Page 434 - Magistrates Conference 2019

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the propensity direction but complaint is made about the direction on credibility.

114. Mr Blaxland maintained, first, that the fact that no application was made by the Crown at trial to introduce his
convictions under the Criminal Justice Act 2003 amounted to a concession at trial that the convictions were not
probative, and meant that the judge was bound to give a modified good character direction. Secondly, in breach of the
principle in M (CP) the judge abrogated his responsibility to decide whether the appellant was entitled to a credibility
direction and left it to the jury to decide. Thirdly, the direction that the jury would have "to assess what impact if any
those old convictions have in relation to the question of whether you believe what he says" was a serious misdirection
because it invited the jury to consider holding his convictions against him, despite the lack of any probative value. No
such direction would have been given had the appellant himself not elected to put his convictions before the jury.
Fourthly, Mr Blaxland did not accept that this was necessarily a strong case, and the fact that the appellant had said
something, which indicated a sexual attraction to the complainant, earlier in the evening, did not assist on the question
of whether his sexual touching was conscious as opposed to unconscious. Had the appellant been awake he would
inevitably have been aware of the reaction his behaviour would provoke from the complainant.

(c) Respondent's detailed Submissions

115. Mr Whittam submitted that the appellant's extensive previous convictions meant that he was not a man of good
character and was not entitled to be treated as such. There was no entitlement to a positive credibility direction. The
appellant chose to put his previous convictions before the jury and there was no evidence that he was not advised as to
the risks. He plainly did so to establish the absence of any previous convictions for sexual offences. However, once
before the jury, the offending had to be addressed by the judge: it could not simply be left. A direction which invited
the jury to ignore the convictions would have been a significant indulgence to the appellant and would have been an
affront to common sense. In addition, Mr Whittam submitted that, faced with a difficult situation, the Recorder provided
a balanced and ultimately fair direction, and that to describe the appellant's character as something of a "mixed bag" was
arguably generous to him.

116. Mr Whittam also submitted that this was a strong case. The appellant had paid unwelcome compliments to the
victim on the night in question. There was a significant inconsistency between his interview under caution and his
evidence at trial. In interview he stated that he did not know how his DNA could have got on to the victim's underwear
and he denied that he had a sleeping disorder that could account for what had taken place. His case at trial, in contrast,
was that he had inserted his finger in to the victim's vagina whilst he was asleep and that he did have a sleeping
disorder. The jury plainly disbelieved the evidence of both the appellant and his wife. In all the circumstances
therefore any misdirection that the court might conclude occurred does not render the conviction unsafe.

(d) Analysis and Conclusions

117. First, for the reasons already set out above, we reject Mr Blaxland's submission that, because the evidence of bad
character was not adduced by the Crown under s.101, it follows that the defendant was entitled to a good character
direction. That is a fallacious proposition for the reasons that we have explained.

118. Secondly, we do not agree that the Recorder abdicated his responsibility by leaving questions of character to the
jury. This was not similar to the situation that arose in M(CP). On the contrary, the Recorder gave a full and positive
direction on propensity about which no issue was taken. The only part of the character direction that is now in issue
concerns credibility.