Page 443 - Magistrates Conference 2019

Page 35

contact or from another surface such as a bed. In addition, swabs taken from the appellant's penis and from inside his
boxer shorts showed his DNA profile mixed with the profile of at least three other people. It was not possible to
ascertain whether the complainant had contributed to those profiles because of the complexity of the samples.

159. The appellant was tried by Her Honour Judge Lees and a jury at Snaresbrook Crown Court in
October-November 2013. The prosecution case was that the man seen on top of the complainant was the appellant. The
complainant was unconscious and so could not have consented to sex, and neither could the appellant have reasonably
believed that she was consenting. His account in evidence was different from his account in his police interview.

160. The defence case was that he was not the man on top of the complainant. He did not enter the room that the
complainant was sleeping in and he did not get on top of her. He said that he did not mention certain facts in his
interview because he was only allowed to answer the questions he was asked.

161. The appellant had the following previous convictions: a conviction for drink driving in 2009 for which he was
disqualified from driving and two convictions for driving while disqualified and without insurance in 2010. These
previous convictions were admitted by agreement between the parties so that a good character direction could be given
without misleading the jury.

162. The judge directed the jury in these terms:

"Joseph Saruwu, who is now 24 years old, 22 at the time of this, has told you that he has criminal convictions recorded
against him ...While that means he is not a man who criminal lawyers would call a person of good character because
that would be someone without convictions, he does not have any convictions of a sexual nature and those he does have
are quite different from anything of a sexual nature. The fact the defendant does not have any similar criminal
convictions in his past may make it less likely that he acted as is now alleged against him. That is one thing for you to
bear in mind. He also, it is agreed, pleaded guilty to all of his previous matters and, as you know, none of them
involved offences of dishonesty either. In those circumstances you, I am sure, will agree that the convictions could not
assist you with whether he has told the truth on this occasion or not and so do not be tempted to use them against him
for that purpose. However, as I say, the judgment as to what weight should be given to the fact he has no previous
relevant convictions and the extent to which that assists you on the facts of this particular case are for you to make. In
making that assessment you are entitled to take into account everything you heard about him." [pages13E -14F of the
transcript of the summing up]

163. On 6 November 2013 the appellant was convicted, by a majority of 10:2, of attempted rape (count 2). On 14
November 2013 he was sentenced to 5 years' imprisonment. He appeals against that conviction with leave of the single
judge.

(b) Ground of Appeal

164. The appellant complains that the good character direction was defective in that there was no positive direction in
respect of credibility. No issue arises as to the propensity limb of the direction given by the judge.

165. The automatic entitlement to a modified good character direction was again urged upon us. Mr Blaxland argued
that the question for the court was not whether the judge was right to treat the appellant as a man of effective good