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					COURT OF APPEAL

R v TOOTHILL [1998] CLR 876

19 June 1998

Editor’s comments in red.

Full text

WRIGHT J:

… This appellant, Peter Kendall Toothill, … was convicted of …
attempted burglary with intent to rape …

… On 27th September 1996, a lady called Mrs H was alone in her house in
Blackburn. That was a detached house in a garden, situated in an isolated
part of the town.

At about 11.00 pm that night, looking out of her kitchen window, she saw
the appellant standing 5 to 6 feet from the rear of the house, looking up and
holding the front of his trousers in the area of his crotch. Her impression
was that he might have been masturbating. It follows that if she could see
him from a lighted window, he could see her. She telephoned the police.
He was arrested in the garden, where a knife and a glove were found. On
his arrest, a condom was found to be in his possession. He was a man who
had two previous convictions for rape in 1980. On both such occasions he
had pretended he was lost. He had approached the complaint and asked for
directions and on each occasion he was equipped with a knife. …

The prosecution case was that his presence at the house was with the
intention to rape a woman and that his actions indicated that he had
attempted to burgle the house for that purpose. …
…
When he was giving evidence, he admitted that he had knocked on the
front door certainly twice …
…
The basic principles of law to be found upon the question as to whether or
not a defendant’s activities amount to the offence of attempt under the
Criminal Attempts Act are most conveniently to be found in R v Rowley
94 Cr App R 95 [in the Library]. At page 100 of that authority, the Lord
Chief Justice, Lord Taylor, said this:

‘To found a charge of attempt, there must be evidence of an act which is
more than merely preparatory for the commission of the full offence ...’
…
Guidance as to whether and in what circumstances a defendant’s activities
have passed within the realm of mere preparation and moved into the area
of an attempt is to be found in the observations of Lord Lane in R v
Gullefer [1990] 1 WLR 1063 [in the Library]. At page 1065, the Lord
Chief Justice, giving the judgment of this Court, said this.

‘The judge’s task is to decide whether there is evidence upon which a jury
could reasonably come to the conclusion that the appellant had gone
beyond the realm of mere preparation and had embarked upon the actual
commission of the offence. If not, he must withdraw the case from the
jury. If there is such evidence, it is then for the jury to decide whether the
defendant did in fact go beyond mere preparation.’
…
A well-known example of the application of this principle can be found in
R v Jones 91 Cr App R 351 [in the Library]. It is unnecessary to cite any
particular extract from the judgment in that case, but the circumstances
were that the defendant was held to have been rightly convicted of
attempted murder when he was proved to have produced a loaded sawn-off
shotgun and pointed it at his intended victim who then managed to disarm
him. The Court of Appeal held that these activities were capable of
amounting to an attempt even though there remained three more acts for
the defendant to perform, namely, to remove the safety catch, to put his
finger on the trigger and pull, before the full offence could have been
committed.

The learned trial judge in this case also considered R v Campbell 93 Cr
App R 350 [in the Library] and, in particular, the passage at page 354.
Watkins LJ said:

‘It is sufficient for a judge, when directing a jury upon the law of attempt,
to say, before you, the jury, can convict the defendant you must be
satisfied so as to feel sure of two things: first, that he intended to commit a
robbery, for instance, and, secondly, that with that intent he did an act
which was more than an act of preparation to commit that offence. It is for
you to decide whether the act relied upon by the prosecution was more
than merely preparatory…’

The learned judge ruled that the evidence in the present case was such that
a jury could properly consider it to amount to an attempt to commit the
offence charged.

It is not always easy to discern the point at which preparation matures into
the first steps of the actual attempt. Thus, in the context of the present case,
driving to the scene, equipping himself with a condom and a knife, and
walking round and round the house are all acts which chime with the
circumstances in R v Geddes (unreported 25th June 1996) in which the
activities of that appellant could readily and recognisably be treated as
preparatory acts only.

It was the similarity to the circumstances in Geddes that persuaded the Full
Court to grant this appellant leave to appeal. In Geddes, the appellant in
that case was seen wandering around the boys’ lavatory block in a school.
He had no connection with the school and had no right to be there. During
the course of the day he was spoken to by a teacher and shouted at by a
police officer who happened to be on the premises, but he continued to
wander around. When he left the premises he discarded his rucksack, and
in it was found articles such as a kitchen knife, a length of rope and a role
of masking tape, which indicated, if I may be forgiven for the use of the
vernacular, that he was up to no good. The charge that was brought against
him on the basis of that evidence was that he had attempted false
imprisonment, the allegation being he was intending to catch and restrain
any boy who might have entered the lavatories. The rope would be used to
tie, the knife to frighten him and the tape to cover his mouth to prevent him
screaming. In the context of such facts, this Court came to the conclusion
that it had not been established that any act had been done which passed
beyond the realm of preparatory steps.

