The Supreme Court has allowed an appeal by an anonymised former teacher whose convictions for sexual offences against a boy had been supported at trial by evidence from two other boys. The court said cross-examination portraying him as a paedophile breached the rule against using misconduct or character evidence merely to suggest a disposition to offend. It ordered no retrial.
The appeal followed a Court of Criminal Appeal decision refusing leave to appeal. That court certified points of law for the Supreme Court, including whether convictions were unsafe where similar-fact evidence came from allegations on which the appellant was later acquitted.
The two boys, identified in the judgment as B and M, had alleged sexual assaults but not rape. Their evidence was admitted at the earlier trial as similar-fact evidence relating to charges involving a third boy, identified as D. The appellant was convicted on some counts, including rape, and received a ten-year sentence. He was later tried on the charges relating to B and M and acquitted by a jury.
The Supreme Court did not decide whether the later acquittals meant the similar-fact evidence should not have been admitted. It held that the acquittals could be considered when reviewing the earlier convictions, even though they came later. But it said the appeal could be resolved on the prosecution’s use of the evidence and the conduct of the trial.
The judgment described more than 80 pages of transcript and 473 questions put to the appellant over two days. The questioning covered his scouting work, unmarried status, religious principles, relationships and sexual activity. The Supreme Court said the prosecution had used the evidence, along with details of the appellant’s life, to suggest he had the profile or disposition of a sexual abuser.
The court rejected the argument that the defence had opened the door to that questioning by referring to the appellant’s scouting, marital status and heterosexual orientation. It found the cross-examination was directed largely at establishing a disposition to commit the offences and was not justified by the defence case.
The court criticised the questioning as prejudicial and said it breached the long-established rule against using misconduct or character simply to suggest that an accused person was likely to have committed the charged offences. It allowed the appeal and decided that, in the circumstances, there should be no retrial.