GRIFFITHS V WILLIAMS UNREPORTED COURT OF APPEAL 21ST NOVEMBER 1995
FACTS:-
The Claimant was 32 years of age and was a tenant of the Defendant. She had previously worked at a hotel where the Defendant was a director. On the 27th February 1991, she and the Defendant had sexual intercourse in her bedroom. The Claimant alleged that she had been raped. The Defendant when interviewed by the police, initially denied that intercourse had taken place but later admitted to having intercourse with the Claimant. However he claimed that the intercourse was consensual. Following the report to the police, the Defendant harassed the Claimant as a result of which she took out an injunction against him. She suffered depression and required anti-depressants for six months. She also wanted to kill herself, suffered shock, had nightmares and did not like men coming near her. Four years after the rape, she was still having counselling.
At the criminal trial, two defence witnesses said that they had seen the Claimant at a hotel staff party, where the Claimant had pestered the Defendant. This was denied by the Claimant. One alleged that the Claimant “picked up blokes for cash.”
The Claimant sued the Defendant in the county court and the jury accepted the Claimant’s evidence. She was awarded £50,000 in damages.
The Defendant had applied to call evidence from a man called Charles Choak at the beginning of the trial, but this was refused by the trial judge. The trial judge also permitted evidence to be given by the Defendant’s wife who was called into trial under a subpoena. She said that her husband forced her to have sexual intercourse with him on a number of occasions and that they had separated in December 1991. The Defendant had also given an interview to the police in which he had said “there is no such thing as rape.” There was argument about whether this evidence was admissible. The trial judge said that the evidence had a close and striking similarity to the facts at issue, and it was substantially relevant to the issue that the jury had to address.
A landmark case on the admissibility of evidence, DPP v P [1991] 2 AC 447 was not cited to the judge, although he appeared to have known of the case. The effect of that case was to relax the rule in relation to admissibility of similar fact evidence.
The Defendant appealed on the basis that the evidence from Mrs Williams should not have been permitted. He also appealed on the basis that the judge should not have excluded the evidence of Mr Choak and that he had misdirected the jury. Finally the Defendant appealed against the level of damages.
HELD:-
The evidence of Mrs Williams
Lord Justice Rose said that although there were one or two similarities between the respective accounts, there were certainly not sufficiently striking similarities between the evidence of the Claimant and of Mrs Williams such as to justify the evidence of Mrs Williams being admitted before the jury on the basis of the law before DPP v P [1991]. However the judge was correct to refer to and rely on the answer given by the Defendant in the course of the interview with the police to the effect that “there is no such thing as rape.” Mrs Williams’ evidence was capable of supporting the view that, as this answer suggested, the Defendant’s attitude to sexual intercourse was that the woman’s consent was not a pre-requisite and that therefore her evidence went beyond mere propensity. It was evidence that was capable of being sufficiently probative despite its prejudicial quality within the principle enunciated in DPP v P. Therefore the judge was correct to admit the evidence of Mrs Williams.
Rose LJ then considered whether, if he was wrong in reaching that conclusion, and the evidence of Mrs Williams was wrongly admitted, there should be a re-trial. He referred to Order 59 Rule 11(2) which said that the Court of Appeal was not bound to order a new trial unless some substantial wrong or miscarriage had been occasioned.
The evidence of Mrs Williams was the fifth piece of evidence in the case, and there was already a substantial body of evidence corroborating the Claimant’s account. In addition, some of the evidence called by the Defendant was demonstrably false. The trial judge had also urged caution on the jury when they came to consider Mrs Williams’ evidence.
Rose LJ would not order a re-trial in these circumstances. There had been no substantial wrong or miscarriage.
