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Potential Grounds of Appeal
Fresh Evidence: This has to be evidence that was not available before the trial. There are few exceptions to this rule. One such exception is the Mr Kaz Appeal where evidence that was available and known to trial counsel was not used.
Such “fresh” evidence should go to the heart of the allegations and not just narrow the window of opportunity. For instance, a person who may have lodged in the same house and who has now come forward to say that they were in the house most of the time and didn’t notice anything, would not be enough.
Misdirections and missed directions by the Judge in Summing Up the evidence and directing the jury during the course of the trial and in the JSU.
Lack of or inadequate direction relating to “Character”
Some defendants have previous convictions that are completely irrelevant to sex offences. If those convictions are put to the jury then (although it is not incumbent on the judge to direct the jury on the matter) then there is usually what is known as a “modified good character direction”.
In the last few years or so, it has become more and more difficult for this particular ground of appeal to succeed, however, it did in a recent case that I was very heavily involved with, which resulted in quashed convictions in October 2015. We were ordered a retrial and at present the judgement from that appeal is not available. It will be posted on this site when it becomes so.
Where ‘Bad Character’ was put to jury where there were no convictions + Judge’s Dirs
R v Gurpal Singh 4th November 2016
Before thinking this applies to any of your cases, please do read it EVERY carefully. To use this case for an appeal, it would have to be basically “on all fours” with it, and not just “similar”.
An example of a legal argument relating to “Character” and “Delay”
The “Redscouse Appeal”
The defendant had stood trial in 2014 facing allegations of sexual misconduct going back 40+ years. His previous unrelated and irrelevant convictions were put to the jury, and there was no direction whatsoever from the trial judge.
At the appeal the lack of any form of a modified Good Character Direction formed part of the grounds in that case. In fact it transpired that usually where there is legal discussion or argument just before the JSU (Judge’s Summing Up) in that case, neither defence nor prosecution counsel realised that there was no intention by the judge to not direct the jury in relation to this.
Another Ground of Appeal in historic cases that is sometimes neglected is a full direction relating to “Delay”, and although judges will often remind the jury of the difficulties complainants may have in “remembering” it is often the case that the direction for the defence case is sadly lacking.
The issue of “Delay” can affect various parts of the evidence:
- How long it took for the complainant to make the allegations after the alleged offences are supposed to have been committed
- Why it took so long (as in the above case) to report to the police and/or others
- Evidence can go missing or is destroyed – such as work / employment records; housing records; material witnesses who may have died since the alleged assaults
- Memories fade with the passing of time…… etc
In the same case as outlined briefly above, the judge failed to give a full and comprehensive direction relating to Delay and the Burden of Proof. Further, neither Defence nor prosecuting Counsel brought the subject up in the legal discussions / arguments prior to the JSU.
Extract from the Skeleton Argument ~ “Redscouse” Appeal: – with identifying parts removed:
Identifying pieces removed …………………………………….………………………………………………………
Recent / First Complaint / Hearsay Evidence
In R v CP  EWCA Crim 2749, a case that also had no other independent support for the allegations, it was said:
‘The only evidence of rape was the complainant’s word and as she made her complaint to others near to the time of the alleged rape, the Judge should have said: “The jury must be reminded that a complaint cannot provide independent support because the source remains the witness.”
(This is confirmed in the “Crown Court Benchbook: Directing the Jury 2010”.) Instead, he said “I remind you that there is no forensic evidence of any sort, but there is further evidence of what she said to people soon after the event.” …
Having anxiously considered the case as a whole we think that had a proper direction been given it may be that the jury would still have convicted, but we find ourselves wholly unable to conclude that the jury must have convicted.
Accordingly, on the facts of this case, we are driven to conclude that the absence of a proper direction as to recent complaint, a direction emphasizing that the evidence was not independent of the complainant herself, renders this conviction unsafe.’
In R v A  EWCA Crim 1517, it was stated:
‘The judge had made it clear that the primary task of the jury was to decide whether V or X was telling the truth. That was a clear direction to the jury regarding the importance of V’s evidence and was not diluted by any reference to supporting evidence.
It had to have been obvious that V’s own evidence of complaints, whether in the witness box or made to another person, was not evidence independent of her. The risk to be guarded against was that the jury might think, wrongly, that evidence from a witness to whom complaints had been made was independent evidence of the events described by the complainant. It was not.
Its relevance was to assist the jury in their assessment of whether the complainant’s evidence was credible and reliable. If no complaint had been made for a substantial time after the events complained of that might cause a jury, depending on how they regarded it, to doubt the truthfulness of the complainant’s account of events.
A timely and cogent complaint might assist the jury in concluding that her account was accurate. It all depended on the circumstances and how the jury regarded them. The degree of similarity between what V initially said happened and what she later said had happened might assist in assessing her reliability.
Under the Criminal Justice Act 2003 s.120, the complaint was evidence of what had happened between V and X; it was not evidence independent of V. In the instant case, there had been no specific direction to that effect.
The jury’s assessment of the complaints and the circumstances in which they were made had to have played a significant part in their deliberations, and the direction recommended by Laws L.J. in R. v AA [20077 EWCA Crim 1779 should have been given and should routinely be given …
There might be cases where failure to give it was fatal to the conviction. However, in the circumstances of the instant case and on the basis of the directions given, there was not a real risk that the jury were under the impression that J and S’s evidence was independent evidence of what had happened.
The jury had been sufficiently directed as to the relevance and significance of the complaints and had to have understood that the issue to which the complaints were relevant was the truthfulness and reliability of V and did not go beyond that. There was no doubt regarding the safety of the verdicts’
Therefore, the fact that such a direction is missing is not necessarily indisputable grounds for appeal, but this omission it should certainly be investigated further
Burden & Standard of Proof:
Lies (of the defendant):
Directions to the jury in relation to who they can (and cannot) discuss evidence with when leaving the courtroom before and after JSU:
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