In the present case, the crucial step that this appellant took, as it seems to
us, is that he knocked at the door [Editor’s italics]. By so doing, in our
judgment, he moved from the preparatory to the executory stage of his
plan. No doubt he could still have changed his mind if the door had been
answered and retreated; but that was not all. By seeking to procure that the
door was opened by knocking at it, he took the first step which was
designed to bring his plan … into effect. It is trite law that a voluntary
withdrawal is no defence to an allegation of attempt.
…
We conclude that … the learned judge was right to hold that there was
evidence upon which a jury properly directed could safely conclude that
the appellant had indeed attempted to commit the offence charged.
…
In our judgment nothing has been put before this Court which would lead
us to the conclusion that undoubtedly a very serious offence was other than
safe and secure. In those circumstances this appeal must be dismissed.

Full text

WRIGHT J:

On 11th August 1997, this appellant, Peter Kendall Toothill, appeared
before the Recorder of Preston, His Honour Judge Lockett, sitting in the
Crown Court at Birmingham. He was there convicted of one count of
attempted burglary with intent to rape and one count of possession of an
offensive weapon in a public place, namely a knife. Sentence was
adjourned after conviction for preparation of psychiatric reports and on
20th November 1997 he was sentenced to 10 years’ imprisonment for the
attempted burglary with intent to rape and 2 years, imprisonment to run
concurrently for the offensive weapon offence, making a total of 10 years’
imprisonment in all. An order under section 44 of the Criminal Justice Act
1991 was also made. He now appeals against that conviction by leave of
the Full Court granted on 24th March 1998.

A synopsis of the events which gave rise to the two counts on the
indictment can be relatively briefly set out. On 27th September 1996, a
lady called Mrs H was alone in her house in Blackburn. That was a
detached house in a garden, situated in an isolated part of the town.

At about 11.00 pm that night, looking out of her kitchen window, she saw
the appellant standing 5 to 6 feet from the rear of the house, looking up and
holding the front of his trousers in the area of his crotch. Her impression
was that he might have been masturbating. It follows that if she could see
him from a lighted window, he could see her. She telephoned the police.
He was arrested in the garden, where a knife and a glove were found. On
his arrest, a condom was found to be in his possession. He was a man who
had two previous convictions for rape in 1980. On both such occasions he
had pretended he was lost. He had approached the complaint and asked for
directions and on each occasion he was equipped with a knife. In one such
case he was a considerable distance away from his home.

The prosecution case was that his presence at the house was with the
intention to rape a woman and that his actions indicated that he had
attempted to burgle the house for that purpose. The defence case was that
he walked round the house, trying to find someone to give him directions
as he was lost. He was not guilty of the offence of which he was charged.

Turning now to the evidence in a little more detail. Mrs H told the court
that the house in which she lived had anti-burglar or alarm sensors located
near the rear kitchen door and near a door at the front, which had in
previous years been used as a front door but was now closed up. There was
also a third external door at the side of the house, which is now used as the
main entrance, but that door did not have a sensor. When the sensors were
activated by someone moving about within range of those instruments, a
buzzer would go off inside the house according to which sensor was being
activated. No alarm sound could be heard outside.

She was in the kitchen, which had no curtains or blinds, when the rear
sensor went off. She went to the dining room and drew back the curtains
and saw the appellant standing 5 or 6 feet away from the rear of the house
looking, as she described, intent, excited and alert, with his hand on the
front of his trousers over his crotch. She telephoned Blackburn police
station and said there was a weird man at the back of the house; and an
incident log records that telephone call as taking place at 11.03 pm. She
then heard a buzzing, first from the sensor at the front of the house, which
continued for about a minute, and then from the rear sensor being activated
again. She peered through the dining room curtains again and saw the
appellant walking away from the house and passing the rear kitchen door.
That was evidence, as it seems to us, from which the jury could properly
infer that the appellant was plainly walking round and round the house.

