Page 445 - Magistrates Conference 2019

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180. On 2 July 2012 the appellant was convicted (by a majority of 10 to 2) of four counts of gross indecency with a
child under sixteen years old, contrary to s.1 (1) Indecency with Children Act 1960. He was acquitted of three counts of
rape. On 2 July 2012, he was sentenced to a total of 42 months imprisonment. He appeals against conviction with
leave of the single judge.

(b) Grounds of Appeal

181. There are two grounds of appeal. The first is that the judge erred in failing to give the appellant the benefit of an
effective good character direction. The complaint is that, although the judge's direction was in accordance with the
discussion with counsel, it ought to have been put in positive terms, both in respect of propensity and credibility.

182. The second ground of appeal is that, during his summing up, the judge said to the jury that they should "use your
instinct" and later, when talking about the impression made on the jury by the witnesses, he emphasised that "you are
perfectly entitled to take your gut instinct into account and you should act upon it." The complaint is that there was a
real risk that the jury convicted the appellant not on a dispassionate and comprehensive assessment of all the evidence,
but on an instinctive reaction to, or distrust of, the appellant. We note that this second ground of appeal was not
something on which the single judge expressed a view.

Ground 1: Good Character Direction

(a) Appellant's detailed submissions

183. Again it was said that, the judge having concluded that the previous convictions were irrelevant and the
prosecution having made no application to rely upon them in respect of credibility, the appellant was entitled to a full
Vye direction. So far as the propensity direction was concerned, the accepted fact that the appellant had asked the
complainant for sex when she was aged 14 was part of the factual allegation against him, and he should have had the
benefit of a modified propensity direction along the following lines: 'You know that the defendant has admitted that he
asked C for sex when she was fourteen years old. You will have to decide what relevance that has to the charges, which
he faces. On the other hand there is no evidence that he has ever in the past committed offences of a sexual nature. You
should take this into account in his favour as, it may make it less likely that he acted as is now alleged against him. It is
for you to judge what weight you give to this."

184. Instead, Mr Blaxland argued that the direction given in relation to propensity involved reminding the jury that
the defence had introduced the criminal convictions in order to show that the appellant had no convictions for sexual
matters and then commenting: "Obviously if he were somebody with a long record for convictions against young girls,
then that is something you would want to take into account. But that is not the position here. And so his previous
convictions play no part in your decision making in this case." He said that, in putting it that way round, the judge
failed to give a positive propensity direction.

(b) Respondent's detailed submissions

185. Mr Whittam submitted that, such was the nature, scope and extent of the appellant's previous convictions, it was
an affront to common sense to call him a man of good character. Any detailed direction would have had to have
addressed the sheer number of convictions for dishonesty so that, however phrased, it would not have assisted the