R v BAA

A conviction is not unsafe merely because the jury reached no verdict on related counts. Evidence elicited in cross-examination, although it was not part of the prosecution’s original presentation, is evidence the jury may consider. Where the jury are properly directed on the need to prove intentional and indecent touching, they may assess the whole of the evidence and return a verdict on one count independently of the others.

The appellant was convicted on count 6 of multiple indecent assaults contrary to section 14(1) of the Sexual Offences Act 1956. The jury did not reach verdicts on seven other counts and the appellant was to face a retrial on them.

He appealed against conviction, contending that the verdict on count 6 was unsafe because no reasonable jury could properly convict on that count alone. The appeal focused on evidence concerning the application of sun cream and after-sun lotion, which emerged in cross-examination, the jury’s question about holidays, and the judge’s directions.

1. Appeal dismissed. The conviction on count 6 was neither perverse nor unsafe.

2. The judge’s route to verdict correctly required the jury to be sure that the appellant intentionally touched the complainant’s breasts or bottom as alleged and that the touching was indecent. The directions also correctly addressed the burden and standard of proof, the distinct consideration of each count, and the respective functions of judge and jury.

3. Although the prosecution had principally advanced the allegations made in the complainant’s police interviews, her evidence in cross-examination that the appellant touched her breasts and bottom while applying after-sun lotion became evidence in the case. The jury were entitled to consider it. The central issue was whether they accepted her evidence of deliberate and indecent touching.

4. The appellant denied intentional indecent touching, whether in applying lotion or otherwise. The court held that the jury were unlikely to have misunderstood the defence concession about the indecency of the acts charged as contradicting that denial.

5. The jury were entitled to reach a verdict on count 6 on the evidence despite failing to agree on the remaining counts. They were required to assess the whole evidence and were not confined to the prosecution’s original formulation of its case.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2024] EWCA Crim 343.

• Trial court not identified in the judgment: on 19 December 2022, the appellant was convicted on count 6; the jury were unable to reach verdicts on seven other counts.