She went upstairs, and saw him through a landing window in the backyard,
turning round and looking up. It appeared again that he had seen her.
Shortly after that the front buzzer went off a second time and she dialled
999. By that time the police were just arriving at the house and she let an
officer into the house through the side door.

The doors were equipped with bell pushes. Until the police arrived those
had not been operated. When the two police officers arrived and walked up
the driveway to the house they noticed the appellant emerge from an area
of bushes located at the side of the front door, at the side front door. Police
Constable Ingham approached the appellant, who informed the officer he
was lost. He had parked his car and could not now find it. He said - and
this is a piece evidence of some significance - that he had been knocking at
the house to see if they might know where it was. The police officer noted
that he was looking from side to side and was sweating profusely. It is to
be remembered that this occurred in September. That explanation was not
accepted by the police officer and the appellant was arrested for being on
enclosed premises for an unlawful purpose.

A dog handler attended the premises and found under the bushes a black-
handled knife and a white lady’s glove, both of which belonged to the
appellant. The appellant’s attitude to that discovery was that the police
officers had taken both items (although he accepted they were his) from his
car and planted them under the bushes. The police officers’ response was
that at that stage they did not even know where his car was. Police
Constable Williams then searched for and located the appellant’s car,
which was parked outside the Polish Club in Blackburn, which was
between 150 and 200 yards from Mrs H’s house. When the appellant was
searched, a condom was found in the pocket of his jacket.

He was interviewed the following day. He told the police officers that he
had driven from Leicester, where he lived, to his brother’s house in
Keighley, West Yorkshire on 25th September. On 27th September he had
driven from Keighley to Manchester to see someone, who he was not
prepared to name, and he then intended to return to Keighley via
Blackburn. It is right to point out that it would be a very considerable
distance off his direct route and a long way from his home.

He originally told the police officers that he arrived in Blackburn at 4.30
pm. In evidence he told the court he had arrived at 10.30 pm. He parked
his car, went for walk, and in his interview suggested that he had spent 3
hours sleeping in the car. After that he could not find his car. He asked for
directions. Eventually he arrived at Mrs H’s house and knocked on the
door, intending to ask the occupants for assistance. What assistance he
thought might be forthcoming was never made clear. He accepted that the
knife and glove were his property, but, as indicated, he suggested that the
police had planted them where they purported to find them.
He denied any intent to burgle or rape when he gave evidence. He
maintained that he had lost his car and had gone to the house merely to
seek assistance. He accepted that he had lied about the route that he had
taken in interview, but asserted that he had never seen anybody in the
house.

When he was giving evidence, he admitted that he had knocked on the
front door certainly twice, but he denied he had knocked on the back door.
When it was put to him that he had admitted the fact to the police in
interview, he said that that had been a mistake. He explained the condom
in his pocket as being something that he carried around because he had a
female friend in Leicester with whom he had a relationship and she
insisted he should have one available.

Two major issues arise upon this appeal: the first arises as a result of a
submission made by Mr Somerset-Jones, who appeared both at trial and
before us, as to whether or not there was any case fit to leave to the jury.
The submission was that, on the evidence that the court had heard, at the
close of the prosecution case the only proper conclusion that could be
arrived at was that the appellant had done no more (even drawing every
other inference against him) than to undertake the preparatory steps
towards the commission of the offence with which he was charged, namely
burglary with intent to commit rape. (The evidence at that stage was that,
on the basis of his admissions to the police, he had approached the house
and knocked on the door.)

The basic principles of law to be found upon the question as to whether or
not a defendant’s activities amount to the offence of attempt under the
Criminal Attempts Act are most conveniently to be found in R v Rowley
94 Cr App R 95 [in the Library]. At page 100 of that authority, the Lord
Chief Justice, Lord Taylor, said this:

‘To found a charge of attempt, there must be evidence of an act which is
more than merely preparatory for the commission of the full offence.
Attempts are now governed by statute. Section 1(1) of the Criminal
Attempts Act 1981 provides as follows:

‘If, with the intent to commit an offence to which this section applies, a
person does an act which is more than merely preparatory to the
commission of the offence, he is guilty of attempting to commit the
offence.’
Section 4(3) provides:

‘Where, in proceedings against a person for an offence under section 1
above, there is evidence sufficient in law to support a finding that he did an
act. falling within subsection (1) of that section, the question whether or
not his act fell within that subsection is a question of fact’.’