The evidence of Mr Choak
Mr Choak had apparently, following the incident in question seen in the street a woman whom he assumed was the Claimant, invite the Defendant to go into premises where she lived. The Claimant had actually taken out an application for an injunction to restrain the Defendant from harassing her following the rape. Mr Choak’s evidence contradicted the allegation that the Defendant had harassed the Claimant following the events of February 1991. However no signed statement was served on the Claimant’s advisers until March 1995, i.e. about four weeks before trial. Furthermore Mr Choak had made no statement in relation to the Claimant’s application for an injunction.
Rose LJ said that there was no indication that the trial judge had approached the matter in anything other than a proper way or that he took into account or failed to take into account circumstances which he should not have taken into account, when exercising his discretion.
The Standard of Proof
Counsel for the Defendant had submitted that the judge in the present case had watered down the standard of proof actually required. Rose LJ read over the judgment of the trial judge on this issue, and said that he had made clear to the jury, first that the standard was not the same as the criminal standard; secondly that they had to decide the case on the balance of probabilities, and, thirdly, that because of the seriousness of the allegation, they had to be much more careful before they were satisfied that the allegation was proved. That was not a misdirection.
Damages
These had been assessed by the jury. Reference had been made to the case of W v Meah [1986] 1 All ER 935 which was a decision of Mr Justice Woolf. Two women, one of whom had been raped and the other who had been very seriously sexually assaulted were awarded £10,250 and £6,750, the equivalent in today’s monetary terms of about £15,000 and £10,000. The incidents in questions were much more serious than the attack on the Claimant in the present case. Attention was also drawn to a number of awards for rape by the Criminal Injuries Compensation Board in sums varying from £6,500 and £20,000.
Rose LJ said that the authorities showed that it was not for the Court of Appeal to interfere with a jury’s award merely because it was higher than a judge would have awarded. The circumstances and consequences of rape were in a quite different category from personal injury cases in general. This case was different from that in the CICB cases and W v Meah. In W v Meah the question of rape was not in issue and the victim did not have to endure the subsequent events, including giving evidence in the circumstances referred to, which marked the present case. Attitudes towards rape had changed in the decade since W v Meah was decided, the penalties passed by the criminal courts had increased and rape within marriage had become recognised as a criminal offence.
Rose LJ considered the authorities on jury awards. He said that it was possible that, had he been the judge, he would not have awarded the Claimant the figure which the jury awarded to her. However taking into account, not only the circumstances of the rape and its consequences to this particular Claimant, all the other features of the case including the harassment of the Defendant and the way in which the trial was conducted, it was quite impossible to say that £50,000 was out of all proportion to the circumstances of the case.
Therefore Rose LJ would dismiss the appeal.
Lord Justice Millett said that he had reached a different conclusion on the admissibility of Mrs Williams’ evidence. The Claimant’s counsel had sought to justify its admission on two different bases: first, as similar fact evidence and, secondly, as evidence of character.
Millett LJ referred to Phipson on Evidence which said that there were two exceptions to the admission of such evidence, the first of which is that such evidence is not admissible if the similar acts committed by the Defendant do no more than show a general disposition, habit or propensity to commit the acts in question and a consequent probability of his having committed the act or possessed the state of mind alleged. In DPP v P the House of Lords relaxed the degree of similarity, which might be required before evidence of similar facts could be admitted. However it did not dispense with the requirement that the evidence must be logically probative of an issue in dispute in the case, nor did it dispense with the general principle that mere evidence of propensity or disposition to commit acts of the kind alleged was not relevant to such an issue.
Mrs Williams’ evidence that her husband had forced himself on her was relevant in relation to the issue of the kind of person he was, but it had no relevance in respect of the prior question whether Miss Griffiths did or did not consent to intercourse with him. It would be a different matter if there was evidence from other tenants of the Defendant that he forced himself on them. Millett LJ referred to the dicta of Lord Mackay LC in R v H [1995] 2 All ER 865 and said that in his judgment Mrs Williams’ evidence could not possibly corroborate Miss Griffiths nor could her evidence be admitted as similar fact.
