Devon, R. v

Under section 23 of the Criminal Appeal Act 1968, proposed fresh evidence must appear capable of belief. Where evidence was available at trial, the absence of a reasonable explanation for not adducing it is also material. The court may decline to receive evidence which fails those requirements.

Evidence agreed by all parties was admissible under the Criminal Justice Act 2003. An erroneous exclusion of admissible evidence does not render a conviction unsafe where the jury knew its substance and it did not materially undermine the prosecution case.

The appellant was convicted at Liverpool Crown Court of attempting to pervert the course of public justice and harassment putting another in fear of violence. He received six months’ imprisonment and a two-year restraining order.

He appealed against the first conviction with leave, relying on a witness who claimed responsibility for the threat made to the complainant before a previous trial. He renewed his application for leave to appeal against the second conviction. That application relied on the exclusion of a police log concerning an anonymous 999 call and on further proposed evidence about the damage to the complainant’s windows.

The central questions were whether the proposed fresh evidence should be received and whether the exclusion of the police log made the second conviction unsafe.

1. The appeal against conviction on count 1 and the renewed application for leave to appeal against conviction on count 2 were dismissed.

2. The proposed evidence on count 1 was not received under section 23 of the Criminal Appeal Act 1968. The court was required to consider whether it was capable of belief. The witness could not credibly explain his alleged conduct, denied making a threat directed at preventing attendance at court, and had a substantial history of dishonesty. The court therefore attached no credence to his account. The complainant had recognised both the appellant’s voice and his appearance, so the conviction was safe.

3. On count 2, the police log was admissible. It could be admitted under section 114(1)(c) of the Criminal Justice Act 2003 because all parties agreed, and it could also have been admitted under section 117 as a document created by the holder of an office. The judge had erred in excluding it. Section 126 did not explain the ruling.

4. The error did not cast real doubt on the conviction’s safety. Cross-examination had already informed the jury that an anonymous caller reported seeing four people throw a brick or slate through the window. The call did not establish that the appellant was not involved, and the jury therefore had the substance of the point.

5. The further photographic evidence did not materially contradict the complainant’s evidence, fairly read as referring to a piece of an old gate. The further account that children had broken the upstairs window was not received. It could apparently have been adduced at trial, no reasonable explanation for its absence was given as required by section 23(2) of the Criminal Appeal Act 1968, and it was inherently improbable and inconsistent.

• Court of Appeal (Criminal Division): The appeal against conviction on count 1 was dismissed. The renewed application for leave to appeal against conviction on count 2 was also dismissed.

• Crown Court at Liverpool: On 12 May 2005, the appellant was convicted of attempting to pervert the course of public justice and harassment putting a person in fear of violence. He was sentenced to six months’ imprisonment and made subject to a two-year restraining order.