Guidance as to whether and in what circumstances a defendant’s activities
have passed within the realm of mere preparation and moved into the area
of an attempt is to be found in the observations of Lord Lane in R v
Gullefer [1990] 1 WLR 1063 [in the Library]. At page 1065, the Lord
Chief Justice, giving the judgment of this Court, said this.

‘The judge’s task is to decide whether there is evidence upon which a jury
could reasonably come to the conclusion that the appellant had gone
beyond the realm of mere preparation and had embarked upon the actual
commission of the offence. If not, he must withdraw the case from the
jury. If there is such evidence, it is then for the jury to decide whether the
defendant did in fact go beyond mere preparation.’

That is the way in which the learned judge approached this case, and he
ruled there was sufficient evidence. Then, at page 1066, Lord Lane added
those important words:

‘It seems to us that the words of the Act of 1981 seek to steer a midway
course. They do not provide, as they might have done, that the Eagleton
test is to be followed, or that, as Lord Diplock suggested, the defendant
must have reached a point from which it was impossible for him to retreat
before the actus reus of an attempt is proved. On the other hand the words
give perhaps as clear a guidance as is possible in the circumstances, on the
point of time at which Stephen’s ‘series of acts’ begin. It begins when the
merely preparatory acts come to an end and the defendant embarks upon
the crime proper. When that is will depend of course upon the facts in any
particular case.’

A well-known example of the application of this principle can be found in
R v Jones 91 Cr App R 351 [in the Library]. It is unnecessary to cite any
particular extract from the judgment in that case, but the circumstances
were that the defendant was held to have been rightly convicted of
attempted murder when he was proved to have produced a loaded sawn-off
shotgun and pointed it at his intended victim who then managed to disarm
him. The Court of Appeal held that these activities were capable of
amounting to an attempt even though there remained three more acts for
the defendant to perform, namely, to remove the safety catch, to put his
finger on the trigger and pull, before the full offence could have been
committed.

The learned trial judge in this case also considered R v Campbell 93 Cr
App R 350 [in the Library] and, in particular, the passage at page 354.
Watkins LJ said:

‘It is sufficient for a judge, when directing a jury upon the law of attempt,
to say, before you, the jury, can convict the defendant you must be
satisfied so as to feel sure of two things: first, that he intended to commit a
robbery, for instance, and, secondly, that with that intent he did an act
which was more than an act of preparation to commit that offence. It is for
you to decide whether the act relied upon by the prosecution was more
than merely preparatory.

‘To embark discursively upon what the law was previously and to provide
a jury with elaborate instances of what can and what cannot constitute an
attempt may serve to conclude the jury specially seeing that the law
contained in the Act itself is clear.’

The learned judge ruled that the evidence in the present case was such that
a jury could properly consider it to amount to an attempt to commit the
offence charged. It is not always easy to discern the point at which
preparation matures into the first steps of the actual attempt. Thus, in the
context of the present case, driving to the scene, equipping himself with a
condom and a knife, and walking round and round the house are all acts
which chime with the circumstances in R v Geddes (unreported 25th June
1996) in which the activities of that appellant could readily and
recognisably be treated as preparatory acts only.

It was the similarity to the circumstances in Geddes that persuaded the Full
Court to grant this appellant leave to appeal. In Geddes, the appellant in
that case was seen wandering around the boys’ lavatory block in a school.
He had no connection with the school and had no right to be there. During
the course of the day he was spoken to by a teacher and shouted at by a
police officer who happened to be on the premises, but he continued to
wander around. When he left the premises he discarded his rucksack, and
in it was found articles such as a kitchen knife, a length of rope and a role
of masking tape, which indicated, if I may be forgiven for the use of the
vernacular, that he was up to no good. The charge that was brought against
him on the basis of that evidence was that he had attempted false
imprisonment, the allegation being he was intending to catch and restrain
any boy who might have entered the lavatories. The rope would be used to
tie, the knife to frighten him and the tape to cover his mouth to prevent him
screaming. In the context of such facts, this Court came to the conclusion
that it had not been established that any act had been done which passed
beyond the realm of preparatory steps.

In the present case, the crucial step that this appellant took, as it seems to
us, is that he knocked at the door. By so doing, in our judgment, he moved
from the preparatory to the executory stage of his plan. No doubt he could
still have changed his mind if the door had been answered and retreated;
but that was not all. By seeking to procure that the door was opened by
knocking at it, he took the first step which was designed to bring his plan
(as the Crown suggested it was) into effect. It is trite law that a voluntary
withdrawal is no defence to an allegation of attempt.

