R v Stuttle [2025] EWCA Crim 256: Undisclosed Items Found Within Exhibits During Jury Deliberations as “New Evidence” Rendering Convictions Unsafe

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1. Introduction

The decision in R v Stuttle [2025] EWCA Crim 256 is a significant Court of Appeal authority on what happens when a jury, during its deliberations, discovers previously unknown material inside an exhibit. The case clarifies:

• that such material may constitute “new evidence” introduced after retirement, even though it is physically part of an existing exhibit; and
• that where that material is potentially important, and the defendant has no opportunity to address it and the judge gives no direction about it, any resulting conviction is likely to be unsafe.

The appeal arose from a trial in the Crown Court at Southampton, where the appellant, Nicholas Stuttle, was convicted of:

• dangerous driving; and
• aggravated vehicle taking.

The central trial issue was the identity of the driver of a stolen Lexus involved in a high-speed, highly dangerous pursuit. A grey hooded top (“hoodie”) was said to have been worn by the driver and was later found near where the appellant was arrested. Only after the jury retired did jurors discover a bank card inside the hoodie, in the name of a person they believed to be the appellant’s partner. This discovery lay at the heart of the appeal.

The Court of Appeal (Lewis LJ giving the judgment of the court) was required to determine:

• whether the discovery of the bank card amounted to the introduction of “new evidence” after the jury had retired; and
• whether, in the circumstances, the conviction was unsafe under section 2 of the Criminal Appeal Act 1968.

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2. Factual Background

2.1 The incident and the police pursuit

On 30 June 2022, a red Lexus was stolen from outside the owner’s home. About 24 hours later, in the early hours of 1 July 2022, the vehicle was spotted on the M27. Police in a marked car gave chase, and an unmarked vehicle driven by Inspector Kirby, with PC Gibbs as passenger, took over as the lead pursuit car.

The Lexus was driven in a highly dangerous manner:

• through red lights at high speed;
• on the wrong side of the road;
• through residential areas far in excess of the speed limit.

The pursuit was captured on police dash-cam footage. The Lexus eventually came to a stop at the end of a road called Monks Way. The driver:

• immediately exited from the driver’s door;
• ran down a wooded path;
• turned right; and
• appeared to slip on a muddy surface before getting up and running on.

On the audio commentary, Inspector Kirby described the driver as:

• wearing a grey hoodie, shorts and trainers;
• a white, muscular male.

2.2 The appellant’s arrest and the grey hoodie

PC Gibbs chased the fleeing driver on foot but lost sight of him after the right turn. When he entered a nearby churchyard, he saw the appellant, Nicholas Stuttle, emerging from bushes. The appellant was arrested at 1.05 am.

During a search of the area:

• a grey hooded jumper (the “hoodie”) was found by PC Burton;
• Burton handed it to Gibbs;
• Burton made no witness statement and did not give evidence at trial;
• the hoodie was not forensically examined or even searched by the police.

2.3 The prosecution case at trial

The appellant was charged with dangerous driving and aggravated vehicle taking. The critical issue in both counts was who was driving the Lexus. The prosecution contention was that the appellant was the driver wearing the grey hoodie.

The key elements of the prosecution case on identification were:

1. Description by Inspector Kirby: the driver was a white, muscular male wearing a grey hoodie, shorts and trainers, as seen on the dash-cam and heard in real time commentary.
2. Evidence of PC Gibbs: he chased the fleeing driver, then, shortly afterwards, encountered and arrested the appellant in the churchyard near where the driver had fled.
3. Presence and location: the appellant was found in the immediate vicinity of the abandoned Lexus at around 1.00 am, emerging from bushes close to where the grey hoodie was discovered.
4. Inconsistencies in the defence account: discrepancies between:
   • the appellant’s Defence Statement (setting out his version of where he had been that night); and
   • his oral evidence at trial.

In essence, the Crown invited the jury to infer that the man in the grey hoodie who ran from the Lexus was the appellant.

2.4 The defence case

The appellant gave evidence denying he was the driver. His account was that:

• he had been at his girlfriend’s (named as “Ellie”) watching a film;
• he then went to see his father;
• later he went with a friend to a kebab shop; and
• after that, he went into woodland with drugs in his possession.

In the woods he claimed to have:

• seen two people running – first a man, then a police officer (PC Gibbs);
• dropped his drugs; and
• panicked because of the drugs, telling Gibbs that he was “out for a jog”.

