R v Pascal Molliere

A prepared statement which amounts only to a general denial does not prevent a direction under section 34 of the Criminal Justice and Public Order Act 1994. Where a defendant later advances a detailed account containing facts which could reasonably have been mentioned in interview, the judge may leave an adverse inference to the jury, subject to a proper direction.

The bad-character gateway in section 101(1)(g) of the Criminal Justice Act may be engaged where a defendant attacks a complainant’s character by alleging scurrilous conduct or suggesting that the complainant is lying. Admission then remains subject to the trial judge’s statutory discretion and the fairness of the trial.

The applicant was convicted at Southwark Crown Court of three counts of sexual assault contrary to section 3 of the Sexual Offences Act 2003, arising from a 2010 photographic shoot. He was acquitted of an alternative count of assault by penetration and received a three-year sentence on the principal count.

After a single judge refused permission, he renewed his application for leave to appeal against conviction. He challenged a direction permitting adverse inferences from his no-comment police interview under section 34 of the Criminal Justice and Public Order Act 1994. He also challenged the admission of four previous convictions after evidence said to attack the complainant’s character.

The central issues were whether his trial evidence went materially beyond his prepared statement and whether the bad-character gateway, and the trial judge’s discretion to admit the evidence, had been properly applied.

1. The renewed application for leave to appeal against conviction was dismissed. The conviction was safe and the applicant had received a fair trial.

2. The trial judge was entitled to give a section 34 direction under the Criminal Justice and Public Order Act 1994. The applicant had received the central details of the allegation before interview. His prepared statement was superficial and substantially a bare denial. His trial evidence went materially further by giving a detailed account of the shoot, attributing responsibility to the complainant and contradicting her account. Those matters were more than amplification and could have been mentioned in interview. It was therefore proper to leave the jury to decide, on a suitable direction, whether to draw an adverse inference.

3. The judge was also entitled to admit the applicant’s previous convictions through section 101(1)(g) of the Criminal Justice Act. His evidence suggested both that the complainant created pornographic material and that she was lying about her conduct and aspirations. In context, those allegations were capable of lowering her in the jury’s eyes and amounted to an attack on her character.

4. Once that gateway was engaged, admission was a matter for the trial judge’s discretion, having regard to sections 101(3) and 101(4). There was no arguable error in its exercise. The convictions carried only modest significance in a strong prosecution case, and their admission had not, and might not have had, an adverse effect on trial fairness requiring exclusion.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against conviction was dismissed: [2023] EWCA Crim 228.
• Southwark Crown Court: The applicant was convicted of three counts of sexual assault, acquitted of an alternative count of assault by penetration, and sentenced on 12 April 2022.
• Single judge: Permission to appeal against conviction was refused on the papers.