O' Leary, R. v

A conviction is not automatically unsafe because later information calls a prosecution expert’s standing into question. The appellate court must examine the precise nature and importance of that expert’s evidence in the individual case and in light of the issues at trial.

Where disputed expert evidence was an important feature of the prosecution case in disproving self-defence, and fresh evidence materially undermines the reliability or credibility of that expert, the conviction may be unsafe. The proper course may then be to quash the conviction and order a retrial.

The appellant had been convicted of murder at Norwich Crown Court after admitting that he had inflicted the fatal knife wounds but asserting that he acted in self-defence during a struggle.

The prosecution relied on the appellant’s conduct and on pathological evidence to refute that account. Fresh evidence subsequently raised concerns about the standing of the prosecution pathologist, Dr Michael Heath. The appeal concerned whether those concerns rendered the conviction unsafe, particularly because of Dr Heath’s evidence that the injuries to the appellant’s hand could not have been sustained while taking the knife from the deceased.

1. Appeal allowed. The court held that the murder conviction was unsafe. It quashed the conviction and ordered a retrial on a fresh indictment for murder.
2. The court stressed that criticism of Dr Heath did not automatically make unsafe every conviction in which he had given prosecution evidence. The Crown should analyse, in each case, the exact nature and importance of his evidence in the context of the issues tried. A conviction might remain safe even where his evidence had supported the Crown case or had been challenged at trial.
3. Self-defence was the decisive issue in this case. There was no independent evidence of how the fight began or who first produced the knife. The court identified three areas of disagreement between the pathologists: the timing of the fatal wound, the degree of force used, and whether the appellant’s hand injuries were defensive injuries.
4. The court did not make a definitive ruling on the first two disagreements. It observed that, even if the jury had accepted the defence pathologist’s evidence on them, that evidence appeared to add little to the defence case.
5. The hand-injury issue was materially different. Dr Heath had directly rejected the account that the appellant sustained those injuries while wresting the knife from the deceased. The defence evidence treated the injuries as compatible with that account. Dr Heath’s disputed evidence could reasonably be regarded as an important feature of the Crown’s attempt to disprove self-defence. In light of the fresh concerns about him, the conviction was unsafe.
6. The appellant was to be rearraigned within two months. He was remanded in custody pending retrial. The court indicated that Ipswich Crown Court appeared the suitable venue, subject to the decision of the presiding judge.

• Court of Appeal (Criminal Division) allowed the appeal, quashed the murder conviction and ordered a retrial.
• Crown Court at Norwich convicted the appellant of murder before Judge Mellor and a jury on 22 July 2002.