Dunn & Ors, R. v

The appellate court must assess alleged fresh evidence in the context of the whole case. Where it concerns the credibility of a material prosecution witness, the question is whether it realistically places the appellant’s guilt in reasonable doubt and so makes the conviction unsafe. The court does not substitute its own view of witness credibility for that of the jury. It must nevertheless conduct its own analytical assessment of the fresh material and its likely effect alongside the remaining evidence.

In a difficult case, it will usually be sensible to test the provisional conclusion by asking whether the evidence, if given at trial, might reasonably have affected the jury’s decision. A conviction may be upheld where, despite inconsistencies or lies in a witness’s account on collateral matters, the court remains sure of guilt on the evidence as a whole.

At Birmingham Crown Court, James Dunn, Luke Turner and Craig Dooley were convicted of the murder of Clinton Bailey. Dunn received a life sentence with a minimum term of 26 years; Turner and Craig Dooley each received life imprisonment with a minimum term of 30 years.

Dunn appealed against conviction on the basis of material emerging from subsequent trials of Conrad Jones. He contended that it substantially undermined Maria Vervoort’s credibility. Her evidence implicated Dunn in threats and in a plan to lure and shoot the deceased. Turner and Craig Dooley renewed applications for permission to appeal. They challenged the admission of hearsay evidence.

The central issue in Dunn’s appeal was whether the further material rendered his conviction unsafe. The court also had to decide how to deal with the hearsay issue raised by Turner and Craig Dooley while Horncastle & others was pending before the House of Lords.

1. Dunn’s appeal was dismissed. The court held that the further material concerning Vervoort did not render his conviction unsafe. Although her evidence was important, it was not the only evidence capable of implicating him.

2. Under section 23 of the Criminal Appeal Act 1968, the appellate task was not simply to replace the jury’s assessment of Vervoort. The court had to decide whether the new material realistically placed Dunn’s guilt in reasonable doubt, having regard to all the evidence. In a difficult case, the useful cross-check is whether the evidence, if available at trial, might reasonably have affected the jury’s decision, as stated in Pendleton, [2002] 1 WLR 72. The court applied the fuller approach in Dial, [2005] 1 WLR 1660.

3. The alleged inconsistencies, later accounts and disclosure matters did not show that Vervoort had falsely implicated Dunn in the murder. They were either collateral, explicable by the passage of time and repeated questioning, or insufficiently significant to affect the verdict. Her account remained broadly consistent on Dunn’s involvement.

4. The court considered her evidence alongside independent and supporting evidence: Murray’s account of the earlier threats; evidence that the deceased was frightened; substantial telephone traffic involving Dunn and the other participants; and Dunn’s untruthful and limited interview responses. The jury had also been warned to approach Vervoort’s evidence with care. The court remained sure of Dunn’s guilt and upheld his conviction.

5. The renewed permission applications of Turner and Craig Dooley were adjourned pending the House of Lords’ consideration of Horncastle & others. Their hearsay ground potentially engaged Article 6 and Article 6(3)(d), following Al-Khawaja & Tahery v United Kingdom, [2009] ECHR 26766/05.

• Court of Appeal (Criminal Division): Dunn’s conviction appeal was dismissed. The renewed applications of Turner and Craig Dooley for permission to appeal against conviction were adjourned pending the House of Lords’ decision in Horncastle & others.

• Crown Court at Birmingham: On 20 July 2006 Dunn, Turner and Craig Dooley were convicted of murder. On 21 July 2006 they received life sentences with minimum terms of 26 years for Dunn and 30 years for each of Turner and Craig Dooley.