Hunnisett v R.

On an appeal against conviction, fresh evidence should be received where the interests of justice make that necessary and expedient. Under section 23(2)(d) of the Criminal Appeal Act 1968, the court must consider whether there is a reasonable explanation for the failure to adduce the evidence at trial.

The appellate court should not resolve factual issues which a jury must determine. Where credible fresh evidence could support a verdict of manslaughter by provocation, rather than murder, and the murder verdict is no longer inevitable, the conviction is unsafe. It must be quashed and a new trial ordered.

The appellant had pleaded guilty at Lewes Crown Court to conspiracy to prevent the burial of a corpse and was unanimously convicted of murdering Reverend Ronald Glazebrook. The prosecution alleged that he drowned the deceased and then dismembered the body. At trial, the appellant denied responsibility for the killing.

On appeal, he accepted that he struck the deceased, causing him to fall into the bath and drown. He relied on fresh evidence tending to show that the deceased had sexually abused him and that the abuse was connected with the killing. The central issues were whether that evidence should be received and whether, once received, the murder conviction remained safe.

1. Appeal allowed. The court quashed the conviction for murder and ordered a new trial.

2. The court received the fresh evidence. Applying section 23(2)(d) of the Criminal Appeal Act 1968, as explained in R v Erskine [2009] EWCA Crim 1425, it had to consider whether there was a reasonable explanation for the failure to adduce it at trial. The interests of justice made receipt of the evidence necessary and expedient. The appellant had denied abuse to his advisers, but the psychiatric evidence, the appellant’s age and the recognised reluctance of victims of sexual abuse to disclose abuse provided sufficiently cogent material capable of explaining that failure.

3. The fresh evidence was capable of belief and was capable of linking alleged sexual abuse to the killing. The Court of Appeal was not required, and was not entitled, to decide whether the appellant’s current account was credible in preference to his earlier accounts. Those were matters for a jury.

4. Once the fresh evidence was admitted, a jury could return a verdict of manslaughter by provocation even if it concluded that the appellant had drowned the deceased. A verdict of murder was therefore not inevitable. The court concluded that there was no logical escape from finding the murder conviction unsafe.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 514, the court allowed the appeal, quashed the murder conviction and ordered a new trial.
• Crown Court at Lewes: The appellant pleaded guilty on 12 June 2002 to conspiracy to prevent the burial of a corpse. On 20 June 2002 he was unanimously convicted of murder before Moses J.