England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
HIS HONOUR JUDGE BOULTON
T20087223

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/01/2010

The Hon. Mr. Justice Saunders:

1. On 4^th September 2008 at Liverpool Crown Court the Applicant was convicted by a Jury of one offence of sexual activity with a child, and on 26^th September 2008 he was sentenced by the trial Judge, His Honour Judge Boulton, to 2 years imprisonment.
2. His applications for an extension of time in which to appeal of 7 months 29 days and leave to appeal have been refused by the single Judge. The explanation for the delay is that, after advice from trial Counsel, he instructed fresh Solicitors and they have experienced delays in obtaining the necessary papers. We will consider the merits of the application for leave to appeal conviction before deciding whether to extend the time.
3. As well as convicting the Applicant on one count on the indictment, the Jury acquitted the Applicant on all other counts; all of which alleged sexual offences of various kinds with the same Complainant. The distinction between the evidence on the count on which the Applicant was convicted and those on which he was acquitted was that there was a witness who was present when the offence, which resulted in a conviction, was said to have taken place who provided support for parts of what the Complainant had to say.
4. The allegation of which the Applicant was convicted was that he took a 15 year old girl and her 16 year old boyfriend up to a bedroom in his house. The Applicant pushed her onto the bed; lifted up her skirt and slapped her a number of times on the bottom. He also tried to place the boyfriend's hand on her bottom. He asked her boyfriend whether she could give him a blow job and whether he could shag her. The girl said that she managed to push the Applicant off and then all three set off downstairs. According to the girl, as they went downstairs the Applicant pulled her back so that she sat on him and she was able to feel his erect penis. The girl's account in relation to this incident was supported by her boyfriend as to what happened in the bedroom. He was unable, he said, to see whether anything happened on the stairs because he went down first. The Applicant's case in relation to this allegation, as with all the others made by the girl, was that it never happened.
5. In the original advice on appeal, the new Solicitors instructed by the Applicant raised a number of matters which they said rendered the guilty verdict unsafe. In front of us Mr. Baker (of Counsel) sensibly did not pursue those which had no prospect of success, but concentrated on two grounds, one of which he advanced on a different basis than it had hitherto been put forward. It is right to say that at the trial no complaint had been raised in relation to any of the matters now complained of.
6. Good character direction. The Applicant had no convictions and the Judge gave the Jury a good character direction. He said this: 'You have heard that the Defendant is a man of good character, i.e. he has no previous convictions. You may use this fact in two ways. Firstly, it goes to his credit as a witness. That is, whether or not you believe him as a witness. Secondly, you may use this fact to consider the likelihood of his having acted in the way alleged in this case. In other words, he has got to the age of 37 without any previous convictions and nobody has ever criminally suggested that he has done anything like this before. That is a factor you take into account; no more no less. Everybody starts off with a good character, but if you come to Court charged with a criminal offence, you are entitled to say, "This is something you should take into account when you consider my evidence, that I am of previous good character."'

Complaint is made that this direction does not accord with the JSB specimen direction. The principal distinction is that the specimen says that the Jury 'should' take his character into account in the two ways, whereas the Judge's direction says that they 'may'. In our judgment there is nothing wrong in the direction given by the Judge at all. The specimen direction is not a mantra that has to be repeated word for word. This direction deals perfectly properly with both limbs of the direction and, read as a whole, does correctly direct the Jury. Mr. Baker has rightly pointed out that credibility was at the heart of this case and therefore the good character direction was especially important. We agree, but in our judgment, the criticism of the direction given is misconceived.

7. The second complaint which was pursued before us relates to the form of the count on the indictment of which the Applicant was convicted. It is submitted that the allegations about what happened in the bedroom and what happened on the stairs after leaving the bedroom could not properly be included in the same count. In our judgment there is nothing in that complaint whatsoever. The Judge was perfectly entitled to regard the whole incident as one course of conduct and therefore properly included in one count. Mr. Baker, in effect, accepted that this was so, but instead, argued the matter in an alternative way which did not appear in either the grounds of appeal or the advice on appeal and had not been raised with the trial Judge. When dealing with this count the Judge had set out the various matters relied on and then told the Jury that they would not have to be satisfied of all of them; if they were satisfied that he had been guilty of any sexual activity with the Complainant on this occasion that would suffice.
8. Mr. Baker argued that this brought the case within the principle in R -v- Brown 79 Cr. App. R. 115 that the Jury would need to be directed that they must all agree on one of the different allegations which made up the course of conduct alleged in this count before they could convict. While the argument is ingenious, we are satisfied that it has no prospect of succeeding before the full Court. It should be remembered that this Court has held on a number of occasions that the need for a Brown type direction will seldom occur and will not occur when what is alleged is a course of conduct as was alleged here. See for example R -v- Young 97 Cr. App. R. 280 and R -v- Warwick [1995] 1 Cr. App. R. 492. It is necessary only in those cases where two or more different ways of committing the same offence are alleged in the same count.

It, of course, has to be borne in mind that the need for or desirability of such a direction never occurred to either the Judge or Counsel at trial.

Even if we were wrong about that, there can be little doubt in this case that the Jury convicted on this count because of the support for the Complainant's evidence about that provided by the boyfriend's evidence. When there was no evidence beyond the Complainant the Jury returned not guilty verdicts; where there was support they convicted. It is in our view clear that they found the Applicant guilty on the basis of those allegations witnessed by the boyfriend. In those circumstances in our judgment, the verdicts are safe and any appeal would be bound to fail. Accordingly both applications are refused.