CRIMINAL DIVISION
The Strand London WC2A 2LL |
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B e f o r e :
MRS JUSTICE McGOWEN DBE
MR JUSTICE MARTIN SPENCER
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R E G I N A |
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TERRY LARKIN |
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Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
Mr I West appeared on behalf of the Crown
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Crown Copyright ©
Friday 11th September 2020
LADY JUSTICE CARR:
Introduction
The Facts
18. XY was also cross-examined. Amongst other things, she stated that her mother did not go for the applicant with the knives whilst screaming.
The evidence of Ms Robinson and the circumstances of its production
"9. [AB] explained that [the applicant] went to pick her up as she was drunk and with [XY] … She said that they went back to her home and that she had attacked [the applicant] with a knife. I asked her why she did this, but she didn't go into much detail and simply said that she pulled a knife on him.
10. She then said that she had fallen into the bath but in the next breath she said [the applicant] had pushed her into the bath and tried to drown her. She said that they then went to bed and she woke up sore the next day. She didn't give any further details and she didn't say anything about reporting this to the police.
…"
Grounds of Appeal
Grounds of Opposition
Analysis
"(1) For the purposes of an appeal or an application for leave to appeal, the Court of Appeal may, if they think it necessary or expedient in the interests of justice:
…
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard to –
(a) whether the evidence appears to the court to be capable of belief;
(b) whether it appears to the court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings below;
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
43. Allied to that is the question of admissibility. We query whether or not the evidence would have been admissible even on the limited question of credibility but we certainly have grave doubts as to the admissibility of the evidence under section 114(1)(d) of the Criminal Justice Act 2003, not least having regard to the factors identified in section 114(2).
"You are entitled to take into account what the complainant told these various people when assessing the consistency and credibility of her allegations, and the defence positively invite you to do this, because their submission is that if you compare it with what she told the police in her interview, and indeed what she told you, they say … there are significant discrepancies which tend to undermine her evidence as a whole in the case. Well, that is a submission you will no doubt carefully consider."
47. Putting it shortly, the evidence of Ms Robinson, even if credible and reliable, would have been little more than "more of the same" material with which to challenge AB's credibility. The fresh evidence could not be said to be of such weight as to have cast a substantially new or different light on the issues and evidence already before the jury so as arguably to render the conviction unsafe.