Regina v Durbin: CACD 1995

The appellant had been convicted of the importation of 875 kilos of cannabis. He had spent convictions but more significantly he admitted in interview being engaged in smuggling other contraband goods. Furthermore, he admitted telling lies to the prosecution witnesses about his relationship with a co-accused. The trial judge advised the jury to treat him as a man of good character but he declined to give the jury a good character direction. The direction was withheld out of consideration of a co-accused with relevant convictions.
Held: The appeal was allowed. A full but modified good character direction should have been provided to the appellant.
Evans LJ said: ‘In our judgment the law now is as follows:
(1) Where the defendant is of previous good character, then he is entitled to the good character direction (both limbs if his credibility is an issue, the second limb only if it is not), notwithstanding that he may have admitted telling lies in interview (R v Kabariti [1991] 92 Cr App R 362) and may have admitted other offences or disreputable conduct in relation to the subject matter of the charge, as we hold here (contrast Zoppola-Barrazza [1994] Crim LR 83, and R v Buzalek and Schiffer [1991] Crim LR 116). In such cases, however, the terms of the direction should be modified to take account of the circumstances of the case, including all facts known to the jury, either as regard credibility or propensity, or both.
(2) Where the defendant is not of absolutely good character the trial judge has a discretion as to whether or not to give a ‘good character’ direction, and if so in what terms, but he cannot properly decide not to do so, and in unqualified terms, if the blemishes can only be regarded as irrelevant, or of no significance, in relation to the offence charged. (H [1994] Crim LR 205, and contrast Zoppola-Barrazza).
(3) By the same token, there will be cases where the defendant is not of absolutely good character but where the only proper course is to given a qualified direction in suitably modified terms, assuming of course that the fact of the previous conviction or other character blemishes is known to the jury. This is likely to mean that careful consideration will have to be given to the distinction between the two limbs of credibility and propensity.
(4) Character, bad or good, is not simply a matter of the presence of absence of previous convictions, nor is it the same as reputation although the one may be evidence of the other.
(5) In all cases where the qualified direction is given, we consider it essential that it should be in realistic terms, taking account of all the facts as they are known to the jury. The jury should not be directed to approach the case on a basis which, to their knowledge, is artificial or untrue.’
Evans LJ
[1995] 2 Cr App R 84
England and Wales
Cited by:
CitedPayton, Regina v CACD 26-May-2006
The defendant appealed a conviction of possession of 66 grams of cannabis with intent to supply. Also found were a large number of small bags and pounds 7,000 in cash. The defendant said the cannabis was for his personal use, and the equipment had . .
CitedRegina v Aziz; Regina v Tosun; Regina v Yorganci HL 16-Jun-1995
The defendant (one of three) relied upon his part exculpatory statement made in interview and did not give evidence. The judge said that his good character was relevant as to his own propensity, and the character of the others was relevant to their . .
CitedGAI v Regina CACD 5-Oct-2012
The defendant’s appeal based on the absence of a good character direction had succeeded. The court now gave its reasons.
Held: After reviewing the authorities, the appeal succeeded: ‘the learned judge was wrong to find that the fact that . .

These lists may be incomplete.
Updated: 26 March 2021; Ref: scu.242251