Christian, R v

Fresh expert evidence should not be received where it carries no real weight, addresses matters within the jury’s ordinary assessment, and could have been obtained and deployed at trial. Section 23 of the Criminal Appeal Act does not permit an appellant to re-litigate an issue after an informed forensic choice or to improve an alternative case retrospectively.

When considering an intermediary’s conduct, the decisive question is whether it created a serious risk of unfairness. Physical reassurance to a distressed and vulnerable witness did not render the trial unfair where the jury could understand the circumstances and received effective directions to decide the evidence without sympathy.

The appellant was convicted after a re-trial at the Central Criminal Court of two counts of rape and was sentenced to 14 years’ imprisonment. The Crown relied in part on DNA evidence showing the appellant’s semen on the complainant’s duvet cover. The appellant denied the offences and advanced an earlier innocent explanation for the transfer of semen.

On appeal, he sought to adduce a further DNA expert report concerning the distribution of semen on the bedding. He also contended that an intermediary who assisted the vulnerable complainant gave excessive physical support during her evidence, and that the judge’s direction on sympathy was inadequate.

1. Appeal dismissed. Neither ground undermined the safety of the convictions.
2. The proposed fresh report should not be admitted under section 23 of the Criminal Appeal Act. The expert accepted material uncertainty about the position and movement of the bedding during a prolonged assault. His view did not add materially to the trial expert’s evidence that the appellant’s account was a possible explanation for the semen stains. The disputed significance of the bedding was essentially for the jury’s assessment, and the new evidence had extremely limited weight.
3. Trial counsel had made an understandable tactical decision to rely on the limited evidence of the Crown expert rather than deploy the earlier defence report. Section 23 was not a means of re-litigating matters which could and should have been addressed at trial, advancing a new theory after the event, or improving the presentation of a case in hindsight.
4. The intermediary guidance required neutrality and made clear that an intermediary was not a witness supporter. However, the material appellate question was whether the conduct created a serious risk of unfairness, rather than simply whether it exceeded the guidance. The physical support given to an evidently distressed and vulnerable complainant enabled her to continue her evidence and was unlikely to have had an undue impact on the jury.
5. Both counsel addressed the need for an objective assessment, and the judge gave a clear direction that sympathy must not cloud the jury’s judgment of the complainant as a witness. There was no sensible prospect that the intermediary’s conduct or the direction caused unfairness. The convictions therefore remained safe.

• Court of Appeal (Criminal Division) Dismissed the appellant’s appeal against conviction.
• Central Criminal Court In late 2013, following a re-trial, convicted the appellant of two counts of rape and sentenced him to 14 years’ imprisonment.