Mayende & Ors, R v

Disclosure failures do not render convictions unsafe unless, viewed against the real issues at trial, they had a material effect on their safety. Broad or speculative complaints, including assertions that other possible offenders should have been investigated, will not suffice where the evidence identifies the relevant assailants and the alleged material could not realistically assist the defence.

Fresh evidence should not be received where it has no prospect of affecting the safety of the conviction. A convicted defendant cannot ordinarily secure a further trial by advancing a different account after conviction. On sentence, the appellate court assesses the overall term and totality; excessive individual terms do not require intervention if the total sentence is within the sentencer’s legitimate discretion and is not manifestly excessive.

The four applicants, serving members of the armed forces, were convicted by a Court Martial at the Military Court Centre, Sennelager, of kidnapping, sexual assault, theft and assault occasioning actual bodily harm. Lee had pleaded guilty to the assault charge on a limited basis. Each received a sentence of imprisonment and dismissal with disgrace.

They appealed against conviction and sentence. Leave to appeal against conviction was granted on grounds concerning police investigation and disclosure failures. Lee, Muir and Field also sought to adduce fresh evidence concerning statements allegedly made by Mayende after conviction and an alleged remark by a Board member. The central questions were whether the disclosure failures or proposed fresh evidence rendered the convictions unsafe, and whether the overall sentences were manifestly excessive.

1. Appeals dismissed. The convictions were safe and the total sentences were not manifestly excessive.
2. The court accepted that disclosure had a seriously unsatisfactory history. Investigators had on occasion failed to make or retain contemporaneous records of potentially relevant material, contrary to paragraphs 4 and 5 of the applicable Code. The correct appellate question, however, was whether the failures rendered the convictions unsafe.
3. They did not. The alleged failures had no material impact when considered against the actual issues and evidence at trial. The suggested alternative attackers were irrelevant and there was no credible evidential basis for saying that another group had attacked the complainant. The accused themselves placed relevant participants in the alleyway, and two accepted substantial parts of the attack. Other complaints about CCTV, scene photographs, altered witness statements, unrecorded conversations and late medical notes either had been revealed during trial or could not have impaired the defence.
4. The proposed fresh evidence was neither necessary nor expedient in the interests of justice. Mayende could have altered his account before the trial ended. His later alleged admission, including inconsistent accounts of Muir’s involvement, had no prospect of affecting the convictions’ safety. The alleged post-trial remark by a Board member was inappropriate if made, but was ambiguous and did not establish bias, predetermination or misconduct.
5. Although the court accepted that the individual sexual-assault sentences were arguably excessive when compared with the relevant guideline bracket, the total terms of eight and seven years were within the judge’s legitimate discretion. The sustained, random and jointly perpetrated violence, robbery and sexual humiliation had profound consequences for the complainant. The overall sentences complied with totality and were not manifestly excessive.

• Court of Appeal (Criminal Division): Appeals from convictions and sentences imposed by the Court Martial were dismissed.
• Court Martial: At the Military Court Centre, Sennelager, Judge Hunter (Vice Judge Advocate General) and a military board convicted the applicants, save for Lee’s guilty plea to assault occasioning actual bodily harm.