R v Wilson

A contemporaneous medical letter may be admitted as relevant hearsay where its author is deceased and the jury receives clear directions about its limitations. An appellate court will interfere with a refusal to exclude evidence under section 78 only where the trial judge’s discretion was exercised in the Wednesbury sense unreasonably.

Evidence of an allegation that a complainant was under investigation for theft is bad-character evidence. It must satisfy the statutory gateways and have substantial probative value. Fresh evidence requires a multifactorial assessment under section 23(2), including diligence, credibility and whether it could afford a ground for allowing the appeal.

The appellant was convicted at Newcastle Crown Court of indecent assault and two counts of rape of his stepdaughter, W, committed when she was aged 14 and 15. He received a total sentence of 17 years’ imprisonment.

He appealed against conviction on the grounds that the trial judge had wrongly admitted a deceased gynaecologist’s letter, excluded evidence concerning W’s later attendance at a police station, and that fresh evidence from his cousin should be received. He also renewed his application for permission to appeal against sentence.

The central issues were whether the convictions were unsafe and whether the sentencing judge was entitled to treat the offending as a campaign of rape.

1. Appeal against conviction dismissed; renewed application for permission to appeal against sentence refused. The evidence against the appellant was particularly strong. None of the three grounds undermined the safety of the convictions.

2. The gynaecologist’s contemporaneous letter was admissible under sections 116 and/or 117 of the Criminal Justice Act 2003. It recorded observations rather than expert opinion. Its author was dead, it was relevant to the nature of the relationship between W and the appellant, and the appellant could not recall the appointment so suffered minimal prejudice from the absence of cross-examination.

3. The judge was also entitled not to exclude the letter under section 78 of the Police and Criminal Evidence Act 1984. The jury received careful directions on the letter’s limitations and on the need to assess it with the other evidence. Applying R v O’Leary (1988) 87 Criminal Appeal Reports 387, appellate intervention was available only for Wednesbury unreasonableness. The judge’s decision was plainly open to him.

4. The proposed police-station evidence was properly treated as bad-character evidence. An allegation that W was under investigation for theft engaged sections 98, 100 and 112 of the Criminal Justice Act 2003. It lacked substantial probative value and substantial importance. In any event, it added little to the extensive evidence of post-abuse contact between W and the appellant and did not make the convictions unsafe.

5. The proposed fresh evidence did not satisfy the relevant section 23(2) considerations in the Criminal Appeal Act 1968. There was no reasonable explanation for failing to call the appellant’s cousin at trial. Although her limited evidence about paternity was capable of belief, it added little to the existing conflicting evidence and afforded no ground for allowing the appeal.

6. The sentencing judge was entitled to find a campaign of rape, to categorise the specimen count as A1, and to adopt a starting point above 20 years. The 17-year sentence properly reflected mitigation, including the appellant’s youth at the time of offending and prison conditions. The concurrent eight-year term for the first rape was immaterial to the overall sentence.

• Court of Appeal (Criminal Division). The appellant’s conviction appeal was dismissed and his renewed application for permission to appeal against sentence was refused: [2022] EWCA Crim 1438.

• Newcastle Crown Court (HHJ Earl). On 27 October 2021, the appellant was convicted of indecent assault and two counts of rape and sentenced to 17 years’ imprisonment.