Page 446 - Magistrates Conference 2019

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appellant. That was the view that the judge formed and he informed defence counsel of that fact. Mr Whittam
submitted that the direction that the appellant was given was to his advantage, simply referring to "a number of previous
convictions for crimes of dishonesty". Further, he relied on the appellant's admission in his police interview that, when
the victim was 14 years of age, he had asked if he could have sexual intercourse with her. This was plainly an
admission of reprehensible conduct within the meaning of the CJA. The appellant was not entitled to a positive
propensity direction. The direction that he was actually given was fairly balanced.

(c) Analysis and Conclusions

186. We accept the respondent's submissions. The appellant was a man with a lengthy criminal record. It offends
against commonsense to suggest that he was entitled to a positive credibility direction in his favour. Moreover, as to
propensity, the judge was careful to point out (just as in the case of Saruwu) that the appellant had no previous
convictions for sexual matters. Given the scale and nature of the appellant's offending, we conclude that this was the
most this appellant could have expected, particularly in the light of his approach to the complainant when she was 14.

187. Furthermore, we are bound to note that the direction that the judge gave was precisely that which it was agreed
he would give, following discussion with experienced counsel representing the appellant at trial. The direction which it
is now said that he should have provided in respect of the incident when the complainant was 14 (paragraph 181 above)
was never suggested to him; instead, that was what the appellant's counsel said she would say in her speech, a course
that the judge agreed. There was no requirement for the judge to give any such direction.

188. For all those reasons, we conclude that there is no basis for the first ground of appeal.

Ground 2: 'Instinct'

(a) Appellant's detailed submissions

189. The second ground of appeal complains of the judge's observation towards the beginning of what was a short
summing-up that in assessing the credibility of the witnesses the jury should use their 'gut instinct'. The appellant
maintains that, not only did the judge direct the jury to decide the case on instinct, but he completely failed to give any
direction about the need to approach the case without emotion. Mr Blaxland described the failure to give such a
direction in a case involving allegations which were likely to provoke hostility towards the appellant as a serious
omission. The judge failed to provide the appellant with a sufficient safeguard against the danger of wrongful
conviction.

190. The fact that the appellant was acquitted of the more serious offences indicates that the jury had some doubt
about the reliability of the evidence of the complainant. His conviction was by a majority. This suggests, it was said, a
measure of doubt as to the reliability of the complainant. This was a finely balanced case. The court cannot, therefore,
be confident that the jury would necessarily have convicted had they been correctly directed in the summing-up.

(b) Respondent's detailed submissions

191. Mr Whittam invited our attention to the summing-up as a whole. The learned judge directed the jury clearly on
the burden and standard of proof and on their function. He made it clear to the jury in relation to counts 1 - 4 that