When shown the grey hoodie (inside its exhibit bag) in the witness box, he said he did not recognise it and had never seen it before. The defence also emphasised that there was:

• no DNA or fingerprint evidence linking the appellant to the car; and
• no forensic examination at all of the hoodie.

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3. The Jury’s Discovery of the Bank Card

3.1 The jury retires

After counsels’ speeches and the judge’s summing-up, the jury retired at 12:40 pm to consider their verdicts. They took the grey hoodie with them as an exhibit in an exhibit bag.

3.2 The jury note

At 14:06 a note from the jury prompted the parties to be called back into court; the judge came in at 14:19 and read the note, which stated:

“On examination of the hoody, we identified mud marks consistent with falling into mud on the right cuff. Plus, the bag and hoody was previously not turned as the arms were inside out. On our check we found a bank card belonging to Miss Ellie May Faulds that we believe belongs to the partner of the Defendant.”

Two points were immediately apparent:

• the jury had further examined the physical exhibit (including turning sleeves which had been inside out); and
• they had discovered a previously unknown item – a bank card in the name of “Miss Ellie May Faulds”, a name which they thought matched the appellant’s girlfriend (“Ellie”).

Defence counsel noted that the full name of the girlfriend had not been mentioned in evidence – only “Ellie”. This indicated that the jurors were themselves connecting the bank card to the appellant by inference, not by anything said in court.

3.3 Application to discharge the jury

At 14:52, after taking instructions, defence counsel applied to discharge the jury. She relied in particular on:

• Archbold (2024 ed.) guidance on inadmissible prejudicial material inadvertently seen by a jury;
• R v Docherty [1999] 1 Cr App R (S) 274, concerning the test for discharge where prejudicial material has reached the jury; and
• the fact that:
  • the hoodie had not been searched or examined by the police;
  • the bank card had never been disclosed or adduced in evidence;
  • the defence had had no chance to investigate or address it.

The prosecution fairly accepted that the hoodie had not been examined before being bagged and that the defence had correctly set out the legal position on jury discharge.

3.4 The judge’s ruling and the timing problem

The trial judge began to give his ruling on the discharge application. Notably, he said:

• the jury were “entitled to see” the hoodie as an exhibit;
• it was “lamentable” that it had not been searched by anyone in authority;
• he considered the hoodie important because it potentially connected the appellant to the driver seen in the dash-cam decamping and falling over.

Crucially, at the point recorded in the transcript as a pause, the judge appears not yet to have announced a final decision. The transcript then records him saying:

“The jury, having retired, I have now received information that they have reached verdicts. I do not intend to discharge this jury.”

The jury were then brought in and delivered guilty verdicts on both counts, without any judicial direction about the bank card or how, if at all, it should feature in their deliberations.

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4. Summary of the Court of Appeal’s Judgment

The Court of Appeal allowed the appeal and quashed both convictions.

4.1 Central ground of appeal

The principal ground was that the convictions were unsafe because:

• the jury had, during deliberations, discovered and considered new evidence (the bank card);
• this evidence was potentially significant on the key issue of identity; and
• the appellant had no proper opportunity to address this material, and the judge gave the jury no direction at all regarding it.

4.2 The legal framework

The Court reaffirmed the long-established principle (derived from R v Davis (1976) 62 Cr App R 194 and subsequent cases) that:

once the jury has retired, they should not be given any additional evidence or new material to assist them in reaching a verdict, subject only to limited and strictly controlled exceptions which did not apply here.

The Court applied the twin tests articulated in R v Deny [2013] EWCA Crim 481, drawing on R v Thompson [2010] Cr App R (S) 27 and R v Lawson [2007] 1 Cr App R 20:

1. Extraneous material / fairness test (Thompson) – does the material introduced strike at the fairness of the trial because the jury has considered material adverse to the defendant with which he has had no, or no proper, opportunity to deal?
2. “Most prejudicial interpretation” test (Docherty / Lawson) – considering the most prejudicial interpretation of the misstep and its possible effect on the jury, are the convictions nevertheless safe?

4.3 New evidence and its impact

The Court held that the bank card was, in substance, new evidence:

• although the hoodie was a trial exhibit, the bank card:
  • had never been mentioned in evidence;
  • was not “intrinsically linked” to the hoodie; and
  • was only discovered by the jury during their own physical examination.
• this situation was materially similar to R v Kaul (summarised in [1998] Crim LR 135), where jurors found previously unseen items inside a rucksack exhibit.

