A case where the judge’s summing up was defective, most notably regarding the burden of proof
The appellant was convicted of ten counts of indecent assault and four counts of indecency with a child. He appealed against conviction on two grounds: the trial judge's summing up on the burden and standard of proof was defective, and that this was an exceptional case where the court should have a lurking doubt about the safety of the conviction.
The trial judge referred to the burden of proof in this way:
"Whilst it is true – as I will come to in a moment – that the prosecution bear the burden of proof, the defendant has given evidence and although he does not have to prove anything, his evidence is evidence in the case."
"… So you are entitled to consider this evidence and her evidence and you are entitled to consider the very thorny question why is she lying, ladies and gentlemen. There seems to be no grudge between G and Mr West. G has risked her oldest friendship once she has complained. If you reject the reason provided by Mr West which is in itself, as he concedes, speculative and guesswork, ladies and gentlemen, do not rush to judgment. Just because you think his theory was wrong does not mean to say that he necessarily is lying and that she is telling the truth. Remember, ladies and gentlemen; when you consider the question why is she lying remember it is the prosecution who have to prove that she is telling the truth. He does not have to prove that she is lying or why she is lying. He does not have to present any motivation as to why she is lying, because the burden of proof is on the prosecution, ladies and gentlemen, and in order to convict you have to be sure that G is telling the truth and that is what you must be looking at; is she telling the truth, ladies and gentlemen? Why is she lying may be the work of guesswork, he may not give a very good reason, but he does not have to give any reason, ladies and gentlemen; all right?"
Held, We are left with the impression that the jury may not have fully taken on board the significance of the standard of proof.
In addition, this was a case where the judge ought to have emphasised that if the defendant may have been prejudiced by delay in the case being tried, the jury ought to have regard to that fact when considering the defendant's guilt.
Finally, there are three less serious concerns about the summing up: when dealing with delay, the judge did not point out the lack of threats or improper persuasion by the defendant; when dealing character, the judge did not remind the jury that no complainants of any wrongdoing had been made within the ten years since the alleged offences in question; finally, the judge did not bring together all factors supporting the defence case.
For these reasons, the summing-up was defective and the verdicts unsafe. Convictions quashed.
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