Andrew Wynes v R

The jury is entitled to revisit the basis of plea of a previous conviction where it is adduced as bad character.

On the 31st of March 2014, Mr Andrew Wynes was convicted of six counts of rape and three counts of sexual assault by penetration, committed on or before the 21st of July of 2008. At this time the victim in all of the counts was 10 years old. Previously, on the 2nd of September of 2009, Mr Wynes had pleaded guilty to possessing an indecent image of a child. He had done so on a favourable written basis that he had inadvertently downloaded it and had failed to delete it. The basis appears to have been unchallenged and on that basis, and being of good character, he received a two-year conditional discharge.

At trial for the rape and assault by penetration offences, the trial judge allowed Mr Wynes' previous conviction for possessing an indecent image of a child to be admitted in evidence. The trial judge ruled that the defence case was based on the fact that the child victim was lying and consequently Mr Wynes' alleged inappropriate interest in young girls was a material issue and the evidence was admissible bad character.

The arguments advanced on appeal were:

i) The judge had erred in admitting the previous conviction, or if it was relevant and admissible as bad character evidence under the Criminal Justice Act 2003 s.101(1)(d), the judge should have excluded it because of its prejudicial effect; and

ii) The judge's summing up amounted to an invitation to the jury to go behind the basis of plea in relation to the previous conviction, which was prejudicial to Mr Wynes and undermined the safety of the conviction.

Held: The appeal was dismissed. It was open to the jury to revisit Mr Wynes' basis of plea in relation to the previous conviction. R. v Z (Prior Acquittal) [2000] 2 A.C. 483 was applied. Mr Wynes' previous conviction for child pornography was evidence of misconduct and demonstrated his sexual interest in young girls. This could potentially support the prosecution case that the victim was telling the truth about the appellant's inappropriate interest in her.

The fact that he had agreed a basis of plea did not create an estoppel issue between the Crown and the appellant. The criminal law does not recognise an estoppel in these circumstances. It was also not a case of double jeopardy. Furthermore, the trial judge's decision to admit the evidence of the previous conviction cannot be criticised. It was consistent with the bad character evidence that was admitted in R. v Z.