BDZ v R.

Factual and Procedural Background

On 07 June 2023 at The Crown Court in The City (Judge Mathieson) the Appellant (then aged 52) was convicted by a jury (majority 10–2) of 11 counts of sexual offending concerning his stepdaughter (referred to in the trial as The Victim). The Appellant seeks leave to appeal conviction and sentence and applied for long extensions of time (286 days late for conviction grounds; 301 days late for sentence grounds). A single judge referred one ground of appeal against conviction (as advanced in two ways) to the full court and refused leave on other grounds not renewed. Attorney Nutter was instructed after the single judge's referral and refined grounds originally settled by the Appellant in person. The single judge also referred the question of leave to appeal against sentence because the total sentence (a required special custodial sentence of 13 years under section 278 Sentencing Act 2020) might depend on the outcome of the conviction appeal.

Legal Issues Presented

1. Whether the convictions on Counts 6–11 are unsafe because the Victim's evidence was that all offending ceased before her 13th birthday, yet Counts 6–11 were laid as offences occurring when she was aged 13.
2. Contingent issue (if Ground 1 succeeds): whether prejudice from Counts 6–11 would have rendered convictions on Counts 1–5 unsafe because such allegations would never have been introduced in the trial of Counts 1–5.

Arguments of the Parties

Appellant's Arguments (Attorney Nutter)

• Ground 1: The convictions on Counts 6–11 are unsafe because the Victim's evidence clearly indicated all offending stopped before her 13th birthday, so there was no evidence supporting offences alleged to have occurred after that birthday.
• Ground 2 (contingent): The introduction of Counts 6–11 prejudiced the trial of Counts 1–5 and thus rendered those convictions unsafe in the circumstances.

Respondent's Arguments (Attorney Scholes / Prosecution)

• The prosecution served a Respondent's Notice suggesting the Victim's evidence about the timing (age) was not as clear as suggested by the Appellant; Attorney Scholes did not press that point in oral submissions before the court.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered the referred ground (Ground 1) first and granted an extension of time and leave to appeal on that point as raising an arguable issue. The court examined the indictment and the trial evidence: Counts 1–5 were charged as offences against a child under 13 (section 6(1) Sexual Offences Act 2003) and expressly required proof of the victim's age; Counts 6–11 were framed as offences where age 13 was alleged but age was not an element of the statutory offence charged (section 2 Sexual Offences Act 2003), such that the prosecution had to prove lack of consent and lack of reasonable belief in consent for those counts.

The court observed that at trial the defence contested that any offending occurred (denied offending) so timing was not specifically examined; the Victim's video evidence indicated offending ceased before her 13th birthday, but the indictment and prosecution speaking note treated a wider date span. The judge's directions required the jury to consider each count separately, and he correctly directed on age for Counts 1–5 but did not require proof of the Victim's age for Counts 6–11; he nevertheless directed the jury that the prosecution had to prove the offence occurred "between the dates alleged" and gave full directions on consent for Counts 6–11.

The court applied the authorities (Archbold, Wallwork, Aylett, Dossi) and Rule 10.1.1 to conclude that a date in an indictment is not material unless time is essential to the offence. Here the misstated dates in Counts 6–11 introduced an irrelevant issue (consent) to the jury where it did not in truth arise, but did not remove any relevant issue from the jury's consideration. The error thus did not produce any adverse consequence to the Appellant; leaving an irrelevant issue to the jury cannot be seen to render the convictions unsafe. The court emphasized the limited scope of this conclusion and noted that a different result might follow if a similar error affected Counts 1–5 or in other contexts (e.g., specimen counts or matters where frequency/timing are essential).

Holding and Implications

APPEAL DISMISSED

The court dismissed the appeal on the only arguable point (Ground 1) and refused leave to appeal against sentence. Direct consequences: the convictions on Counts 6–11 are upheld as safe; the contingent Ground 2 and the challenge to sentence (both contingent on success of Ground 1) therefore do not arise. The court noted the decision is limited in scope and does not purport to identify all situations where date errors may render a conviction unsafe; no new broader precedent beyond the case-specific conclusion was established.