Thackery, R v

On an appeal against conviction founded on fresh evidence, the court must determine whether the evidence said to undermine the trial evidence is capable of belief. Where the fresh witnesses give materially inconsistent accounts, are affected by confusion, and the surrounding circumstances contradict their account, the court may reject the evidence and uphold the conviction as safe.

The appellant was convicted at the Crown Court at Warrington of the indecent assault of a 14-year-old complainant.

After conviction, four teenage witnesses said that the complainant had admitted, during an incident outside a chip shop, that the appellant had not touched her or that she had fabricated her allegation. The complainant denied making such an admission and said that she had been threatened during the incident.

The appeal was brought by leave on the ground that this post-conviction evidence rendered the conviction unsafe. The parties agreed that the sole issue was whether the fresh evidence, insofar as it contradicted the complainant’s evidence, was capable of belief.

1. Appeal dismissed. The court held that the fresh evidence was not capable of belief and did not render the conviction unsafe.

2. The accounts given by the appellant’s witnesses were materially inconsistent. They differed about who first approached the complainant, what questions were asked, whether she referred only to rape or to any touching, and whether she attributed her allegation to bullying or to a dispute with another girl.

3. The court accepted that the complainant was crying because of the threatening behaviour and number of people confronting her, rather than because she was spontaneously distressed at having given false evidence. It rejected the witnesses’ account of a calm conversation.

4. The court accepted the complainant’s evidence that she had denied only a false rumour that the appellant had raped her. It found that she had not admitted making a false allegation of indecent assault. The fresh evidence therefore provided no basis for disturbing the jury’s verdict.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2005] EWCA Crim 828.
• Crown Court at Warrington: convicted the appellant on 9 December 2004 of indecent assault.