible as evidence of that which is asserted but not necessarily as similar fact evidence in relation to evidence of other complainants because of collusion or contamination and the danger of manufactured evidence.
9.  2 All ER 847. In that case, D, a consultant psychiatrist, was convicted of five offences of indecent assault on four women. There was evidence to suggest that the complaints were not spontaneous but were prompted by a common source in that the local social services department had sought potential complainants who might have allegations of indecency against D. D was convicted and appealed on the ground that the evidence of the women was incapable of offering mutual corroboration and that there was risk of contamination. Allowing the appeal, the Court of Appeal held that if there existed a real risk of contamination there could be no mutual corroboration.
10.  Crim. LR 575. In that case, Dr Islam was convicted on three counts of indecent assault on female patients. The only evidence presented by the prosecution was what the patients told the police, relatives and friends. On appeal, Dr. Islam's conviction was quashed because statements of the police, relatives and friends could not corroborate the complainants' evidence because the statements did not come from an independent source.
11. British Psychological Society, Recovered Memories. The Report of the Working Party of The British Psychological Society (The British Psychological Society: Leicester, 1995).
12. See R v H, unreported. December 1998 (Bristol Crown Court) discussed in I Glen, "True lies and false memories", Archbold News, Issue 3, 19 April 1999; and G v DPP  2 All ER 755. Contrast R v Clarke  2 Cr App R.45.
13. See http://www.state.nh.us/court/supreme.htm.
14. See Barbera, Messegue and Jabardo v Spain (1989) 11 EHRR 360.
15.  3 All ER 385.
16.  AC309.
17. See Johnson  Crim LR 53 and Gee  3 NZLR 729 for excluding similar fact evidence adduced to prove the accused's identity.
18. This has been renumbered s.1(3)(i) of the Criminal Evidence Act 1898 by Sch 4, paragraph 1(7) of the Youth Justice and Criminal Evidence Act 1999. See also Cokar  2 QB207.
19.See Kemp v R (1951) 83 CLR 341 which followed Sambasivam v Public Prosecutor, Federation of Malaya  AC 458.
20. See Grdic v R  1 SCR 810 and R v Arp  3 SCR 339 (Supreme Court of Canada).
R v O  1 NZLR 347 (Court of Appeal, Wellington)
The appellant appealed against conviction on six charges of sodomy and 10 charges of indecent assault, and the sentence of eight years imposed on him subsequent to conviction.
The facts of the case and the decision of the Court of Appeal as stated by Blanchard J at pp354-5 are as follows:
"Clearly enough, one might have hoped, the story told by B, then a little girl, of being indecently assaulted and later raped by the appellant in about 1965 does not have any close relationship either of circumstance or time with any other event narrated by the complainant. The shed containing the musical equipment was on a farm, not at the appellant's house where he had a studio. . .
The events concerning S and J at least involved victims of the same sex as the complainant but, as mentioned, were not proximate in time to the charged offending and, at most, amounted to attempts at some forms of indecency. That involving S does not seem to have been at a place where offending on the complainant occurred. The attention to J was at J's own home, again a venue with no connection to any other part of the case. The evidence of S and J cannot be properly regarded as sufficiently related so as to qualify as "similar fact" evidence on the charges faced by the appellant and should not have been introduced in evidence. . .
Although D's evidence was particularly prejudicial because of the appellant's plea of guilty, which the prosecutor formally proved, it was powerfully probative going beyond showing merely a propensity to offend against male children. . .
In summary, however, three witnesses gave inadmissible and plainly prejudicial evidence at the applicant's trial. Notwithstanding a very tenable case against him based solely on the admissible evidence, we find ourselves unable to be sure that the inadmissible evidence was not given some weight by the jury. This is not therefore a case in which the proviso. . .can be safely applied.
The appeal must accordingly be, and is, allowed, the convictions quashed and a new trial ordered (emphasis added).