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Appeal partly upheld due to tainted counts pleaded on an alternative basis

By: Bakshi Mohit BL

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Court of Appeal rejects appeal against indecent assault conviction, on the grounds that: (a) procedural errors identified do not undermine the overall fairness of the trial; (b) there was no connection between sympathy and delay; and (c) the fact that a number of counts were purported alternatives does not give rise to any question of perversity; and the court partly upholds Ground 1 in respect of the tainted counts pleaded on an alternative basis, on the ground that, as a matter of legal principle, each count must be considered separately, and solid freestanding evidence exists in respect of each of those remaining offences.

Criminal Law – appellant convicted of seven counts of indecent assault – complainants were children at the time of the offences – offences to have occurred between 1985 and 1989 – 4 counts related to M.B. – 3 counts related to S.B. – both complainants are brothers – appellant was the boyfriend of the complainant’s aunt – issue arising on appeal include a number of amendments to the indictment and its state when the case went to the jury – a number of the offences charged on the fourth indictment were subject of so-called “alternative counts” – whether the trial judge erred in permitting the amendment to the Indictment so as to allow alternative counts relating to the same alleged offence but over 3 successive years – whether the trial judge erred in permitting substantial and repeated amendments over the course of the course of the trial, depriving the accused of procedural fairness – whether the trial judge erred in refusing to accede to an application pursuant to DPP v. PO’C – whether the trial judge erred in refusing to hear a renewed application on the above ground after the final amendment of the Indictment – whether the trial judge erred in failing to direct an acquittal on all remaining counts on the Indictment – whether the trial judge erred in failing to direct an acquittal on the counts concerning the game of Subbuteo – whether the trial judge erred in making a comment, in addition to the jury warning about the risks of delay, to the effect that it would be impossible not to have sympathy for the complainants – whether the verdict of the jury was perverse or alternatively so logically inconsistent that it should not be permitted to stand - The premise upon which the alternative counts were left to the jury was that if the jury could not be sure of the guilt of the accused in respect of one offence on a particular count they might be so satisfied, and convict, of that same offence on another count; in other words, the same offence was charged more than once on the same indictment because of the uncertainty in the evidence - If and insofar as any count and in particular any conviction is tainted by this type of error, it is bad and cannot stand - As a matter of legal principle each count must be considered separately, and solid freestanding evidence exists in respect of each of those remaining offences - procedural errors identified do not undermine the overall fairness of the trial – no connection between sympathy and delay – the fact that a number of counts were purported alternatives does not give rise to any question of perversity – appeal dismissed on all grounds except for ground 1 which is partly upheld.

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