The second basis for admission of this evidence was character, which was in issue. Mr Williams had attacked Miss Griffiths’ character and he put his own good character up before the court. However character evidence would not have made Mrs Williams’ evidence admissible as evidence-in-chief. It would only have exposed Mr Williams to cross-examination as to credit and even then, as Phipson on Evidence stated, evidence of rebuttal would not have been permitted. Evidence of bad character led in rebuttal of evidence of good character had to be of the same kind and subject to the same limits as that to which it was put in answer. It should not be related to specific instances but should relate to the general reputation of the accused. Therefore Mrs Williams evidence did not go to credit but to propensity and was therefore inadmissible.
Millett LJ did not overlook the fact that when he was interviewed by the police, Mr Williams had said “there is no such thing as rape.” That statement could be put to the jury as an admission of the state of mind of the Defendant.
In any event, Millett LJ was of the view that there had been no substantial wrong or miscarriage of justice, for the reasons given by Rose LJ. There was abundant evidence before the jury.
In relation to the award of damages, Millett LJ was seriously concerned about the size of the award of damages. The award was £50,000, which was plainly very high. Millett LJ said that he would have found it very difficult to justify an award of more than £25,000. On the other hand, it was also plainly arguable that Mr Justice Woolf awarded too little in 1985 in the case of W v Meah. More significantly perceptions had changed since 1985. A jury was far better able than a judge to decide what sum was appropriate to compensation a victim of rape, and for the ordeal of the trial itself. The award of £50,000 was not so excessive as to justify the Court of Appeal in interfering.
Lord Justice Thorpe said that he concurred with the analysis of Lord Justice Rose on the issue of Mrs Williams’ evidence. In relation to damages, Thorpe LJ said in his view the award was too high. However he agreed that the manner in which the Defendant treated the Claimant after the rape and the way in which the litigation was conducted was extreme. The attack on the Claimant’s character and behaviour would amount to defamation unless it was justified. Therefore Thorpe LJ’s misgivings were not sufficient so as to lead him to dissent on the issue of damages.
FACTS:-
The Claimant was 32 years of age and was a tenant of the Defendant. She had previously worked at a hotel where the Defendant was a director. On the 27th February 1991, she and the Defendant had sexual intercourse in her bedroom. The Claimant alleged that she had been raped. The Defendant when interviewed by the police, initially denied that intercourse had taken place but later admitted to having intercourse with the Claimant. However he claimed that the intercourse was consensual. Following the report to the police, the Defendant harassed the Claimant as a result of which she took out an injunction against him. She suffered depression and required anti-depressants for six months. She also wanted to kill herself, suffered shock, had nightmares and did not like men coming near her. Four years after the rape, she was still having counselling.
At the criminal trial, two defence witnesses said that they had seen the Claimant at a hotel staff party, where the Claimant had pestered the Defendant. This was denied by the Claimant. One alleged that the Claimant “picked up blokes for cash.”
The Claimant sued the Defendant in the county court and the jury accepted the Claimant’s evidence. She was awarded £50,000 in damages.
The Defendant had applied to call evidence from a man called Charles Choak at the beginning of the trial, but this was refused by the trial judge. The trial judge also permitted evidence to be given by the Defendant’s wife who was called into trial under a subpoena. She said that her husband forced her to have sexual intercourse with him on a number of occasions and that they had separated in December 1991. The Defendant had also given an interview to the police in which he had said “there is no such thing as rape.” There was argument about whether this evidence was admissible. The trial judge said that the evidence had a close and striking similarity to the facts at issue, and it was substantially relevant to the issue that the jury had to address.
A landmark case on the admissibility of evidence, DPP v P [1991] 2 AC 447 was not cited to the judge, although he appeared to have known of the case. The effect of that case was to relax the rule in relation to admissibility of similar fact evidence.
