R v NIX (2016)

In a trial involving sexual offences committed by a father against his two daughters, a judge had been entitled to allow into evidence the father’s previous conviction for sexual assault against his step-daughter. The father’s convictions were not rendered unsafe by the judge’s summing up, despite its defects.
The appellant appealed against his conviction for sexual offences.


He had committed offences of indecency with a child and indecent assault against his two daughters, aged between four and eleven, and had made indecent photographs of other children. The older daughter had complained to the police, but no charges had been brought. After a divorce from their mother, the appellant remarried. Years later, the appellant was convicted of sexual assault against his step-daughter, then aged 24. That prosecution had prompted his younger daughter to make a complaint to the police for the first time and his older daughter to repeat her complaints. The Crown applied to adduce evidence of the appellant’s conviction for sexual assault as evidence of his bad character, on the basis that it showed a propensity to commit sexual offences against family members. The judge held that the evidence was admissible under the Criminal Justice Act 2003 s.101(1)(d).


The appellant submitted that (1) the judge had erred in allowing his conviction for sexual assault into evidence as a 24-year-old was a very different victim from a very young child; (2) the judge’s summing up was fundamentally unbalanced.


HELD: (1) The evidence had been properly admitted; it showed a propensity to commit offences of indecency against family members. The fact that it involved a 24-year-old victim made it less powerful than if the victim was a very young child, but its weight was a matter for the jury. It would also have been admissible under s.101(1)(c) of the Act; the jury would inevitably want to know why the younger daughter had come forward for the first time only years after the incident. It was not possible to give an explanation without revealing the fact of the appellant’s conviction. The jury would also want to know where the appellant had been living since moving out of the family home and an attempt to conceal the position would have led the jury into unnecessary doubt.


(2) The judge’s summing up was far from impeccable. However, despite its defects, it did not cross the line into prejudicing the appellant. The convictions were safe.


Appeal dismissed

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