The Court regarded the bank card as both:

• new evidence introduced after retirement; and
• potentially significant evidence, because:
  • the sole live issue was who had been driving;
  • the driver had been wearing a grey hoodie;
  • a grey hoodie was found near where the appellant was arrested; and
  • a bank card apparently belonging to the appellant’s partner inside that hoodie would considerably strengthen the link between appellant and hoodie, and hence appellant and driver.

The Court noted that the jury clearly thought this discovery important, as evidenced by their note recording both the mud-mark (consistent with the slip seen on the dash-cam) and the name on the card, and explicitly linking the name to the appellant’s partner.

4.4 Fairness and the absence of judicial safeguards

Three factors led the Court to conclude that the convictions were unsafe:

1. Significance of the new material – the bank card, viewed in context, was capable of being powerful corroborative evidence on identity.
2. No opportunity for the appellant to answer it – the appellant:
   • was never asked about the bank card;
   • had no forensic or factual opportunity to explain whether it was in fact his partner’s card, why it might have been in the hoodie, or to challenge continuity and chain-of-custody issues.
   The Court observed that even if the appellant ultimately had no convincing explanation, fairness required that he be given the opportunity to try.
3. No judicial direction to the jury – the judge:
   • did not direct the jury to ignore the bank card;
   • did not explain that it was not in evidence;
   • gave no guidance at all on how it should (or should not) be used.
   Through the accident of timing – jury note, instructions, submissions, and then word of a reached verdict – the judge never delivered any corrective or limiting direction.

Given these features, and applying the principles in Deny, Thompson, Lawson and Docherty, the Court held that the introduction of this new, untested material:

• struck at the fairness of the trial; and
• rendered the convictions unsafe.

4.5 Outcome

The Court of Appeal:

• allowed the appeal;
• held that the convictions for:
  • dangerous driving; and
  • aggravated vehicle taking
  were unsafe; and
• quashed both convictions.

(The judgment, as provided, concludes with the quashing of the convictions and does not set out any decision on whether a retrial was ordered; accordingly, no commentary is offered on that aspect.)

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5. Precedents and Their Influence

5.1 R v Davis (1976) 62 Cr App R 194 – core principle on post-retirement evidence

In Davis, after the jury had retired, an usher provided jurors with copies of a witness’s prior statement at their request, without the judge’s knowledge. That statement had, in substance, already been put to the witness in cross-examination, line by line, so its content was not new – but the manner and timing of its provision were improper.

The Lord Chief Justice articulated the principle relied on in Stuttle:

“The jury may not, when they have once retired to consider their verdict, be given any additional evidence, any additional matter or material to assist them. They can come back and ask the judge to repeat for their benefit evidence which has been given, but they cannot come back and ask for anything new and the judge must not allow them to have anything new.”

In Davis, despite the irregularity, the conviction was upheld because:

• the statement’s contents were already fully before the jury orally; and
• the written document added nothing material.

Influence on Stuttle:

• Davis supplied the key procedural rule – no new material after retirement – which the Court of Appeal in Stuttle applied.
• Stuttle goes further in the specific context of items within exhibits, clarifying what can count as “new evidence” in this sense.

5.2 R v Kaul (unreported; noted [1998] Crim LR 135) – items found inside an exhibit

In Kaul, two women were tried for possession of cannabis. A rucksack containing the drugs was produced as an exhibit. When the jury took the rucksack into the retiring room and examined it, they discovered:

• a wallet; and
• female sanitary items.

Those items had not formed part of the evidence. It transpired that the exhibit had not been properly retained overnight. The Court of Appeal stated (as summarised in the Criminal Law Review) that:

“the introduction of fresh evidence after a jury has retired should almost invariably lead to that jury being discharged”,

subject to rare exceptions, and quashed the conviction.

Influence on Stuttle:

• Kaul is directly analogous: jurors discovered previously unseen items inside an exhibit during deliberations.
• Stuttle adopts the same characterisation: the bank card found inside the hoodie is new evidence, just as the wallet and sanitary items were in Kaul, notwithstanding that the outer object (rucksack/hoodie) was an exhibit.
• The Court in Stuttle cites Kaul as authority for treating the contents of an exhibit, discovered for the first time by jurors, as fresh evidence.

