R. v Peter Weller

A post-trial expert report which arguably shows that scientific opinion presented at trial lacked a proper foundation may provide a sufficient basis for leave to appeal against conviction. Granting leave on that ground does not determine whether the new evidence will be received. That question, including the application of section 23 of the Criminal Appeal Act, remains for the Full Court.

The applicant was convicted at Kingston upon Thames Crown Court of sexual assault by penetration contrary to section 2 of the Sexual Offences Act 2003, and was sentenced to three years’ imprisonment.

His application for leave to appeal against conviction was lodged late and refused by a single judge. He advanced four proposed grounds, concerning disclosure, the summing-up, and DNA evidence found on his left-hand nail clippings.

After this court funded a further report, Dr Bader concluded that there was no scientific support for the prosecution expert’s opinion that the DNA strongly supported vaginal origin. The central issue was whether that report supplied a sufficient basis for leave and, if so, whether it should later be received as fresh evidence.

1. Leave granted on the DNA ground. The court held that the further expert report raised a sufficient ground for leave to appeal against conviction. The report was capable of supporting the contention that the prosecution expert’s opinion about the likely provenance of the DNA had been presented as expert evidence without a scientific foundation.
2. The other proposed grounds did not justify leave. The alleged disclosure deficiency concerning the complainant’s first complaint disclosed nothing of substance. Although the trial judge’s description of a brief review of the expert evidence as a “little romp” might appear unfortunate, the summing-up dealt adequately with that evidence and gave no proper basis for complaint.
3. No determination of the fresh-evidence issue. The court did not decide whether Dr Bader’s evidence should be admitted or whether the conviction was unsafe. It expressly reserved to the Full Court the question whether the evidence should be received under section 23 of the Criminal Appeal Act, noting that its application would raise real issues.
4. Further procedure. A representation order was made for junior counsel. Any further directions, including those required after the prosecution had considered its position and any further evidence, were to be sought in writing where possible.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1670, the court granted leave to appeal against conviction on the proposed fresh DNA-expert-evidence ground and reserved the section 23 issue to the Full Court.
• Court of Appeal (single judge): Refused the earlier application for leave to appeal against conviction.
• Kingston upon Thames Crown Court: On 3 November 2006, convicted the applicant of sexual assault by penetration and later sentenced him to three years’ imprisonment.