Deeney, R. v

A criminal trial is not rendered unfair merely because a material witness refuses to testify where the defendant has a fair opportunity to place that witness’s available statements before the jury and knowingly declines it. A self-represented defendant remains responsible for informed tactical choices unless there is evidence that a genuine misunderstanding or incapacity prevented a rational choice.

Fresh evidence under section 23 of the Criminal Appeal Act 1968 will not ordinarily be admitted where it was available at trial but was deliberately not called, particularly where it does not materially assist the safety of the convictions.

The appellant was convicted at Lincoln Crown Court of two counts of wounding with intent. One complainant, Mr Stephenson, refused to give evidence. The appellant, who represented himself, declined both the opportunity to have Mr Stephenson’s statements read and the opportunity to call his remaining witnesses before hearing from Mr Stephenson.

He appealed on the basis that the trial was unfair and the convictions unsafe. He relied on the absence of Mr Stephenson, the trial judge’s handling of contempt proceedings and information from the prison concerning the witness’s continuing refusal to testify. He also renewed an application to adduce three witness statements as fresh evidence under section 23 of the Criminal Appeal Act 1968.

1. Appeal dismissed. The convictions were safe. The renewed applications, including that to adduce fresh evidence, were refused.

2. The earlier judge had made no ruling that count 1 could not proceed without Mr Stephenson, and the Crown had given no undertaking not to proceed. His earlier comments properly reflected concern that Mr Stephenson should be brought to court, rather than a final finding that a trial in his absence would be an abuse of process.

3. The appellant had a fair opportunity to rely on Mr Stephenson’s statements. Their contents, particularly the first statement, could have assisted the defence and could have provided a basis for further cross-examination of Ms Bee. The appellant knowingly rejected their being read because he insisted on obtaining the unavailable opportunity to cross-examine Mr Stephenson in person. That tactical choice did not make the prosecution’s reliance on Ms Bee’s honest evidence unfair.

4. The court rejected the submission that the appellant’s self-representation, obsession or irrationality deprived him of a fair trial. He had conducted effective cross-examination and understood the issues available to him. A claim on appeal that an unrepresented defendant could not rationally assess his interests required evidence from that defendant explaining the misunderstanding and permitting examination of it; submission and inference alone were insufficient.

5. The trial judge’s separate contempt proceedings against Mr Stephenson, conducted without the appellant because of dock-security arrangements, caused no unfairness. Nor was it improper to act on the prison’s information that Mr Stephenson would not testify for either side, since the judge had already heard the witness make his refusal unequivocally clear.

6. The proposed fresh evidence had been available at trial and had deliberately not been called. It was principally a commentary on CCTV material and did not assist on the first count or materially undermine the prosecution case. It was therefore neither necessary nor expedient in the interests of justice to admit it under section 23 of the Criminal Appeal Act 1968.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed, and the renewed application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968 was refused.

• Crown Court at Lincoln: Before Mr Recorder Sampson, the appellant was convicted on 11 December 2009 of two counts of wounding with intent to cause grievous bodily harm and sentenced to imprisonment for public protection with a minimum term of eight years.