5.3 R v Deny [2013] EWCA Crim 481 – framework for dealing with wrongly admitted material

In Deny, the appellant was tried for a drug conspiracy alongside others. After the jury retired, a juror spotted extra pages in one bundle referring to two counts to which a co-accused (Payne) had pleaded guilty. Those pages should have been removed from everyone’s bundles.

The trial judge:

• discharged the jury in relation to Payne;
• refused to discharge them for the remaining defendants; and
• directed the jury that the material relating to Payne’s guilty pleas was:
  • irrelevant to the other defendants;
  • to have “absolutely no bearing whatsoever” on them; and
  • to be completely ignored.

The Court of Appeal in Deny reviewed earlier authorities on extraneous material and articulated two key tests:

1. Thompson test – examine whether the extraneous material:
   • “strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal”; and
   • if not, the conviction may stand.
2. Lawson / Docherty test – applying the “most prejudicial interpretation” of the wrongly admitted material, and considering the judge’s steps to mitigate, are the convictions nonetheless safe?

Influence on Stuttle:

• Stuttle expressly adopts the reasoning from Deny, in turn importing the Thompson and Lawson tests.
• Unlike in Deny, where the trial judge gave clear, strong directions neutralising the improper material, in Stuttle there was no direction at all about the bank card.
• As a result, the “most prejudicial interpretation” of the card (as powerful corroboration of the appellant’s guilt) had to be assumed, with no judicial safeguard to counterbalance it.

5.4 R v Thompson [2010] Cr App R (S) 27 – extraneous material and fairness

Thompson concerned extraneous material inadvertently reaching the jury. The Court in Deny quoted and adopted its approach, which Stuttle also follows:

“If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe.”

Influence on Stuttle:

• The Court of Appeal in Stuttle uses this fairness-based test as a central lens for assessing the impact of the bank card.
• Because the appellant never had any chance to address the card or its significance, fairness was compromised.

5.5 R v Lawson [2007] 1 Cr App R 20 and R v Docherty [1999] 1 Cr App R (S) 274 – discharge and “most prejudicial interpretation”

Lawson (adopting Docherty) sets out the approach where wrongly admitted prejudicial material has reached the jury. The question is:

whether, given the error and the remedial steps taken, the appellate court is satisfied that the convictions are safe, and in assessing that, the judge should consider the “most prejudicial interpretation” of the material and its possible impact.

Influence on Stuttle:

• Lewis LJ explicitly refers to this approach.
• Given:
  • the highly incriminating potential of the bank card; and
  • the absence of any mitigating judicial direction,
  the “most prejudicial interpretation” could not be discounted, leading inexorably to the conclusion that the convictions were unsafe.

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6. The Court’s Legal Reasoning

6.1 Characterising the bank card as “new evidence”

The first crucial step in the Court’s reasoning was to decide whether the bank card was, legally, new evidence introduced after the jury’s retirement, or simply part of an existing exhibit.

Key considerations:

• The hoodie was unquestionably an exhibit and the jury were entitled to examine it.
• However:
  • the bank card had never been mentioned or adduced in evidence by either party;
  • the police had not discovered it, because they had not searched the hoodie;
  • the defence had therefore never had disclosure of it.
• The Court stressed that the card was not “intrinsically linked” to the hoodie in evidential terms – it was a separate item that might or might not relate to the appellant.

By analogy with Kaul, the Court held that such an undiscovered item inside an exhibit is, in substance, fresh evidence. That characterisation triggers:

• the Davis principle (no new evidence after retirement); and
• the fairness analysis under Deny, Thompson and Lawson.

6.2 Assessing significance in the context of the case

The Court then evaluated the contextual significance of the new material:

• The only real issue at trial was identity.
• The prosecution theory rested heavily on:
  • the grey hoodie worn by the driver; and
  • the grey hoodie found where the appellant was arrested.
• A bank card apparently belonging to the appellant’s partner inside that hoodie would, logically, be seen as:
  • linking the hoodie to the appellant’s personal circle; and
  • strongly supporting the inference that he had been the wearer and thus the driver.

The jury’s note showed they:

• linked the mud mark on the cuff to the slip seen on the dash-cam; and
• identified the named cardholder as “the partner of the Defendant”.

The Court considered this a clear indication that the jury treated the card as material and incriminating evidence.

