Xie v The Crown

On a fresh-evidence appeal, the decisive question under Criminal Appeal Act 1968, s. 23 is whether the conviction is unsafe in the light of all the evidence. New expert evidence may be credible and admissible without rendering a conviction unsafe.

Medical evidence of a healed hymenal injury must be assessed with the medical history and the limits of the expert opinion. Evidence that supports prior penetrative injury does not, without more, prove rape or identify the person responsible. A difference between describing such evidence as diagnostic or strongly supportive will not make a conviction unsafe where the jury was not misled as to what the evidence established.

The appellant was convicted at the Crown Court at Southwark of raping a 15-year-old girl and was sentenced to ten years’ imprisonment. An earlier appeal was unsuccessful: [2010] EWCA Crim 912.

The Criminal Cases Review Commission referred the conviction after obtaining new expert evidence about a healed hymenal transection. The new expert considered that the trial evidence had overstated the extent to which the injury established sexual penetration. The central issue was whether that evidence made the conviction unsafe.

1. Appeal dismissed. Applying s. 23 of the Criminal Appeal Act 1968, the court accepted that the new evidence of Dr Pillai was capable of belief and would have been admissible. The ultimate question remained whether, in the light of that evidence and all the circumstances, the conviction was unsafe.

2. The court held that Dr Aziz’s evidence was not materially inaccurate or misleading. Both experts agreed that the complete posterior hymenal transection was strongly supportive of penetrating trauma. Sexual penetration was the usual cause, while non-sexual causes were rare. The medical and personal history excluded any evidence of an accident, prior object penetration, or tampon use capable of explaining the injury.

3. In that context, describing the finding as diagnostic did not mislead the jury. The judge’s summing-up accurately conveyed that the injury showed the hymen had been overstretched and penetrated by something. The evidence did not prove that the appellant raped the complainant, nor could it distinguish intercourse with the appellant from intercourse with another person.

4. The medical evidence was largely background to the central credibility contest. The complainant’s account of burning on urination was, however, consistent with a first hymenal rupture. The surrounding uncontested evidence also strongly undermined the appellant’s account. The new evidence therefore afforded no ground for allowing the appeal and did not render the conviction arguably unsafe.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, dismissed the further appeal against conviction.

• Court of Appeal (Criminal Division): An earlier appeal following conviction was unsuccessful: [2010] EWCA Crim 912.

• Crown Court at Southwark: On 29 October 2008, the appellant was convicted of rape and sentenced to ten years’ imprisonment, less time spent on remand.