R v Aaron Stephen Jackson

Fresh evidence may render a conviction unsafe where it is capable of belief, may not have been readily available at trial, and could materially affect the jury’s assessment of credibility. Its significance is not confined to the issue to which it directly relates. Evidence disproving a material assertion made by a complainant, or supporting an assertion made by an appellant, may bear on the jury’s overall assessment of both witnesses’ credibility. Where that assessment was central to the verdict, the Court of Appeal may admit the evidence under section 23 of the Criminal Appeal Act 1968, allow the appeal, and order a retrial.

The appellant was convicted by a majority of 10:2 of rape following a trial in which the complainant denied any post-incident contact with him. The appellant initially denied intercourse, but shortly before trial advanced a case of consensual intercourse. He maintained that there had been later Facebook contact.

After conviction, a mobile telephone discovered fortuitously among his possessions revealed Facebook messages between the parties from June and July 2016. The messages showed continued friendly contact. The appellant applied to adduce them as fresh evidence under section 23 of the Criminal Appeal Act 1968.

The central issue was whether the messages, although not directly addressing the intercourse, could afford a ground for allowing the appeal by affecting the jury’s assessment of credibility.

1. Appeal allowed. The court admitted the Facebook messages as fresh evidence under section 23 of the Criminal Appeal Act 1968, held that the conviction was unsafe, and ordered a retrial.

2. The messages were capable of belief. The prosecution accepted their apparent authenticity and admissibility. Although a technically competent person could have accessed them earlier, their post-trial discovery was fortuitous. There was no apparent reason for the appellant or his family to have concealed material that did not disadvantage him.

3. The court was satisfied that the evidence may not have been readily available at trial. It took account of the appellant’s documented traumatic brain injury and poor short-term memory when considering the explanation for the failure to adduce it, including under section 23(2)(d).

4. The messages afforded a ground of appeal because credibility was central at trial. The prosecution had relied on the alleged absence of later contact to attack the appellant’s account, while the complainant had denied such contact. The messages were therefore pertinent to the jury’s general assessment of the credibility of both parties, even though they did not refer to the intercourse or directly resolve whether the complainant had been asleep.

5. The court ordered a retrial, subject to confirmation of whether the complainant would give evidence. A fresh indictment was to be served within 28 days, with re-arraignment within two months. Any bail application was to be made to the Crown Court.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 467, the court admitted fresh evidence, allowed the appeal against conviction, held the conviction unsafe, and ordered a retrial.
• Trial court: On 29 April 2021, a jury convicted the appellant of rape by a majority of 10:2. The judgment does not identify the trial court.