Brown, R v

Under section 23(2)(d) of the Criminal Appeal Act 1968, fresh expert evidence should be received where the interests of justice require a reassessment of evidence central to the prosecution case. Evidence which could and should have been called at trial may properly be refused where it would not, by itself, afford a basis for allowing the appeal.

A conviction is unsafe where fresh medical evidence shows that an apparently corroborative physical finding was materially oversimplified at trial and is capable of several explanations. The difficulty is aggravated where the prosecution relied significantly on an expert later discredited in comparable work.

The appellant was convicted at Newcastle upon Tyne Crown Court in 1996 of raping his girlfriend’s five-year-old son and was sentenced to seven years’ imprisonment. An earlier appeal against conviction was dismissed in 1997.

The Criminal Cases Review Commission later referred the case after obtaining fresh psychiatric and medical reports. The prosecution case had depended principally on a neighbour’s account of what she heard and medical evidence concerning an anal abnormality. The appeal raised the admissibility and effect of the fresh evidence, the later discrediting of one prosecution expert, the admissibility of the neighbour’s evidence that she was physically sick, and whether rape had properly been left to the jury.

1. Appeal allowed and conviction quashed. Per Kennedy LJ, giving the court’s single judgment, the conviction was unsafe.

2. The court refused to receive Dr Fenwick’s evidence concerning the reliability of the neighbour’s perceptions. Although it was admissible and capable of belief, it could have been called at trial. The subsequent discovery of the witness’s sexual history merely enhanced evidence which could already have been obtained. Applying Steven Jones [1997] 1 Cr App R 86, the court held that receiving such evidence was not necessary or expedient in the interests of justice.

3. The court received the fresh medical evidence. Taken with the trial evidence, it permitted a necessary reassessment of the anal abnormality. The trial had presented the medical issue too simply. The finding was capable of several explanations, including an anal fissure of non-abusive origin, and the absence of bruising, bleeding, soreness or distress could materially affect the weight of the prosecution case.

4. The difficulty was aggravated because Dr San Lazaro’s evidence had been a significant part of the prosecution case and she had later been completely discredited in Lillie and Reed v Newcastle City Council [2002] EWHC 1600 QB in relation to earlier sexual-abuse allegations. The jury might have treated her as resolving the conflict between the other medical witnesses.

5. The court rejected the remaining grounds. The neighbour’s physical sickness was relevant evidence of the impact of what she heard and required no special direction. On the evidence then available, the trial judge had also been entitled to leave rape, rather than only indecent assault, to the jury. A retrial would otherwise have been ordered, but the passage of time and completion of the sentence made that inappropriate.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court allowed the appeal and quashed the conviction: [2004] EWCA Crim 50.
• Court of Appeal (Criminal Division): A differently constituted court dismissed the appellant’s earlier appeal against conviction in 1997. The citation is not stated in the judgment.
• Crown Court at Newcastle upon Tyne: On 19 July 1996, the appellant was convicted of rape and sentenced to seven years’ imprisonment.