Meachen v R

Under section 23 of the Criminal Appeal Act 1968, fresh expert evidence should not be received merely to retry a dispute which the jury resolved after hearing competent opposing experts. The appellate process would be subverted if a convicted defendant could add an expert on appeal to repeat, or bolster, an opinion that could and should have been advanced at trial.

Evidence that is speculative, intrinsically unhelpful, or does not materially advance the evidence heard by the jury provides no basis to receive it or to find a conviction unsafe. Where the jury’s accepted finding on causation securely supports an inference of intent, speculative evidence about an ancillary matter does not undermine the safety of the conviction.

The appellant was convicted at Swansea Crown Court of causing grievous bodily harm with intent after the complainant sustained exceptionally severe peri-anal injuries. His case was that the injuries resulted accidentally from consensual sexual activity. The prosecution relied on evidence that the injuries could not have been caused in that way.

An earlier appeal had succeeded in relation to two other counts, but the Court of Appeal had dismissed the appeal against this conviction: [2006] EWCA Crim 424. Following a reference by the Criminal Cases Review Commission, the appellant sought to adduce further toxicological evidence and a further medical expert opinion. The central issue was whether that material should be admitted as fresh evidence and, if so, whether it rendered the conviction unsafe.

1. Appeal dismissed. The court declined to receive the proposed fresh evidence and held that the conviction was safe.

2. Section 23 of the Criminal Appeal Act 1968 gives a discretionary safeguard against wrongful conviction. It does not permit a defendant generally to mount on appeal an expert case which could and should have been advanced before the jury. The court applied the reasoning in R v Steven Jones [1997] 1 Cr. App. R 86. The statutory considerations concerning belief and a reasonable explanation for the failure to adduce evidence are less naturally directed to expert opinion than factual evidence.

3. The further evidence from the toxicologist was not materially probative. Its wide and speculative range did no more than confirm the trial evidence that the complainant was highly intoxicated and might have been insensible. It could not reliably establish her degree of consciousness or perception of pain at the material time.

4. The further medical opinion on causation was, in substance, the same opinion as that given at trial by a competent defence expert. It was therefore not genuinely fresh evidence for the purpose advanced. Permitting a third expert to revisit the jury’s resolution of the disagreement between the trial experts would add nothing and would subvert the trial process.

5. Pain perception was not the central issue. The decisive question was whether the jury could be sure that the prosecution expert was correct that the injuries could not have arisen in the manner described by the appellant. If the jury accepted that causation evidence, the inference that the appellant intended really serious harm remained secure. The judge’s direction on intent was unimpeachable, and the proposed evidence did not make any alternative case on intent viable.

• Court of Appeal (Criminal Division) — On a reference by the Criminal Cases Review Commission, declined to admit the proposed fresh evidence and dismissed the appeal against the conviction.
• Court of Appeal (Criminal Division) — In an earlier appeal, allowed the appellant’s appeal against convictions on two other counts but dismissed his appeal against the conviction for causing grievous bodily harm with intent: [2006] EWCA Crim 424.
• Swansea Crown Court — On 22 May 2003, convicted the appellant by jury of causing grievous bodily harm with intent and sentenced him to 10 years’ imprisonment.