The Court of Appeal has dismissed S. L.’s appeal against conviction, finding no error in the trial judge’s decision to keep all 26 counts on one indictment. The appeal challenged only the refusal to hold separate trials for counts 25 and 26, which concerned two complainants different from the complainant involved in the other counts.
The judgment, delivered by Edwards J on 8 May 2020, records that S. L. was convicted by a jury in October 2017 of 21 offences: 11 counts of indecent assault under the common law and section 6 of the Criminal Law (Amendment) Act 1935; eight counts of indecent assault under the common law and section 10 of the Criminal Law (Rape) Act 1981; and one count of sexual assault under section 2 of the Criminal Law (Rape) (Amendment) Act 1990. Nineteen convictions concerned complainant F, one concerned M and one concerned E. The appeal dealt with conviction only; the judgment says the appeal against sentence was separate.
Before trial, the defence sought to sever the two counts involving M and E, arguing that their prejudicial effect outweighed their evidential value and that the similarities between the allegations were insufficient. The prosecution argued that the complaints shared features capable of showing a system. The trial judge refused the application, identifying similarities including the complainants’ ages, their family and neighbour relationship with S. L., and allegations of sudden digital penetration without prior discussion.
The Court of Appeal said the trial judge was correct. It highlighted that the three complainants were girls from the same family, related to S. L. in the same degree and living close to his family farm. The court also identified a degree of trust arising from their family and neighbour relationships, and digital vaginal penetration in all three complaints. It noted evidence that the complainants were held from the side or behind during the penetration.
The court acknowledged differences. F described abuse over several years and a range of sexual acts, while M and E each described one incident. E’s allegation concerned a corridor in a public house during a family event, unlike the locations described by her sisters. The court agreed this was a significant difference, but said it did not require severance given the other similarities.
The appeal court found an evidential basis for the trial judge’s assessment that the complaints could provide evidence of a system. It also inferred from the overall ruling that the judge had considered whether the evidence was disproportionately prejudicial or otherwise unfair. The trial judge had not relied on the alternative “inherent improbability” rationale, and the appeal court made no additional finding on it.
The sole ground of appeal against conviction was dismissed. The judgment did not determine the separate appeal against sentence.