Page 441 - Magistrates Conference 2019

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submitted that the conviction was not unsafe. In particular, he said, the unusual description provided by the victim of
the repeated nature of the offending was corroborated by the appellant's description of his own sexual activities with his
wife. In addition there was no realistic motive or reason for the victim to make up her allegations.

(e) Analysis and Conclusions

154. The first point to note is that the judge promised to give, and did give, a full and positive good character
direction on propensity. Thus the only point on appeal concerns the credibility limb of the direction.

155. We accept that the judge intended to give a positive direction on this aspect too. His failure to do so was a
simple omission, albeit one that was not regarded as particularly important at the time, because the matter was not
raised with him by either side. More importantly, in our view, for the same reasons as set out in the conclusions of the
appeals of Walker and Johnstone, the appellant was not entitled to a positive good character direction. He had a
conviction for an offence of dishonesty, so it would have been inappropriate for the judge to say that he was effectively
a man of good character and that this reinforced his credibility. Instead, the direction that the judge did give made it
plain that the appellant only had one conviction and that this was not for a sexual offence. We also note that the
direction itself expressly referred to (and assumed) that the defendant was effectively a man of good character, because
the concluding sentence of this part of the summing-up stated that "good character cannot of course amount to a defence
to the charges which the defendant now faces".

156. Furthermore, to the extent that the failure to refer expressly to credibility was an omission by the judge, we do
not consider that this renders the conviction unsafe. There is no doubt that one of the telling elements of the evidence in
this case was that, on the appellant's own admission, he only ejaculated if he masturbated himself or his wife
masturbated him. All of the sexual offences for which he was convicted involved ejaculation through masturbation. In
our view, looked at in the round, the appellant's conviction was safe. Hunter's appeal against conviction is therefore
dismissed.

SARUWU

(a) Facts

157. The appellant, who is now 25 and his friend Conrad Makova went to a club on the night of 24 October 2011.
The two of them met up with the complainant and her friend Charmaine Merchant. In the early hours they left together
and returned to the appellant's flat. The appellant's brother, Mark, Mark's friend DJ Sparks and the appellant's friend,
Farhad Zeewa, were also at the flat. The complainant had had too much to drink and went to lie down in the appellant's
bedroom. At around 5am Ms Merchant went into the bedroom and saw a man on top of the complainant, naked from the
waist down. The complainant was asleep or unconscious. Ms Merchant and Mr Makova managed to get the
complainant outside and into a car. A neighbour heard commotion and arguing outside and called the police. The
appellant was arrested. In interview he denied the allegations and lied about his child being in the bedroom.

158. A sample of the complainant's urine was analysed. The levels of alcohol indicated intoxication in a normal,
social drinker that would have caused symptoms such as slurred speech, drowsiness, dizziness and nausea. Vaginal
swabs and swabs from her thighs showed no semen in the vagina or on her body. DNA samples taken from her
knickers showed a mixed DNA profile of the complainant's and the appellant's DNA, which were both major
contributors to the profile. The DNA of at least one other person was found. DNA could be transferred through sexual