The Defendant appealed on the basis that the evidence from Mrs Williams should not have been permitted. He also appealed on the basis that the judge should not have excluded the evidence of Mr Choak and that he had misdirected the jury. Finally the Defendant appealed against the level of damages.
HELD:-
The evidence of Mrs Williams
Lord Justice Rose said that although there were one or two similarities between the respective accounts, there were certainly not sufficiently striking similarities between the evidence of the Claimant and of Mrs Williams such as to justify the evidence of Mrs Williams being admitted before the jury on the basis of the law before DPP v P [1991]. However the judge was correct to refer to and rely on the answer given by the Defendant in the course of the interview with the police to the effect that “there is no such thing as rape.” Mrs Williams’ evidence was capable of supporting the view that, as this answer suggested, the Defendant’s attitude to sexual intercourse was that the woman’s consent was not a pre-requisite and that therefore her evidence went beyond mere propensity. It was evidence that was capable of being sufficiently probative despite its prejudicial quality within the principle enunciated in DPP v P. Therefore the judge was correct to admit the evidence of Mrs Williams.
Rose LJ then considered whether, if he was wrong in reaching that conclusion, and the evidence of Mrs Williams was wrongly admitted, there should be a re-trial. He referred to Order 59 Rule 11(2) which said that the Court of Appeal was not bound to order a new trial unless some substantial wrong or miscarriage had been occasioned.
The evidence of Mrs Williams was the fifth piece of evidence in the case, and there was already a substantial body of evidence corroborating the Claimant’s account. In addition, some of the evidence called by the Defendant was demonstrably false. The trial judge had also urged caution on the jury when they came to consider Mrs Williams’ evidence.
Rose LJ would not order a re-trial in these circumstances. There had been no substantial wrong or miscarriage.
The evidence of Mr Choak
Mr Choak had apparently, following the incident in question seen in the street a woman whom he assumed was the Claimant, invite the Defendant to go into premises where she lived. The Claimant had actually taken out an application for an injunction to restrain the Defendant from harassing her following the rape. Mr Choak’s evidence contradicted the allegation that the Defendant had harassed the Claimant following the events of February 1991. However no signed statement was served on the Claimant’s advisers until March 1995, i.e. about four weeks before trial. Furthermore Mr Choak had made no statement in relation to the Claimant’s application for an injunction.
Rose LJ said that there was no indication that the trial judge had approached the matter in anything other than a proper way or that he took into account or failed to take into account circumstances which he should not have taken into account, when exercising his discretion.
The Standard of Proof
Counsel for the Defendant had submitted that the judge in the present case had watered down the standard of proof actually required. Rose LJ read over the judgment of the trial judge on this issue, and said that he had made clear to the jury, first that the standard was not the same as the criminal standard; secondly that they had to decide the case on the balance of probabilities, and, thirdly, that because of the seriousness of the allegation, they had to be much more careful before they were satisfied that the allegation was proved. That was not a misdirection.
Damages
These had been assessed by the jury. Reference had been made to the case of W v Meah [1986] 1 All ER 935 which was a decision of Mr Justice Woolf. Two women, one of whom had been raped and the other who had been very seriously sexually assaulted were awarded £10,250 and £6,750, the equivalent in today’s monetary terms of about £15,000 and £10,000. The incidents in questions were much more serious than the attack on the Claimant in the present case. Attention was also drawn to a number of awards for rape by the Criminal Injuries Compensation Board in sums varying from £6,500 and £20,000.
Rose LJ said that the authorities showed that it was not for the Court of Appeal to interfere with a jury’s award merely because it was higher than a judge would have awarded. The circumstances and consequences of rape were in a quite different category from personal injury cases in general. This case was different from that in the CICB cases and W v Meah. In W v Meah the question of rape was not in issue and the victim did not have to endure the subsequent events, including giving evidence in the circumstances referred to, which marked the present case. Attitudes towards rape had changed in the decade since W v Meah was decided, the penalties passed by the criminal courts had increased and rape within marriage had become recognised as a criminal offence.
