Factual and Procedural Background
The Appellant, a counsellor, met a woman ("CM") in 2018, who had a 5-year-old daughter ("C"), the complainant. Between April and June 2020, C disclosed to her paternal grandmother and mother that the Appellant had sexually assaulted her. The police were informed on 17 June 2020, and the Appellant was arrested on 30 June 2020. Examination of his electronic devices revealed indecent photographs of C, forming part of the charges. C was video interviewed on 12 July 2020, and her statements were used as evidence at trial.
The Appellant was convicted on 5 December 2024 of multiple offences including assault by penetration, sexual assault of a child, causing a child to engage in sexual activity, and making indecent photographs of a child. The convictions related to offences under the Sexual Offences Act 2003 and the Protection of Children Act 1978. The Appellant had not yet been sentenced.
The Appellant sought leave to appeal his convictions, which was referred to the Full Court. The appeal concerned a judicial error in the jury directions on three specimen counts. The judge incorrectly directed the jury that to convict, they needed to be sure the offences occurred on "at least one occasion" rather than "at least five occasions" as charged. This misdirection was discovered post-conviction but prior to sentencing.
Legal Issues Presented
- Whether the judge's misdirection to the jury regarding the number of occasions on which the offences were alleged to have occurred rendered the convictions unsafe.
- Whether the misdirection affected the safety of the convictions on the specimen counts and those counts related to specific offences.
- How the appellate court should treat the convictions in light of the misdirection and the evidence presented.
Arguments of the Parties
Appellant's Arguments
- The misdirection by the judge to the jury created a "lurking doubt" about the safety of all convictions.
- The jury was incorrectly told to be sure of offending on "at least one occasion" instead of "at least five occasions," which could have made it more difficult for the jury to convict if correctly directed.
- The greater number of alleged incidents increased the likelihood of the offences being witnessed, thus the jury might have found it harder to be sure of guilt if properly instructed.
- The verdicts on the specimen counts may have influenced the verdicts on other counts, thus potentially tainting the entire conviction.
- The framing of the indictment affected the defence strategy, as the Appellant would have challenged the complainant's motivation more vigorously if the counts were specific rather than specimen counts.
Prosecution's Arguments
- The evidence of frequency of offending was strong and the jury’s verdicts indicate they were satisfied the offences occurred on at least one occasion.
- The judge’s error in direction did not render the convictions unsafe.
- The error in the summing-up was to the benefit of the Appellant at sentencing, as it reduced the number of occasions the offences were found to have occurred.
- The convictions on specific counts indicate the jury rejected the Appellant’s evidence entirely.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Hobson [2013] EWCA Crim 819 |
Distinction between specimen counts involving multiple occasions versus specific incidents; requirement for jury direction on whether offences must be found to have occurred on the same occasion. |
The court distinguished the present case from Hobson, noting that the multiple-count allegations here were not anchored to specific occasions or locations, making the judge's direction appropriate in context. |
Court's Reasoning and Analysis
The court acknowledged the statutory restrictions protecting the victim’s identity and proceeded carefully with anonymization. The core issue was the judge’s misdirection regarding the number of occasions the offences had to be proven for conviction on the specimen counts. The court examined the nature of specimen counts and the jury directions given.
The court referred to the precedent in R v Hobson, which clarified when jury directions must require certainty that offences occurred on the same occasion. It concluded that in cases where a complainant alleges a pattern of conduct without particularising specific incidents, it is proper for the jury to be directed that they may convict if sure the offence occurred at least once, without needing to be sure it was the same occasion.
The court rejected the Appellant’s argument that the misdirection created a lurking doubt, finding no reason to doubt the integrity of the jury’s verdicts. The evidence was sufficient to satisfy the jury beyond reasonable doubt that the offences occurred at least once. The court noted that the Appellant’s failure to challenge the judge’s draft directions earlier also diminished the weight of the alleged error.
Sentencing must proceed on the basis that the offences occurred on one occasion each, not on multiple occasions as originally charged. The court found no basis to overturn the convictions but recognized the impact of the misdirection on sentencing.
Holding and Implications
The court REJECTED the application for permission to appeal the convictions.
The case was remitted to the trial judge for sentencing on the basis that the convictions on the specimen counts relate to one occasion of offending, rather than multiple occasions as originally charged. This decision does not set new precedent but clarifies the application of jury directions in cases involving specimen counts with allegations of multiple occasions. The direct effect is that the Appellant’s convictions stand, but sentencing will reflect the corrected understanding of the number of occasions proven.