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It was held that the judge ruled that the evidence was inadmissible and the appellant was convicted on a majority verdict5. The appellant was consequently fined 50 and ordered to pay 100 for the fees of prosecution. He later appealed inter alia, that the judge’s ruling was incorrect.
On November 13, 1979, between the hours of 4:45 and 5 p.m., five officers of the law from the South East Area Vice Squad kept plain clothes observation on a public convenience store in Portsmouth6. For the duration of this time, the appellant, aged 22, entered and exited the shop on four occasions. Two times he followed two officers inside the restroom of the store where the plaintiff masturbated for approximately one minute near the urinal. Both officers reported that the appellant masturbated openly, noisily and violently and while staring at them for the duration of the episode7. The appellant was asked to leave the store and was then cautioned outside. The officers reported that the appellant stated that he had been satisfying his lust due to the fact that his girl friend was away. The officers reported that the appellant then denied that he was attempting to attract other men and explained that he felt the urge to masturbate as he passed the convenience store. The appellant could neither explain the reason why he failed to go to his house nor why he had failed to use a stall. He conceded to the officers that his actions looked bad and he later repeated this defense at his trial8.
The jury failed to reach a consensus at the appellant’s first trial and on the re-trial, the appellant sought to tender comprehensive evidence regarding his heterosexual relationships with females in order to refute inferences from witnesses9.
The appellant appealed via a certificate of the trial judge under section 1 (2) of the Criminal Appeal Act 196810. His appeal was based on terms of whether on a trial for persistently importuning for an immoral purpose, if evidence regarding the appellant’s heterosexual disposition would be admissible. Also, if this is the case, whether this evidence should be limited to general evidence of reputation or whether it could include specific evidence regarding heterosexual relationships11.
It was held that though a defendant would be able to call evidence to show that he did not commit the acts alleged against him, he is not allowed to call evidence that he was of a disposition that brings about the unlikelihood that he would have committed the offence charged12. Applying the case of Rowton (1865), the trial judge ruled as he did arguing that the construction of the type of evidence in the present case would have been inadmissible and undesirable, and in addition to this, the appeal would be dismissed13.
The appellant had originally been tried on March 31, 1980 and the present trial was a retrial. During the first trial, under his Honor Judge Brodrick, the appellant produced five bundles of documents described as love letters14. Included in the documents were images of the plaintiff with five girls. The images were taken in contexts to suggest that the plaintiff was on intimate terms with the girls.