Wooster, R v

Under section 23 of the Criminal Appeal Act 1968, credible and admissible fresh evidence need not be received where its critical factual premise lacks evidential support and it could not affect the jury’s deliberations or afford a ground for allowing the appeal.

A trial judge must identify the defence, draw attention to salient evidence and focus the issues for the jury. The required detail depends on the case. A failure to give adequate assistance does not itself make a conviction unsafe. The appellate court must assess whether, in the circumstances, the jury could have misunderstood the issue or the evidence relevant to it.

The appellant was convicted at Chelmsford Crown Court of murder after firing a pistol at or towards a departing car. A passenger in the car was killed. His earlier appeal against conviction was dismissed.

Following a reference by the Criminal Cases Review Commission, the appellant renewed his appeal. He relied first on fresh firearms evidence said to show that the gun might have been aimed over the car if it had been fired from a substantial distance. Secondly, he challenged the adequacy of the trial judge’s summing-up of his defence that he had intended only to frighten the occupants.

The central issues were whether the fresh evidence should be received and whether the deficiencies in the summing-up rendered the murder conviction unsafe.

1. Appeal dismissed. Lord Justice Latham, giving the judgment of the Court, held that the murder conviction was not unsafe.

2. The proposed fresh evidence was credible and would have been admissible. However, the Court declined to receive it under section 23 of the Criminal Appeal Act 1968. The possible long-range firing position, approximately 185 yards from the car, had no support in the trial evidence. Witnesses who estimated distance placed the car much closer. The appellant’s own account was that he had fired downwards, rather than over a distant car. The new evidence would therefore have had no effect on the jury’s deliberations and could not afford a ground for allowing the appeal.

3. The trial judge had not given the defence the assistance which the authorities required. A summing-up should identify the defence, refer to salient evidence and focus the jury on the issues. The extent of that duty depends on the circumstances.

4. That deficiency did not render this conviction unsafe. Despite the expert evidence, the jury had a simple question: what the appellant intended when he fired the fatal shot. The jury could not realistically have been confused about that question or the interview material and other evidence bearing upon it. The Court accordingly dismissed the appeal.

• Court of Appeal (Criminal Division) In [2003] EWCA Crim 748, following a reference by the Criminal Cases Review Commission, the Court dismissed the renewed appeal and held the conviction safe.
• Court of Appeal (Criminal Division) The appellant’s earlier appeal against conviction was dismissed; no citation is stated in the judgment.
• Crown Court at Chelmsford On 10 June 1991, the appellant was convicted of murder and sentenced to detention for life.