Moore, R. v

A conviction will not be disturbed merely because prosecution evidence contains inconsistencies. Where the trial judge has fairly identified those inconsistencies, directed the jury to acquit unless sure of the complainant’s truthfulness, and the evidence was capable of acceptance, credibility remains for the jury.

Proposed fresh evidence that was available at trial, is unsupported by a witness statement, or has uncertain assistance to the defence will not found an appeal. Telephone records may establish that communications occurred, but cannot establish their substance.

The applicant was convicted at Liverpool Crown Court on 11 July 2008 of assault occasioning actual bodily harm, making a threat to kill, attempted rape and assault by digital penetration. The offences concerned incidents involving his former girlfriend in April and May 2007.

On a renewed application for leave to appeal against conviction, he relied principally on inconsistencies in the complainant’s evidence. He also criticised the summing-up, sought to call his former legal adviser and a previous partner as fresh witnesses, and relied on alleged telephone records and statements made in other proceedings.

The central issue was whether any of those matters rendered the convictions unsafe.

1. The renewed application for leave to appeal against conviction was dismissed. The inconsistencies in the complainant’s evidence did not make the prosecution case so weak that it should have been withdrawn from the jury. The trial judge had considered them at length and made clear that the applicant had to be acquitted unless the jury was sure that she was telling the truth. The summing-up was fair to the defence, and it was properly open to the jury to accept her evidence.

2. The judge’s fair treatment of the defence case did not convey that he considered the applicant innocent. It remained for the jury to assess the evidence and reach its own verdict.

3. The proposed evidence from the applicant’s legal adviser could have been adduced at trial. It was too late to seek it on appeal, particularly as calling the adviser might have exposed the advice to cross-examination.

4. The proposed evidence of a previous partner was unsupported by a statement, was available at trial, and had not been shown to assist the defence. It afforded no ground of appeal. The suggested telephone records could show only that calls were made, not their content; the existing trial evidence about calls and messages did not assist the applicant.

• Court of Appeal (Criminal Division): By [2009] EWCA Crim 2080, dismissed the renewed application for leave to appeal against conviction.
• Liverpool Crown Court: Convicted the applicant on 11 July 2008 of assault occasioning actual bodily harm, making a threat to kill, attempted rape and assault by digital penetration.