Robotham v R

Fresh evidence will not render a conviction unsafe merely because it permits a further challenge to a witness’s credibility. The court must assess the evidence in the context of the trial as a whole and ask whether it creates a realistic possibility of a different verdict. A suggested inconsistency concerning peripheral earlier events will not meet that standard where it does not support the defence actually advanced at trial.

A personal relationship between a defence representative and an investigating officer does not itself establish an unfair trial. There must be a sound basis for concluding that the relationship affected the preparation or presentation of the defence.

The appellant was convicted at the Crown Court at Merthyr Tydfil of an indecent assault upon a 16-year-old member of his Aikido club. His case at trial was that the alleged sexual conduct had not occurred.

The Criminal Cases Review Commission referred the conviction under section 9 of the Criminal Appeal Act 1995 after obtaining fresh evidence concerning reported calls to the NSPCC and earlier sexual allegations made by the complainant. The appellant also sought leave to advance further grounds, including an alleged financial motive, a conflict arising from a relationship between a legal executive in his defence team and the investigating officer, and failures to call witnesses.

The central issue was whether the fresh material, separately or cumulatively, rendered the conviction unsafe.

1. Appeal dismissed; leave refused on the additional grounds. The fresh NSPCC evidence did not undermine the safety of the conviction. Assessed as a whole, it did not support the suggested fabrication of the calls. The contemporaneous social-services material supported the conclusion that the calls had been made, while the evidence also permitted the jury to conclude that anonymous calls could not later be traced.

2. The fresh evidence about the complainant’s earlier accounts of sexual incidents did not create a realistic possibility of a different verdict. Even if it showed inconsistency or exaggeration in relation to those incidents, the appellant’s trial case had been that no sexual incident occurred at all. The proposed material was therefore incapable of supporting the defence case that the complaint in this case had been invented.

3. The evidence concerning a possible compensation claim was peripheral. It did not show that the complaint had been prompted by knowledge that compensation might be available, and knowledge that a claim had been made before trial would not have affected the verdict.

4. The relationship between the legal executive responsible for day-to-day preparation of the defence and the investigating officer did not itself make the trial unfair. The appellant knew of the relationship, raised no objection to continued representation, and there was no evidence that it influenced preparation or presentation of the case. The circumstances were materially different from R v Morris (David George) [2005] EWCA Crim 1246, where a conflict had adversely affected the defence.

5. The remaining complaints about uncalled witnesses, cross-examination and alleged hearsay could not affect the safety of the conviction. The court accordingly dismissed the appeal and refused leave on the unarguable additional grounds.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, dismissed the appeal against conviction and refused leave on further grounds.

• Crown Court at Merthyr Tydfil: Convicted the appellant in July 1997 and sentenced him to three months’ imprisonment.