McNamara, R v

Under Criminal Appeal Act 1968, section 23, proposed fresh evidence should be refused where, even if heard at trial, it could not reasonably have affected the jury’s decision. The appellate court must assess the proposed evidence against the whole evidential background and the realistic implications of the alternative case advanced.

A speculative account requiring multiple unproven errors and an unidentified source for a fingerprint could not reasonably affect the verdict. The appeal was therefore dismissed.

Following a jury trial at Manchester Crown Court, Mr McNamara was convicted of burglary and theft of a motor vehicle arising from a dwelling-house burglary. The prosecution case depended on his thumbprint on a lift recorded as having been taken from a jewellery box in the burgled house.

At trial, the defence accepted that the print was his but alleged that it had been planted. On appeal, he sought to adduce further fingerprint and document-examination evidence under section 23 of the Criminal Appeal Act 1968. He contended that the two lifts had been wrongly recorded and that the relevant print may have come from an unidentified curved object which he had innocently handled.

The central issue was whether that evidence should be received and whether it could reasonably have affected the jury’s decision.

1. Appeal dismissed. The court refused to receive the proposed evidence under section 23 of the Criminal Appeal Act 1968, because it could not reasonably have affected the jury’s decision had it been called at trial.

2. The appellant’s revised case required the court to accept that the crime-scene examiner had wrongly recorded the source of both fingerprint lifts. It also required the court to infer that the lift bearing the appellant’s print came from an unidentified curved object, not disturbed in the burglary, which he had innocently handled at some unknown time.

3. That account was assessed against the household’s cleaning regime, the limited disturbance caused by the burglary, the evidence identifying and accounting for the household’s vases and lamp, and the absence of any realistic basis for innocent handling. In that setting, the new expert evidence concerning the appearance and provenance of the lifts could not reasonably have altered the jury’s verdict.

4. The court noted a strong argument that the evidence was not fresh within section 23(2)(d), since the lifts and documentation were available before trial, the innocent-contact case was then available, and the defence could have conducted further contamination experiments during the trial. However, having already concluded that the evidence could not reasonably have affected the verdict, the court expressed no concluded view on that statutory condition.

• Court of Appeal (Criminal Division). In [2004] EWCA Crim 2818, the court dismissed the appeal against conviction and refused to receive the proposed further evidence.

• Manchester Crown Court. On 25 June 2001, following trial before HHJ Woodward and a jury, Mr McNamara was convicted of burglary and theft of a motor vehicle. On 17 July 2001, he received concurrent sentences of two and a half years’ imprisonment.