Earle v R.

Fresh evidence should be admitted under section 23(2) of the Criminal Appeal Act 1968 where the statutory conditions are met. Its ultimate significance is assessed by asking whether, viewed in the context of the trial as a whole, it causes the appellate court to doubt the safety of the conviction.

Forensic material does not necessarily undermine a conviction merely because it supports an allegation that a witness lied. Where the evidence cannot establish how or when material was deposited, and remains consistent with the evidence considered at trial, its limited probative force may add nothing capable of raising a reasonable doubt about the verdict.

The appellant was convicted of murder at the Crown Court at Newcastle upon Tyne in 1998 and sentenced to life imprisonment. A renewed application for leave to appeal was refused in 2009.

Following a reference by the Criminal Cases Review Commission, he appealed on fresh low-copy-number DNA evidence. The evidence indicated that material from a blood-positive area of Shirley Waddington’s trainer included a partial profile similar to that of the deceased. Waddington had been the principal prosecution witness and the defence had challenged her credibility at trial.

The central issue was whether the new evidence, considered alongside the trial evidence, rendered the conviction unsafe.

Decision

1. The court admitted the fresh DNA evidence but dismissed the appeal. The evidence met each condition in section 23(2) of the Criminal Appeal Act 1968: it was capable of belief, could potentially afford a ground for allowing the appeal, would have been admissible at trial, and there was a reasonable explanation for its earlier absence.

2. The decisive question was whether the material caused the court to doubt the conviction’s safety. That required consideration of the issue before the jury and any available indication of its reasoning, but the essential inquiry remained whether the new material raised a reasonable doubt that the appellant would or should have been convicted had the jury considered it. The court applied the approach described in R v Ahmed [2010] EWCA Crim 2899 and Bain v R [2007] UKPC 33.

3. The new evidence did not establish how or when the deceased’s DNA, or blood, came to be deposited on the trainer. It did not support an inference that Waddington participated in the fatal assault or was necessarily close to the deceased when he was strangled. At its highest, it demonstrated proximity to a bleeding person while he was being struck, which was consistent with both accounts at trial.

4. The evidence added little to matters already before the jury. The jury had been directed to scrutinise Waddington’s credibility carefully, including her lies about clothing and the washing of garments. The court also had to consider the appellant’s admitted violence, his explanations, his false accounts, and his conduct after the killing. Taken as a whole, the fresh evidence did not raise a reasonable doubt about the verdict.

• Court of Appeal (Criminal Division)—following a Criminal Cases Review Commission reference, admitted the fresh evidence but dismissed the appeal: [2011] EWCA Crim 17.
• Court of Appeal (Criminal Division)—refused the appellant’s renewed application for leave to appeal conviction on 11 May 2009.
• Crown Court at Newcastle upon Tyne—convicted the appellant of murder by a majority verdict on 31 July 1998 and imposed life imprisonment.