Sathinesh Padman v Regina

A conviction is not unsafe merely because an indictment was initially insufficiently particularised. The decisive question is whether, by the time of deliberation, the jury and the defence knew the specific conduct alleged on each count.

Where evidence could relate a count to more than one alleged occasion, a same-occasion direction is required only if there is a realistic possibility that reasonable jurors could convict while being sure of different incidents. Evidence of an uncharged offence admitted without a direction does not itself render a conviction unsafe where the charged allegation was clear and distinctive and there was no real risk of improper use.

The appellant was convicted at the Crown Court at Woolwich of indecent assault contrary to section 14 of the Sexual Offences Act 1956. The count concerned digital penetration of X, who was about five years old at the time. He was acquitted of a separate count alleging penile penetration of her mouth.

He appealed against conviction with leave of the single judge. He contended that the indictment and summing up failed to identify the particular incident charged in count 1. Since the evidence described another uncharged incident of digital penetration, the jury might have convicted without being sure of the same occasion. The central issue was whether that possibility, or the absence of a direction on the use of the third incident, made the conviction unsafe.

1. Appeal dismissed. Although the original particulars on the indictment were inadequate, the defect did not render the conviction unsafe. By the time the jury considered its verdicts, the trial had made clear that count 1 concerned the newspaper photograph and chair incident involving digital penetration, while count 2 concerned the dummy incident involving penile penetration of X’s mouth.

2. The judge and the prosecution had repeatedly distinguished the counts and required separate consideration. The jury could therefore have been in no doubt about the sexual activity alleged in each count. The acquittal on count 2 was consistent with that conclusion.

3. The court applied R v Hobson [2013] Cr.App.R. 27. A same-occasion direction is necessary where there is a realistic possibility that a reasonable jury could convict a specimen or insufficiently particularised count by relying on different alleged occasions. On the evidence and presentation of this trial, there was no such realistic possibility. The chair incident had throughout been identified as count 1; the incident involving X’s brother in another room was treated as a separate, uncharged third incident.

4. The third incident was evidence of another alleged offence against the same complainant and was therefore bad-character evidence. Its status and permitted use should have been addressed at trial. Nevertheless, the absence of a direction did not undermine safety. The account supporting count 1 was clear and distinctive, so there was no real risk that the jury used the third incident as a substitute basis for conviction or convicted on it alone.

5. X’s evidence on count 1 was clear and compelling and was supported by evidence of complaint. The conviction was safe.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction in [2022] EWCA Crim 690.
• Crown Court at Woolwich: On 1 September 2021, convicted the appellant by a 10–2 majority of indecent assault on count 1 and acquitted him on count 2. On 24 September 2021, sentenced him to four and a half years’ imprisonment.