Duncan, R. v

An appellate court may refuse to admit oral evidence which merely repeats written statements already admitted at trial, particularly where the witness’s absence is inadequately explained, no adjournment was sought, and the evidence could not materially assist the defence.

A summing-up must be assessed as a whole. A judge’s conventional warning about the limited weight of untested written evidence, or an isolated unfortunate comment, will not render a conviction unsafe where the jury received adequate directions and the issues were fairly identified. An early majority-verdict direction is undesirable in a potentially complex case, but it does not itself establish unfairness or an unsafe conviction.

The appellant was convicted in the Middlesex Guildhall Crown Court before Lawrence HHJ of two counts of rape and one count of inflicting grievous bodily harm. He was acquitted of the restraint count and received a total sentence of nine years’ imprisonment.

His case at trial was that the complainant had accompanied him voluntarily and that all sexual activity was consensual. A flatmate’s two written statements were read as defence evidence because the flatmate did not attend trial.

On an appeal against conviction by leave of the single judge, the appellant sought to call that flatmate orally as fresh evidence. He also challenged the judge’s treatment of the statements and character evidence, the fairness of the summing-up, and the timing of the majority-verdict direction. The central issue was whether those matters, separately or cumulatively, rendered the convictions unsafe.

1. Appeal dismissed. The court was not persuaded that the convictions were unsafe. The principal factual issues were for the jury, which had heard all the evidence and received sufficient directions.

2. The proposed oral evidence of the flatmate was refused. The court queried, without deciding, whether evidence identical in substance to statements already read to the jury could be treated as evidence not previously adduced under Criminal Appeal Act 1968, section 23. In any event, admission was not in the interests of justice. The witness’s absence was inadequately explained; the defence had not sought an adjournment; and oral evidence would have exposed discrepancies between the statements to cross-examination. His brief observation of consensual-looking sexual activity could not materially advance the defence.

3. The trial judge’s direction that the jury might attach little weight to the untested statements was conventional and did not unfairly dismiss the evidence. The jury had been told that fact-finding was theirs alone. Defence counsel had fully advanced the alleged significance of the statements, while a fuller judicial rehearsal could have highlighted discrepancies harmful to the appellant.

4. The judge’s description of part of the appellant’s character evidence as somewhat ingenuous was unfortunate, but it did not undermine the overall fairness of the summing-up. The judge fairly explained why evidence of recent good character had enabled the jury to hear of previous convictions, and also stressed their age and different character from the allegations tried.

5. The majority direction was given earlier than desirable for a case of this nature. However, the jury returned only one unanimous verdict that day and delivered the remaining verdicts after a further interval. The timing therefore caused no demonstrated pressure, unfairness, or prejudice. Considered cumulatively, the asserted defects created no lurking doubt as to safety.

• Court of Appeal (Criminal Division): Duncan, R. v. The appeal against conviction, brought by leave of the single judge, was dismissed: [2003] EWCA Crim 3184.
• Middlesex Guildhall Crown Court: Lawrence HHJ presided over the trial. The appellant was convicted of two counts of rape and one count of inflicting grievous bodily harm, acquitted of the restraint count, and sentenced to nine years’ imprisonment in total.