Rose LJ considered the authorities on jury awards. He said that it was possible that, had he been the judge, he would not have awarded the Claimant the figure which the jury awarded to her. However taking into account, not only the circumstances of the rape and its consequences to this particular Claimant, all the other features of the case including the harassment of the Defendant and the way in which the trial was conducted, it was quite impossible to say that £50,000 was out of all proportion to the circumstances of the case.
Therefore Rose LJ would dismiss the appeal.
Lord Justice Millett said that he had reached a different conclusion on the admissibility of Mrs Williams’ evidence. The Claimant’s counsel had sought to justify its admission on two different bases: first, as similar fact evidence and, secondly, as evidence of character.
Millett LJ referred to Phipson on Evidence which said that there were two exceptions to the admission of such evidence, the first of which is that such evidence is not admissible if the similar acts committed by the Defendant do no more than show a general disposition, habit or propensity to commit the acts in question and a consequent probability of his having committed the act or possessed the state of mind alleged. In DPP v P the House of Lords relaxed the degree of similarity, which might be required before evidence of similar facts could be admitted. However it did not dispense with the requirement that the evidence must be logically probative of an issue in dispute in the case, nor did it dispense with the general principle that mere evidence of propensity or disposition to commit acts of the kind alleged was not relevant to such an issue.
Mrs Williams’ evidence that her husband had forced himself on her was relevant in relation to the issue of the kind of person he was, but it had no relevance in respect of the prior question whether Miss Griffiths did or did not consent to intercourse with him. It would be a different matter if there was evidence from other tenants of the Defendant that he forced himself on them. Millett LJ referred to the dicta of Lord Mackay LC in R v H [1995] 2 All ER 865 and said that in his judgment Mrs Williams’ evidence could not possibly corroborate Miss Griffiths nor could her evidence be admitted as similar fact.
The second basis for admission of this evidence was character, which was in issue. Mr Williams had attacked Miss Griffiths’ character and he put his own good character up before the court. However character evidence would not have made Mrs Williams’ evidence admissible as evidence-in-chief. It would only have exposed Mr Williams to cross-examination as to credit and even then, as Phipson on Evidence stated, evidence of rebuttal would not have been permitted. Evidence of bad character led in rebuttal of evidence of good character had to be of the same kind and subject to the same limits as that to which it was put in answer. It should not be related to specific instances but should relate to the general reputation of the accused. Therefore Mrs Williams evidence did not go to credit but to propensity and was therefore inadmissible.
Millett LJ did not overlook the fact that when he was interviewed by the police, Mr Williams had said “there is no such thing as rape.” That statement could be put to the jury as an admission of the state of mind of the Defendant.
In any event, Millett LJ was of the view that there had been no substantial wrong or miscarriage of justice, for the reasons given by Rose LJ. There was abundant evidence before the jury.
In relation to the award of damages, Millett LJ was seriously concerned about the size of the award of damages. The award was £50,000, which was plainly very high. Millett LJ said that he would have found it very difficult to justify an award of more than £25,000. On the other hand, it was also plainly arguable that Mr Justice Woolf awarded too little in 1985 in the case of W v Meah. More significantly perceptions had changed since 1985. A jury was far better able than a judge to decide what sum was appropriate to compensation a victim of rape, and for the ordeal of the trial itself. The award of £50,000 was not so excessive as to justify the Court of Appeal in interfering.
Lord Justice Thorpe said that he concurred with the analysis of Lord Justice Rose on the issue of Mrs Williams’ evidence. In relation to damages, Thorpe LJ said in his view the award was too high. However he agreed that the manner in which the Defendant treated the Claimant after the rape and the way in which the litigation was conducted was extreme. The attack on the Claimant’s character and behaviour would amount to defamation unless it was justified. Therefore Thorpe LJ’s misgivings were not sufficient so as to lead him to dissent on the issue of damages.