Page 440 - Magistrates Conference 2019

Page 33

"Apart from one conviction for obtaining property by deception in September 2000 for which he received Community
Service, he has no convictions of any kind for any sort of criminal offence. He has never been convicted of any sort of
sexual offence. Members of the Jury, this is a matter to be taken into account by you. Whether the defendant, Mr
Hunter, is the sort of man to commit serious sexual offences is relevant to your consideration of the case against him.
The absence in his record of any previous such behaviour is a feature which you should consider in his favour. The
weight you attach to his character is a matter for your judgment. In assessing its significance, you are entitled to take
into account all the evidence you have heard about him. Good character cannot of course amount to a defence to the
charges which the defendant now faces" [page 31D-G of the transcript of the summing-up].

148. On 30 January 2012, the appellant was convicted unanimously of five counts of sexual assault, two counts of
rape, and one count of attempted rape. On 9 March 2012 he was sentenced on each count involving rape or attempted
rape to Imprisonment for Public Protection with a minimum term of 7 years, less 39 days spent on remand; and on each
of the other counts he was sentenced to 3 years imprisonment, concurrent.

149. On 3 August 2012, the full court refused a renewed application by the appellant for leave to appeal against that
sentence. He now appeals against conviction, following a much later application, with leave of the single judge, who
also granted the necessary extension of time.

(b) Ground of Appeal

150. The single ground of appeal complains that the judge failed to give the credibility limb of the good character
direction, despite indicating during discussions with counsel that he intended to give such a direction. We note that, to
the extent that this was a simple omission, no-one pointed it out to the judge either at the time of the summing up or
immediately thereafter. Indeed the point was not first raised until over two years after the trial had concluded.

(c) Appellant's Detailed Submissions

151. Again, Mr Blaxland advanced the argument that, because the bad character evidence was not adduced by the
Crown, the defendant was entitled to a good character direction. This would have involved the judge reminding the jury
of the appellant's previous conviction and then going on to direct them that, because of the age of the conviction, they
should treat the defendant as a man of good character and should take that into account in his favour when considering
whether he was to be believed.

152. In so far as the respondent sought to uphold the conviction by reference to the strength of the case against the
appellant, Mr Blaxland invited the court to bear in mind that this was a familiar case of one person's word against
another. The appellant was acquitted of two counts, so the jury plainly had some doubt about the reliability of the
complainant. He relied on what he called 'an abundance of authority' to the effect that, even in a strong evidential case,
a significant misdirection in relation to good character will result in the conviction being quashed.

(d) Respondent's Detailed Submissions

153. Mr Whittam conceded that, when the judge referred to his giving a "standard direction" he was referring to a
standard good character direction. However, the appellant had a previous conviction for a single offence of dishonesty,
so he was not a man of good character and he did not merit such a description. Thus, despite the omission, Mr Whittam