6.3 Denial of opportunity to respond

The Court placed considerable emphasis on the absence of any opportunity for the appellant to respond to this new material:

• the card came to light only after retirement;
• defence counsel could not explore:
  • whether the card was indeed the girlfriend’s;
  • how and when it came to be in the hoodie (if at all – chain-of-custody issues);
  • whether there could have been contamination or error.
• the appellant was deprived of the chance to:
  • admit, deny, or explain any connection to the card;
  • suggest alternative inferences (e.g. another wearer of the hoodie).

The Court candidly acknowledged that the appellant might not, in reality, have had a persuasive explanation. However, the principle of fairness required that he be given the opportunity to meet the case actually being considered by the jury. Being convicted on the basis of evidence one has never had a chance to address is antithetical to a fair trial.

6.4 Absence of any judicial direction

A further decisive element was the total lack of guidance to the jury about the bank card:

• The judge did not:
  • recall the jury to instruct them to ignore the card;
  • explain that it was not evidence in the trial;
  • give any limiting or clarificatory direction.
• The verdicts were announced almost contemporaneously with the judge being informed that verdicts had been reached.

The Court did not have to decide whether an appropriately strong direction would have cured the irregularity. It noted simply that:

• no such direction was given; and
• the note suggested that by the time the judge was aware of the issue, the jury had already considered and likely relied upon the card.

The absence of any judicial attempt to neutralise or manage the new material “further reinforced” the conclusion that the convictions were unsafe.

6.5 The ultimate question: are the convictions safe?

Applying the Deny / Thompson / Lawson / Docherty framework, the Court asked:

• Has extraneous material, adverse to the defendant, which he had no chance to address, been considered by the jury?
• If so, taking the most prejudicial view of that material and its likely impact, can the Court nevertheless be satisfied that the convictions are safe?

The answers were:

• Yes – the bank card was extraneous, adverse, and unanswerable by the appellant; and
• No – given its potential strength on the central issue of identity, and the lack of any remedial direction, the Court could not be satisfied the convictions were safe.

Accordingly, the only proper outcome was to quash the convictions.

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7. Simplifying the Key Legal Concepts

7.1 “New evidence” after the jury retires

Once the jury retires to deliberate, the law is very strict: no new evidence is to be placed before them (apart from narrow exceptions such as reconvening the court in their presence and strictly controlling any additional matter). They may:

• ask the judge to re-read or summarise evidence already given; but
• they may not receive any additional material, documents, or factual information that was not part of the trial.

In Stuttle, even though the hoodie was a proper exhibit, the bank card inside it was unknown to both parties and the court. Because it was found only after retirement and had never been part of the case, it counted as new evidence.

7.2 “Extraneous material” and “striking at fairness”

“Extraneous material” means something the jury should not have had when deciding the case – for example:

• inadmissible documents accidentally included in the jury bundle;
• media reports discovered by a juror;
• internet research; or
• undisclosed items inside an exhibit (as here).

The fairness test asks:

Has the jury considered material that is adverse to the defendant and which the defendant had no proper opportunity to meet, challenge, or explain?

If yes, the trial is generally regarded as unfair and any conviction is likely to be unsafe.

7.3 The “most prejudicial interpretation” test

When deciding whether an irregularity requires a conviction to be quashed, appellate courts often apply a conservative, defendant-protective test:

• assume the improper material had its worst possible impact on the jury from the defendant’s perspective; and
• ask whether, even on that assumption, the conviction can still be regarded as safe.

In Stuttle, the most prejudicial interpretation of the card was:

• it belonged to the appellant’s girlfriend; and
• its presence in the hoodie proved the hoodie belonged to the appellant, and hence that he was the driver.

Given the centrality of identity and the lack of any counter-balancing directions, the Court could not safely discount that impact.

7.4 “Unsafe conviction”

Under s.2 of the Criminal Appeal Act 1968, the Court of Appeal must allow an appeal against conviction if it thinks the conviction is “unsafe”. An unsafe conviction is not necessarily one where the appellant is in fact innocent; rather it is one where:

• there has been a serious procedural irregularity; or
• there is new evidence; or
• for other reasons the appellate court cannot be confident that the verdict is reliable.

Here, unfairness in the conduct of the trial – specifically, conviction based on undisclosed and untested evidence – rendered the conviction unsafe.

7.5 Dangerous driving and aggravated vehicle taking (briefly)

For context:

• Dangerous driving (s.2 Road Traffic Act 1988) requires driving that falls far below what would be expected of a competent and careful driver, and it must be obvious to a competent and careful driver that driving in that way would be dangerous.
• Aggravated vehicle taking (s.12A Theft Act 1968) generally involves taking a vehicle without consent and, while it is taken, driving it dangerously or committing certain other aggravating acts.

