Sharp, R v

Where unexpected evidence introduced during a criminal trial may suggest a defendant’s propensity, the court must safeguard fairness. The defendant must have a fair opportunity to meet the new issue, and the jury should be directed both as to the difficulty caused to the defence and that any apparent habit does not prove guilt.

A failure to direct a jury on a defendant’s omission in police interview under section 34 may be erroneous, but will not necessarily make a conviction unsafe where the circumstances substantially reduce its significance.

The appellant was convicted at a retrial in the Durham Crown Court of four historic counts of indecent assault and was sentenced to two years’ imprisonment.

A witness, called to prove the complainant’s earlier complaint, was asked by the judge how the appellant had appeared when she attended his premises. Her answer that he was naked introduced evidence similar to allegations made by the complainant. The jury later asked for confirmation of that answer. The appellant contended that the judge’s question and the absence of an adequate direction made the convictions unsafe. He also relied on the absence of a direction concerning his failure in police interview to mention a medical condition.

The court had to decide whether the convictions were safe and, if not, whether the Crown should have a third trial.

1. Appeal against conviction allowed. The judge’s unexpected question elicited evidence which placed the defence in serious difficulty. The witness’s answer introduced a new and potentially prejudicial dimension bearing on whether the appellant had a habit or propensity to answer the door naked.

2. The defence had prepared and cross-examined on the basis that the jury would hear only the complainant’s allegations. Recalling the witness to pursue collusion would have contradicted that approach and was liable to open up her own unprosecuted allegation of abuse. The appellant had not received the notice or prior opportunity for submissions which would have been available had the Crown sought to adduce the material.

3. The summing-up gave the jury no guidance on the unexpected evidence, although the prosecution relied on it in closing. The jury should have been told of the difficulty its emergence caused the defence and that, even if they found a habit or propensity to answer the door naked, it did not prove guilt. No elaborate Lucas direction was required. Taken together, the first two grounds made the verdicts unsafe.

4. The judge should also have directed the jury under section 34 of the Criminal Justice and Public Order Act 1994 on the appellant’s failure in interview to mention his medical condition. That omission alone would not have justified allowing the appeal because the interview had involved confusion.

5. The Crown’s application for a further retrial was refused. The age of the allegations, the prospect of a third trial, and the appellant’s age and health outweighed the public interest in a further trial. The appeal against sentence therefore did not require determination.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, found the verdicts unsafe, and declined the Crown’s application for a third trial.

• Durham Crown Court: At a retrial, convicted the appellant on four counts of indecent assault and imposed a total sentence of two years’ imprisonment.