Dunn & Anor v R

On a criminal conviction appeal, fresh evidence and undisclosed material bearing on a central prosecution witness’s credibility must be assessed cumulatively with the whole of the trial evidence. A conviction is unsafe where the material could realistically have led the jury to take a different view of the witness and of the prosecution case. The existence of other material available to challenge the witness, or independent evidence against an appellant, does not remove the potential importance of proper disclosure. Where the statutory conditions are met, fresh evidence may be admitted under section 23 of the Criminal Appeal Act 1968; a conviction must then be quashed if its safety cannot be affirmed.

Dunn and Higgins were convicted of murder at Birmingham Crown Court before Underhill J in 2006. Dunn’s first appeal against conviction was dismissed in 2009: [2009] EWCA Crim 1371. Higgins had not then appealed.

The Criminal Cases Review Commission referred Dunn’s case after further material emerged concerning Maria Vervoort, a prosecution witness whose evidence was central to the case against both appellants. Higgins sought an extension of time and leave to appeal on substantially the same grounds. The new material included serious failures to disclose records bearing on Vervoort’s credibility and evidence establishing that she had falsely alleged a meeting with Conrad Jones in separate criminal proceedings.

The central issue was whether the fresh evidence and disclosure failures rendered the murder convictions unsafe.

Appeals allowed; convictions quashed. The court admitted the fresh evidence, granted Higgins an extension of time and leave to appeal, and could not be satisfied that either conviction was safe.

1. The requirements of section 23 of the Criminal Appeal Act 1968 were satisfied. The new material was capable of founding a ground of appeal and was directly relevant to the reliability of the evidence against both appellants.
2. The prosecution had failed to disclose material from the Criminal Justice Protection Unit and the police notes of Vervoort’s initial accounts. Those materials were potentially important to her truthfulness and to whether she had originally mentioned discussion of a shooting. They should have been available to the defence in challenging a witness whom the trial judge had identified as central to the prosecution case.
3. The court accepted that Vervoort had lied at Conrad Jones’s 2007 trial about a face-to-face meeting on 1 or 2 June 2006. It agreed with the observations in R v Conrad Steven Jones [2014] EWCA Crim 1337 that this issue could not be separated from an assessment of her credibility generally. That lie was materially different from the earlier examples of dishonesty considered at trial and on Dunn’s first appeal.
4. The court assessed the new material together with the evidence at trial. It noted the broad similarity with Laing [2005] EWCA Crim 2772, where undisclosed credibility material had deprived the defence of a more effective cross-examination and rendered convictions unsafe. The disclosure failures also bore directly on the fairness of the trial and appeal process.
5. Vervoort’s account was fundamental to the allegation that Dunn had actively participated in the plan to shoot Bailey. Although there was stronger independent evidence against Higgins, her evidence also implicated him in that plan. It was realistically possible that a properly informed jury would have viewed both cases differently.

The court therefore quashed both murder convictions.

1. Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference in Dunn’s case, the court admitted fresh evidence. It granted Higgins an extension of time and leave to appeal, allowed both appeals, and quashed the convictions: [2016] EWCA Crim 1392.
2. Court of Appeal (Criminal Division): Dunn’s first appeal against conviction was dismissed: [2009] EWCA Crim 1371.
3. Birmingham Crown Court: Before Underhill J and a jury, Dunn and Higgins were convicted of murder on 20 July 2006.