R v Peter Sullivan

The Court of Appeal must have regard to whether proposed fresh evidence is capable of belief, may afford a ground for allowing the appeal, would have been admissible at trial and has a reasonable explanation for its absence. Recent scientific developments may provide that explanation.

Fresh DNA evidence identifying an unknown man as the likely source of semen deposited during a sexual attack may make a murder conviction unsafe where there is no evidence of more than one assailant or consensual activity. Other evidence must be reassessed in that context, although it may not independently justify allowing the appeal.

The appellant was convicted of murder in 1987 and remained in custody. Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the reference took effect as an appeal against conviction.

He sought to adduce fresh evidence concerning DNA recovered from the victim’s body, bite-mark evidence and the reliability of police confessions. The DNA evidence indicated that semen recovered from the victim came from an unknown man who was neither the appellant nor the victim’s fiancé. The central questions were whether the evidence should be admitted under section 23 of the Criminal Appeal Act 1968 and whether the conviction remained safe.

1. The court received the fresh DNA evidence under section 23 of the Criminal Appeal Act 1968. The evidence was capable of belief, potentially afforded a ground for allowing the appeal, would have been admissible at trial, and its absence was reasonably explained by scientific and technical developments.
2. The evidence strongly indicated that the attacker had deposited the semen. There was no evidence of more than one man being involved or of consensual sexual activity. In light of the unknown man identified by the DNA evidence, the circumstantial case which had appeared strong in 1986 was no longer sufficient. The respondent accepted that, had the evidence then been available, it would have been insufficient even to charge the appellant.
3. The bite-mark and confession evidence did not independently justify admitting the proposed fresh evidence or allowing the appeal. The bite-mark evidence had been fully addressed at trial and on the first appeal. The new evidence did not materially alter the earlier conclusion. Much of the psychological report concerning the confessions was of doubtful admissibility and added nothing substantial to the evidence previously considered.
4. Nevertheless, the DNA evidence weakened every strand of the circumstantial case, including the bite-mark and confession evidence. The conviction was unsafe. Grounds 2 and 3 were rejected, but ground 1 was allowed, the conviction was quashed and the appellant was released. The respondent did not seek a retrial.

• Court of Appeal (Criminal Division): Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, the reference operated as an appeal against the 1987 conviction. The court allowed the appeal on the DNA ground, rejected the bite-mark and confession grounds, quashed the conviction and ordered release. No retrial was sought.