Soroya, R. v

Under section 23 of the Criminal Appeal Act 1968, fresh evidence must be assessed for credibility, potential to support an appeal, admissibility, and any reasonable explanation for its absence at trial. Credible evidence does not itself make a conviction unsafe. An appeal should fail where the material does not establish that a complainant was untruthful or materially weaken credibility, particularly where the issue was known to the defence at trial and would have been collateral or unhelpful if explored.

The appellant was convicted at the Crown Court at Blackfriars of rape. The case depended substantially on whether the jury accepted the complainant’s account that intercourse was non-consensual.

On appeal, he sought to rely on fresh evidence concerning the complainant’s account of an earlier sexual assault in Poland. He contended that inconsistent accounts, the absence of corroborating medical records, and her subsequent relationship undermined her credibility and rendered the conviction unsafe. The central issue was whether the proposed fresh evidence justified allowing the appeal under section 23 of the Criminal Appeal Act 1968.

1. The appeal against conviction was dismissed. The court applied section 23 of the Criminal Appeal Act 1968, which requires regard to the credibility of fresh evidence, its potential to afford a ground for allowing the appeal, its admissibility, and the explanation for not adducing it at trial.
2. With the exception of the inquiry agent, the fresh factual evidence was capable of belief. It nevertheless did not show that the complainant had invented the earlier assault or had been untruthful. The evidence instead supported the conclusion that she had disclosed an assault at a party to a close friend. The lack of further disclosure or of a medical record did not establish falsity, given her reserved character, memory difficulties and the possible explanations for discrepancies in her accounts.
3. The court held that the defence had known at trial of the earlier-assault allegation, the differing descriptions, and the absence of a reference in medical records. It could have investigated or explored the matter then. Any inquiry would have concerned a collateral issue rather than the central issue of consent and could have damaged, rather than assisted, the defence. The fresh evidence therefore afforded no ground for allowing the appeal, and there was no reasonable explanation for failing to pursue the issue at trial.
4. The further proposed grounds concerning alleged contradictions and the complainant’s later relationship provided no basis for leave to appeal. The court found the conviction safe, noting the appellant’s lies to the police, the prompt distressed complaint, and the fair and clear summing up.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 3120, the court dismissed the appeal against conviction on the fresh-evidence ground and refused leave on two further grounds.
• Court of Appeal (Criminal Division): On 12 July 2006, a separate division dismissed a distinct ground relating to section 41 of the Youth Justice and Criminal Evidence Act 1999.
• Crown Court at Blackfriars: On 22 June 2004, Judge Martineau and a jury convicted the appellant of rape by a majority of 10 to 2.