In this case the substantive ingredients of these offences were not the real battleground; the conduct of the driver was plainly dangerous. The issue was who the driver was.

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8. Impact and Practical Implications

8.1 Clarifying the status of undiscovered items within exhibits

Stuttle gives authoritative confirmation that:

• when jurors, during deliberations, discover previously unknown items inside an exhibit, those items are to be treated as new evidence within the Davis rule;
• this is so even though:
  • the outer article (here, the hoodie) is a proper exhibit; and
  • the item found is physically contained within it.

This consolidates and modernises the principle glimpsed in Kaul, giving it prominence and clarity in a reported decision.

8.2 Reinforcing duties of investigation and disclosure

The judgment implicitly underlines serious practical responsibilities:

• Police and investigators must:
  • properly search and examine physical items seized in the course of investigations;
  • record and preserve their contents; and
  • ensure all relevant material is disclosed to the defence.
• Prosecutors must:
  • check that exhibits which may go to the jury have been properly examined;
  • comply with the statutory disclosure regime;
  • avoid the risk of “trial by surprise” arising from undiscovered content.

The Court’s description of the failure to search the hoodie as “lamentable” is a pointed reminder of these obligations.

8.3 Guidance for trial judges when juries discover new material

Stuttle offers implicit procedural guidance for judges faced with similar situations:

1. Immediate cessation of deliberations – once a jury indicates that it has discovered something not previously in evidence, deliberations should effectively be stopped until the court has dealt with the issue.
2. Hear submissions in open court – the judge should:
   • hear from both prosecution and defence on the nature and significance of the material; and
   • consider whether further investigation (e.g. witness recall, forensic examination) is needed.
3. Consider discharging the jury – given the Kaul indication that such situations almost invariably require discharge, the judge must carefully examine whether a fair trial remains possible.
4. If jury not discharged, give clear directions – where the trial is to continue with the same jury, directions must be:
   • prompt;
   • unequivocal; and
   • specifically tailored to addressing the new material (e.g. instructing the jury to ignore it, or explaining its strictly limited relevance).

In Stuttle, the absence of any direction was fatal. Future judges will be expected to avoid that result by more proactive management.

8.4 Implications for appellate review

The case reinforces the modern approach of the Court of Appeal in dealing with procedural irregularities:

• The focus is on fairness and safety, not on purely formalistic breaches.
• Where extraneous or new material is both:
  • potentially significant; and
  • untested or unanswered by the defence,
  the default assumption will lean towards unfairness and unsafety.
• The presence or absence of appropriate judicial directions is often decisive in determining whether a conviction can nonetheless stand.

8.5 Wider effect on criminal practice

Practically, the decision will influence:

• Exhibit-handling protocols – police forces and CPS are likely to reinforce procedures requiring:
  • thorough searching of clothing and bags;
  • documentation of all contents before exhibits are produced at trial.
• Defence practice – defence teams may:
  • proactively ask whether items like clothing have been searched;
  • seek disclosure of search records or continuity notes; and
  • be ready to apply to discharge a jury swiftly if undisclosed content emerges.
• Judicial training – the case will likely feature in training materials dealing with jury irregularities, extraneous material, and discharge applications.

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9. Conclusion

R v Stuttle [2025] EWCA Crim 256 is a significant and instructive decision at the intersection of jury management, evidential fairness, and disclosure duties. It establishes and clarifies that:

• an undiscovered item found by a jury inside an exhibit during deliberations can and should be treated as new evidence for the purposes of the rule against introducing fresh evidence after retirement;
• where such material is potentially important – particularly on a central issue like identity – and:
  • the defendant has had no opportunity to address it; and
  • the judge has given no direction about it,
  any resulting conviction is likely to be unsafe.

The judgment consolidates earlier authorities such as Davis, Kaul, Deny, Thompson, Lawson, and Docherty into a coherent approach grounded firmly in the fairness of the trial. It also sends a strong message to investigators and prosecutors about the need for rigorous handling and disclosure of exhibits and to judges about the need for prompt, robust action when juries encounter unforeseen material.

In the broader criminal law landscape, Stuttle will stand as an important authority on jury irregularities and the concept of “new evidence” arising from within exhibits, providing clear guidance to courts and practitioners and enhancing the safeguards that protect the integrity of jury verdicts.