Page 435 - Magistrates Conference 2019

Page 28

119. In his discussions with counsel, the Recorder concluded that a modified direction was appropriate and gave an
appropriate direction. We consider that the direction given was as fair to the appellant as was possible in the
circumstances. Even though the convictions were of some antiquity, the Recorder was quite entitled to conclude that the
appellant was not entitled to a positive good character direction as to credibility; and that the weight that the jury gave
his previous convictions was a matter for them. He fairly went on to highlight to the jury both the antiquity of the
convictions and the fact that, since those offences were committed, "he has behaved very well".

120. Finally, we conclude that, even if there had been a misdirection, it had no effect on the conviction. We agree
with Mr Whittam that this was a strong case. The appellant had already made a remark to the complainant indicating
his sexual attraction to her earlier in the evening; there could be no doubt that he had sexual touched the complainant
whilst she was asleep; and although at trial his defence was that he had a sleep disorder, that was directly contrary to the
answers which he had given in his police interview.

121. For those reasons, we consider that Walker's appeal against conviction must be dismissed.

JOHNSTONE

(a) Facts

122. The mother of the complainant was a long-standing friend of the appellant. The appellant, who is now aged 51,
spent a lot of time at their home. On 1 May 2010, C (then aged 15) complained that the appellant had sexually
assaulted her on a number of occasions between 2008 and 2010. The police were informed and C was interviewed on
two occasions, during which she made detailed complaints about the appellant's conduct. These formed the basis of the
indictment. They ranged from French kissing and love bites to two allegations of oral sex.

123. The appellant was tried by Her Honour Judge Mowat and a jury at Reading Crown Court in October 2011. The
defence case was a compete denial. It was suggested that C had fabricated her account so that she could return home to
live with her mother.

124. At the time of the trial, the appellant had 20 previous convictions for a total of 89 offences. 30 of these were
offences of dishonesty, committed over a period of 17 years, including numerous burglaries and two offences of
conspiracy to steal. He also had convictions for arson, common assault and a range of motoring offences. His last
conviction had been in 1996.

125. In the discussion prior to the summing up, the judge agreed with counsel that the appellant was entitled to a
modified good character direction. She went on to give that direction in these terms:

"We know about the defendant's criminal past, but we also know that he has not been convicted of any offences since
1996 and he has never been convicted of any sexual offences. Please bear that in mind in deciding, first of all, whether
or not he committed the offences you are considering today and, secondly, in deciding whether or not you can believe
the evidence that he gives before you. Do not be tempted to convict him just because he has a criminal record or just
because, if this be the case, you find his manner and attitudes unattractive. You have to look at the evidence that the
prosecution put before you and decide whether you can be sure it's true, that's what it comes to." [page 8D-G of the
transcript of the summing up]