Vyas, R. v

A defective summing-up does not necessarily make a conviction unsafe. The appellate court must assess the defect in the context of the trial as a whole, including whether the material omitted from the summing-up was fully explored before the jury and remained fresh in its mind. Where the evidence on the live issue is overwhelming, and the omitted matters concern inconsistencies that do not undermine that issue, the conviction may remain safe.

The appellant was convicted by a majority at Southwark Crown Court of sexual assault and sentenced to 18 months’ imprisonment. His defence was consent.

He appealed on the ground that the judge’s summing-up was unfair and unbalanced because it failed to remind the jury of significant points made in cross-examination of the complainant. The central issue was whether the acknowledged defects in the summing-up rendered the conviction unsafe.

1. Appeal dismissed. The court accepted that the summing-up was defective, indeed very defective. The judge should have reminded the jury of the significant points raised in cross-examination of the complainant that could bear on the reliability of her evidence.

2. The omission was not cured merely because the judge also failed to review the cross-examination of the appellant. The judge also initially omitted a direction on the burden and standard of proof, although that omission was subsequently remedied.

3. The decisive appellate question was whether the conviction was unsafe. The inconsistencies relied upon by the defence had been fully put to the complainant in cross-examination and would also have been addressed in counsel’s speech. The evidence and speeches were recent, so the points would have remained fresh in the jury’s mind.

4. The evidence on consent was overwhelming. The complainant’s conduct after leaving the train, including her immediate attempt to report the matter to the police and her distress, strongly contradicted the appellant’s account of a consensual sexual encounter. Her imperfect recollection of details was unsurprising given that she had been drinking, was tired, and was distressed.

5. The inconsistencies did not undermine the sole live issue, namely consent. The conviction was safe notwithstanding the defective summing-up.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction, holding that the conviction remained safe despite defects in the summing-up.

• Southwark Crown Court: the appellant was convicted by a majority of sexual assault and sentenced to 18 months’ imprisonment.