Noye, R. v

On a criminal appeal based on fresh evidence, the Court of Appeal must assess that evidence in the context of the case as a whole and decide for itself whether the conviction is unsafe. The likely effect on the trial jury is a prudent cross-check, not the primary question. A subsequent loss of an expert witness’s standing does not of itself make a conviction unsafe. The court must examine the precise importance of the evidence and the remaining evidence at trial.

Self-defence permits force reasonably necessary in the circumstances as the defendant believed them to be. Deliberate fatal knife force will only exceptionally be proportionate and is a last resort.

The appellant had been convicted of the murder of Stephen Cameron at the Central Criminal Court in 2000 and sentenced to life imprisonment. His first appeal against conviction was dismissed in 2001.

The Criminal Cases Review Commission referred the conviction on grounds concerning the later discrediting of the prosecution pathologist, Dr Heath, and fresh material relating to bruising on the deceased’s knuckles. The central trial issue had been self-defence. The appellant accepted that he deliberately stabbed the deceased twice, but asserted that he acted in panic and fear of serious harm.

The court considered whether the fresh medical material, the later concerns about Dr Heath, and the previously raised disclosure issue concerning an eyewitness rendered the conviction unsafe.

1. The appeal was dismissed. On an appeal involving fresh evidence under section 23 of the Criminal Appeal Act 1968, the court itself must evaluate the evidence against the rest of the case and decide whether the conviction is unsafe. The question whether the evidence might reasonably have affected the jury is a useful check in a difficult case, but not the primary inquiry. This followed the approach in Stafford v DPP [1974] AC 878, R v Pendleton [2002] 1WLR 72 and Dial and another v State of Trinidad and Tobago [2005] 1WLR 1660.

2. Dr Heath’s later discrediting did not retrospectively make his trial evidence inadmissible or automatically make the conviction unsafe. Its value as expert evidence was inevitably diminished, but the court had to assess its precise significance in this case. That was consistent with R v O’Leary [2006] EWCA Crim 3222.

3. The fresh evidence of Dr Cary had changed materially on important issues. It added nothing significant to the evidence already given at trial by the other pathologists. Having heard it de bene esse, the court concluded that the interests of justice did not require its admission.

4. The disputed pathology did not bear materially on the decisive self-defence issue. The appellant deliberately opened a knife after a break in the fight, returned to an unarmed man and inflicted two deliberate stab wounds. Even accepting his account of panic, the force used was wholly disproportionate. He had alternatives, including leaving, seeking assistance or discarding the knife. The medical evidence therefore did not undermine the safety of the verdict. R v Laverick [2007] EWCA Crim 1750 was materially different because, in that case, Dr Heath’s evidence was crucial to whether the fatal injury was deliberate or accidental.

5. The earlier disclosure complaint concerning the eyewitness Decabral was separate from the pathology issue. There was no cumulative effect capable of making the conviction unsafe.

• Court of Appeal (Criminal Division) On a reference by the Criminal Cases Review Commission, dismissed the renewed appeal against conviction.
• Court of Appeal (Criminal Division) Dismissed the appellant’s first appeal against conviction on 10 October 2001.
• Central Criminal Court Convicted the appellant of murder on 14 April 2000 and imposed life imprisonment.