Williams (Deceased), R v

On an appeal based on fresh evidence, the Court of Appeal must determine the safety of the jury’s conviction and must not become the primary fact-finder. Where the effect of the evidence is not conclusive, the proper question is whether, if it had been given at trial, it might reasonably have affected the jury’s decision to convict. Fresh evidence which is unreliable or incapable of belief may be refused. Evidence which is received must be assessed with the trial evidence as a whole. A conviction remains safe where the new material would not reasonably have affected the jury’s verdict.

The appellant was convicted of murder at Worcester Crown Court in 1977. This court refused leave to appeal in 1979. Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the deceased appellant’s sister continued the appeal with permission under section 44A of the Criminal Appeal Act 1968.

The prosecution case had been circumstantial and the time of death was important to the appellant’s alibi. The reference relied principally on evidence from Mrs Hall, who said she saw the deceased alive on Saturday morning, and Professor Crane’s evidence concerning the time of death and the possible murder weapon. The court also considered, but refused to receive, a post-trial retraction by another witness. The central issue was whether the fresh evidence rendered the conviction unsafe.

1. Appeal dismissed. The conviction was safe. The court held that the fresh evidence would not reasonably have affected the trial jury’s decision to convict.

2. Applying R v Pendleton [2002] 1 Cr.App.R 441, the court emphasised that its function was to assess the safety of the jury’s verdict, rather than to determine guilt afresh. In a case of difficulty, the appropriate check was whether the evidence, had it been adduced at trial, might reasonably have affected the jury’s decision.

3. The court refused to receive the further evidence of Dawn Mapp. Her proposed evidence asserted that her trial evidence had been untrue, involved conflicting prior accounts and allegations disputed by senior police officers. Assessed under section 23 of the Criminal Appeal Act 1968, it was not capable of belief. By contrast, the court received Mrs Hall’s evidence because the defence appeared not to have known of it at trial, notwithstanding possible technical objections under that section.

4. Mrs Hall honestly believed that she had seen the deceased on the Saturday, but the court found her mistaken. Her account contained material inconsistencies and she had not seen the person’s face. More importantly, all three pathologists considered it unlikely that death occurred after 6.00 am on the Saturday.

5. Professor Crane’s view that the recovered knife was unlikely to have caused the stab wounds added little. It had been formed without examination of the body, and the defence had already been able to challenge the trial pathologist on substantially the same points. Taken with the strong cumulative circumstantial case at trial, neither item of fresh evidence could reasonably have altered the verdict.

• Court of Appeal (Criminal Division) — On a Criminal Cases Review Commission reference, the court dismissed the appeal and held the conviction safe: [2003] EWCA Crim 1008.
• Court of Appeal (Criminal Division) — Refused the appellant leave to appeal against conviction on 15 February 1979; no citation is stated.
• Worcester Crown Court — Convicted the appellant of murder on 5 December 1977 and sentenced him to life imprisonment.