Daviesi, R. v

A summing-up is not unfair or biased merely because it reviews the prosecution evidence at greater length, comments on the limited value of an exhibit, or reads material already before the jury. The question is whether, viewed fairly as a whole, it sets out the competing cases fully and fairly.

Evidence directed only to collateral matters of credit may properly be excluded. Any exclusion will not render a conviction unsafe where the material has negligible value and could not conceivably have affected the verdict.

The applicant was convicted, after a retrial at Swansea Crown Court, of indecent assault and assault of a child under 13 by penetration. He received concurrent sentences of two and four years’ imprisonment.

After a single judge refused permission, he renewed his application for leave to appeal against conviction. He maintained that the trial judge’s summing-up was unfairly weighted towards the prosecution and that relevant defence evidence had wrongly been excluded. The disputed evidence concerned photographs of a room, an alleged remark by one complainant to a witness, and unrelated incidents said to bear on credibility.

1. The renewed application for leave to appeal against conviction was dismissed. The summing-up, although unnecessarily long, was a full and fair rehearsal of the evidence and the competing cases. It did not amount to a plea for conviction or demonstrate bias.

2. The judge’s comments on the defence photographs did not state that they were of limited value as a matter of fact. He left their weight to the jury. Nor did the reading of text messages and a letter invite the jury to treat them as genuine. The judge expressly identified the prosecution and defence cases on their truthfulness.

3. The exclusion complaints disclosed no arguable unfairness. Photographs showing a room after it had been converted from a bedroom into a bathroom could have misled the jury, particularly as they were produced only after the complainant had given evidence. The alleged remark to BW had, at most, very slight value and its exclusion could not conceivably affect the safety of the convictions.

4. Evidence about unrelated alleged assaults involving other people was, at best, collateral credit material. The trial judge was entitled to prevent rebuttal evidence after the relevant witnesses denied the incidents. The rationale in R v Busby did not assist because that case concerned rebutting evidence given by police officers investigating the alleged offences.

5. The court also observed that the sentence was unlawful because Criminal Justice Act 2003 section 236A required an additional year’s licence. It had no power to correct that error in the present application.

• Court of Appeal (Criminal Division): Renewed application for leave to appeal against conviction dismissed: [2018] EWCA Crim 2566.
• Crown Court at Swansea: Following a retrial, the applicant was convicted on 24 November 2017 of indecent assault and assault of a child under 13 by penetration. He was sentenced on 15 December 2017.
• Single judge: Permission to appeal against conviction was refused, leading to the renewed application.