A secondary argument raised on this aspect of the case is that, when
considering whether the appellant attempted burglary with intent to rape, it
was incumbent upon the learned judge to look for evidence not merely of
an attempt to burgle but also an attempt, as it were, to commit rape, namely
that he would have to have the knowledge that there was a person in the
house, who was at least likely to be vulnerable to the offence of rape to lay
the foundation for a finding that that was what the appellant had in his
mind; in other words, to look at the offence as an undivided whole.

In our view, that is an inappropriate and misleading way to approach the
whole concept of an inchoate offence of this kind. The actus reus of this
offence is the act of entering the property as a trespasser. That which
converts it into burglary is the presence of the trespasser with the intention
to commit one or other of the offences set out in section 9(2) of the Theft
Act 1968. The attempt is to do the act, not to have the intention. We
conclude that on this aspect of the case the learned judge was right to hold
that there was evidence upon which a jury properly directed could safely
conclude that the appellant had indeed attempted to commit the offence
charged. His directions to the jury when he came to sum-up were entirely
in accordance with the guidance given in which we have already cited.
At page 9 of the transcript of the summing-up, he said:

‘To put the law into its context in this case, an attempt is this. If with intent
to commit the full offence which I have just defined he does an act which
is more than merely preparatory to the commission of the offence, he is
guilty of an attempt to commit the offence provided you find all the other
two - the other ingredients proved.’

Then a little further down the page, he said:

‘Was that [namely the knocking] a preparatory act or was that going
further so that it is part of an intention to commit the full offence? In other
words, had he gone on from the knocking are you satisfied that the full
offence would have been committed?’

In our judgment that is a direction which is entirely in accord with the
guidance given in the relevant. authorities.

Mr Somerset-Jones also complains of the next passage in the summing-up,
which reads as follows:

‘If you so find that was more than a preparatory act, if you find that there
was knocking and you have been addressed on that at some length by the
defence, then you have an attempt in law. If you find that it was merely
preparatory, then that is the end. You need not go any further. You return a
verdict of not guilty.’

Mr Somerset-Jones tells us that he had indeed addressed the jury earlier
that same day on that basis. Because, as we understand it, he readily
accepted that the jury would be likely to find the whole story of why the
appellant was there in the garden of the house in the first place was a pack
of lies, they should also regard with great suspicions his assertion that he
did in fact knock on the door. Mr Somerset-Jones urged upon us, and
indeed the jury, that this would all be part of a self-serving story. As such,
he complains that the learned judge did not make it sufficiently clear to the
jury that there was an issue upon which they should seriously apply their
minds as to whether they should accept as true the appellant’s admission
made both to the police and in his evidence in the witness box, that he had
indeed knocked at the door of the house, not once but twice, and on one
occasion quite forcefully.
In our judgment, this was in truth an admission. It was upon the admission
that he had knocked on the door that the whole case essentially turned. It
was upon the existence of this admission that the Crown were able to say
that he had, indeed, made an attempt to burgle the house.

On the evidence there was no live issue on this aspect of the matter. As we
have already indicated, the appellant had admitted, both in interview and
evidence, that he had indeed knocked at the door, and he never resiled
from that situation. It might have been different, as Mr Henriques on
behalf of the Crown pointed out to us, if he had attempted to throw aside
his entire story and effectively asserted that he was not in the garden for
the purposes that he had originally indicated, but that he had never
knocked on the door and therefore never gone beyond the preparatory
stages of committing the offence. But that was not the case that the
defendant sought to put before the jury. It may, as it appears, have been the
case that Mr Somerset-Jones would have preferred to put before the jury.
He complains that the judge did not remind the jury to an adequate degree
about the existence of that possible argument that he, Mr Somerset-Jones,
wished the jury to consider.

In our judgment, bearing in mind that final speeches took place on the
morning of the Monday and was followed immediately by the summing-
up, including the reference that the learned judge made to the question as
to whether the jury could find there was knocking, and by an oblique
reference reminding them of what Mr Somerset-Jones said about it, there
can be no doubt, that the jury would fully have in mind the point that had
then been raised. For that reason, we conclude there is nothing in that point
either.

