Nwobu v R

Under section 23 of the Criminal Appeal Act 1968, proposed fresh evidence must be assessed for credibility, potential effect on the appeal, admissibility and any explanation for its non-adduction. Evidence which no jury could believe cannot undermine the safety of a conviction.

In sentencing rape, the harm to the complainant must be balanced with the circumstances of the offence. Where there are no aggravating features, limited penetration and early desistance may make departure from a five-year starting point wrong in principle. Substantial prosecution or defence costs orders require a proper enquiry into the offender’s means.

The appellant was tried at Southwark Crown Court before HHJ Robbins on three counts of rape. He was acquitted on two counts and convicted on the count alleging rape of A. He received six years’ imprisonment and was ordered to contribute £20,000 towards prosecution costs and to pay £37,000 defence costs.

He appealed against conviction on the sole ground that the court should receive fresh evidence from Heidi Merryweather. The appeal also concerned the term of imprisonment and the costs orders. The central issues were whether the fresh evidence met the requirements of section 23 of the Criminal Appeal Act 1968, whether the sentence was excessive in principle, and whether the costs orders were supported by a proper assessment of means.

Decision

1. The court dismissed the appeal against conviction. It heard Heidi Merryweather’s proposed fresh evidence de bene esse, consistently with the approach in R v Pendleton [2001] UKHL 66, in order to assess whether it was capable of belief.

2. There was no reasonable explanation for the failure to obtain and call that evidence at trial. The defence could have sought the witness’s address or assistance from the Crown Prosecution Service, but made a tactical decision not to do so.

3. The witness’s materially differing accounts made her evidence incapable of belief by any jury. The court was satisfied that the later account was fabricated to assist the appellant after his conviction. Even if it had been given at trial, it could not have affected the jury’s verdict. The conviction was therefore safe.

4. The court allowed the sentence appeal to a limited extent. The judge was entitled to take account of the substantial harm to A, but there were no aggravating circumstances surrounding the offence. Penetration was limited and the appellant desisted early. Applying the five-year starting point identified in R v Milberry [2003] 2 Cr. App. R (s), the six-year term was wrong in principle. The court quashed it and substituted five years’ imprisonment.

5. The court also set aside both costs orders. The trial judge had made substantial orders without a proper enquiry into the appellant’s means. His income was substantially committed to ordinary liabilities, and releasing the equity in the family home would require its sale. He lacked means to pay either prosecution or defence costs. No order for the costs of the appeal was made.

• Court of Appeal (Criminal Division): In [2004] EWCA Crim 105, dismissed the conviction appeal but allowed the sentence appeal to the limited extent of substituting five years’ imprisonment and quashing the prosecution and defence costs orders.

• Southwark Crown Court: Before HHJ Robbins, convicted the appellant of one count of rape on 13 November 2002 and, on 20 December 2002, imposed six years’ imprisonment with prosecution and defence costs orders.