SH, R. v

LORD JUSTICE HOOPER: This appeal against conviction is dismissed and we will give brief reasons for that conclusion.

On 27 January 2009 at the Crown Court at Southampton, before HHJ Boggis QC and a jury, the appellant was convicted of sexual assault, attempted rape, and convicted by a majority of ten to two of two counts of causing or inciting a child to engage in sexual activity. The sexual assault was count 3. That count was added during the course of the trial to reflect a development in the evidence of the complainant. The attempted rape was count 4, and the victim in both count 3 and count 4 was the appellant's wife.

Insofar as the two offences of causing or inciting a child to engage in sexual activity, they were reflected in counts 5 and 6, and they concerned two incidents involving the appellant's daughter, aged at that time 15.

The appellant appeals against conviction by leave of the single judge on a single and narrow point. It is submitted that the trial judge was wrong to allow the indictment to contain the counts involving sexual abuse of the appellant's wife with the two counts involving sexual abuse of the defendant's daughter because (and only because) they were not part of a series of offences of the same or similar nature. There were two other counts, counts 1 and 2. Count 1 charged rape and count 2 charged indecent assault.

We can take the facts briefly. The appellant's wife alleged that, during the course of their marriage and indeed before their marriage, her husband (the appellant) had committed sexual offences against her, in particular whilst she was asleep. There appears to have been, at least in the early part of the marriage, an active sexual life, but nonetheless, on the wife's account, there was a large number of occasions where he behaved towards her in an unlawful sexual manner. At the start of the trial, the last count relating to the wife was one of attempted anal rape, which took place in about 1998. In the course of her evidence she made it clear that the unlawful and inappropriate behaviour had continued to about 2006/2007, and that evidence led to the addition of count 3. We, however, must look at the situation as it was at the start of the trial.

The allegations involving the daughter were of a comparatively minor kind but nonetheless unpleasant. The appellant, on the findings of the jury, had requested that she show him her breasts in exchange for him allowing her to have alcohol. It is agreed that the only issue that we have to resolve is whether the judge was right to reach the conclusion that the offences involving the wife and the offences involving the daughter were part of a series of offences of the same or similar character. When he came to sum up to the jury, the judge did say that the jury were entitled, if they were sure of the evidence of one of the complainants, to use that when considering the case in relation to the other complainant. That direction, which was probably unduly favourable to the appellant, was one to which no objection is taken. However, the prosecution do not rely upon cross-admissibility in order to support their proposition that these offences are part of a series of offences of the same or similar character. It is submitted on behalf of the appellant that they were not. These were very different offences. There was a significant gap between the two groups of offences. The allegations in relation to the wife were set against the background of a marriage that lasted 17 years, during which time there was consensual intercourse. On the other hand, the counts involving the daughter were isolated incidents and, as we have said, occurred substantially later in point of time, at least as the evidence appeared to be at the start of the trial. It is also pointed out that the daughter was 15 at the time, whereas the wife was at all times of course an adult.

It is submitted on behalf of the respondent that the judge was right in the conclusions that he reached, that these offences were part of a series of offences of the same or similar character.

Mr Asteris points to the following matters as evidence of a sufficient degree of similarity between the two groups of offences. First of all, both of the complainants are of course related to the appellant -- one is his wife, the other his daughter. All offences are sexual in nature, and centre around the same family environment. The evidence of the appellant's wife was that he had an excessive and unusually demanding need for immediate sexual gratification, which, says the respondent, is reflected also in the extraordinary request made to his daughter to show her breasts if she wanted some alcohol.

The prosecution also point out that, in the case of the wife, she gave evidence of him making a bargain in exchange for some form of sexual gratification, and draws a comparison between the bargain which the appellant sought to strike with the daughter.

In our view, the respondent's arguments succeed. The judge was entitled to find that the test which we have set out was met. In those circumstances, this appeal is dismissed. Thank you both very much.

MR TAYLOR: Thank you, and thank you very much for hearing us earlier than otherwise.