The final point that is raised before us in this appeal is the question of the
admission before the jury of similar fact evidence. The position was that
this appellant has two previous convictions for rape. In 1980 he was
sentenced to a long term of imprisonment at Bristol Crown Court for those
offences. The Crown submitted to the learned judge that there were
sufficient similarities between the instant case and those previous matters
as to make it right and proper that the jury should know the circumstance
of those previous convictions. The learned judge, in dealing with that
application, reminded himself of the circumstances of the present case,
namely, the fact that the defendant was claiming that he had forgotten
where he had left his car and he was at this secluded house to ask for
directions, also he had in his possession or control a knife, and that he was
a great distance away from where he lived or where his work was, namely
Leicester.

In the 1980 cases there were two young victims, both teenagers. In the case
of the first victim the modus operandi employed by the appellant was, first
of all, an approach making an enquiry which suggested he was lost;
secondly, the use of a knife in order to procure the victim’s submission;
and thirdly, the fact that on that occasion he was a very long distance away
from his then home. In the case of the second victim, an offence committed
some 2 months later, he approached her and asked, ‘Does this road lead
anywhere?’, which, by implication, was indicating he was lost. He again
made use of a knife in order to procure her submission. He was again some
distance, although not a very great distance (about 9 miles in fact) from his
home. The learned judge reminded himself of the guidance given by the
House of Lords in DPP v P (1991) 2 AC 447, which is now, of course, the
leading authority on the question of the basis upon which similar fact
evidence is to be adduced. He concluded that the evidence should be
admitted.

Mr Somerset-Jones argues, first of all, that those offences were
significantly different from the present. First of all, he points out, which is
undoubtedly true, that those two offences were offences of rape and not
burglary with intent to commit rape. However, in our judgment, the
relevance of that evidence was to the issue of what the appellant’s
intention was at the time he attempted to enter the house. In that context,
and against that background, the offences are indeed not merely similar but
virtually identical.

Secondly, Mr Somerset-Jones submitted to the judge it is still necessary to
be able to discern a striking similarity between the circumstances of the
previous offences and the instant case. He cited to the learned trial judge,
although only referred briefly to us, the case of R v Johnson [1995] 2 Cr
App R 41. In that case, as Mr Somerset-Jones accepted, the issue was
identity; and in DPP v P, Lord Mackay LC made it clear that special
considerations apply to cases where what is in issue is identity. In such
circumstances, we do not conclude that either ourselves or indeed the
learned trial judge would have received any assistance from Johnson.

The principles to be applied are those set out in the classic and now only
too well-known passage from Lord Mackay’s speech in P, in which he said
this:
‘From all that was said by the House in R v Boardman, I would deduce the
essential feature of evidence which is to be admitted is that its probative
force in support of the allegation that an accused person committed a crime
is sufficiently great to make it just to admit the evidence, notwithstanding
that it is prejudicial to the accused in tending to show that he was guilty of
another crime. Such probative force may be derived from striking
similarities in the evidence about the manner in which the crime was
committed and the authorities provide illustrations of that of which R v
Straffen and R v Smith provide notable example. But restricting the
circumstances in which there is sufficient probative force to overcome
prejudice of evidence relating to another crime to cases in which there is
some striking similarity between them is to restrict the operation of the
principle in a way which gives too much effect to a particular manner of
stating it, and is not justified in principle.’

There are, as Mr Somerset-Jones pointed out to us, two main differences
between the two offences of which the appellant was convicted in 1980
and the circumstances of the present case. In both the cases of rape the
victims were accosted and the rape took place alfresco. Both victims were
much younger than the aggrieved in the present case. In the second case
also, the appellant was not a particularly great distance away from the
place where he was then living. But, on the other hand, in our judgment,
there are indeed similarities between the two previous offences and the
present one which might be regarded as striking - the excuse to approach
the victim by pretending to be seeking directions and the use of a knife are
the obvious ones. The strong inference, in our judgment, is that this is
indeed the modus operandi adopted by the appellant when he is set on
achieving sexual gratification. The differences pointed out by Mr
Somerset-Jones do not essentially undermine that conclusion. We agree
with the learned judge that, notwithstanding the obvious prejudicial effect
of this evidence, its probative force was very considerable and that there
are no grounds for asserting the judge’s exercise of his discretion was
exercised in any other than a reasonable way.

There are no other complaints about the summing-up or any other matter
that took place during the trial. In our judgment nothing has been put
before this Court which would lead us to the conclusion that undoubtedly a
very serious offence was other than safe and secure. In those circumstances
this appeal must be dismissed.

				
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