Larkin, R. v

Factual and Procedural Background

On 11th December 2019, following a trial in the Crown Court at Sheffield before Judge Slater and a jury, the Appellant, aged 56 at the time, was convicted of assault occasioning actual bodily harm under section 47 of the Offences against the Person Act 1861 (count 3). He was acquitted of two counts of assault by penetration under section 2 of the Sexual Offences Act 2003 (counts 1 and 2). On 13th December 2019, he was sentenced to three years' imprisonment.

The Appellant applied for leave to appeal against his conviction based on fresh evidence in the form of a witness statement from Ms Robinson, who was allowed to give oral evidence provisionally by video-link during the hearing. The appeal was heard with written and oral submissions from counsel representing both parties.

The case involved allegations that the Appellant assaulted the complainant ("AB"), with whom he had previously been in a relationship. On 11th November 2018, the Appellant collected AB from a public house at the request of AB's daughter ("XY"), who was concerned about AB's intoxication. The prosecution alleged that the Appellant assaulted AB at her home, resulting in 45 sites of injury consistent with punches and strangulation. AB and XY both gave evidence describing the events, including the Appellant's violence and threats with knives. The Appellant denied the allegations, proposing alternative explanations for AB's injuries and suggesting motives for fabrication.

The defence also presented character witnesses and evidence challenging AB's credibility, highlighting inconsistencies in her accounts and her history of alcohol abuse and violence when intoxicated. The jury ultimately convicted the Appellant on the assault charge but acquitted on the sexual assault charges.

The fresh evidence from Ms Robinson, a long-term friend of AB, comprised a statement given after the trial, describing conversations with AB suggesting AB had attacked the Appellant with a knife and had fallen into the bath, with some ambiguity about the events. The Appellant sought to rely on this evidence to undermine AB's credibility and render the conviction unsafe.

Legal Issues Presented

1. Whether the fresh evidence from Ms Robinson is admissible and credible.
2. Whether the fresh evidence could afford a ground for allowing the appeal against conviction.
3. Whether the conviction is unsafe in light of the fresh evidence and the overall case.

Arguments of the Parties

Appellant's Arguments

• The fresh evidence from Ms Robinson demonstrates that AB's account was untrue and undermines her credibility and reliability.
• The evidence would be admissible under section 114(1)(d) of the Criminal Justice Act 2003 as hearsay evidence relevant to credibility and truth of AB's statements.
• The evidence was important to the overall case and could not have been obtained earlier despite efforts, justifying its late introduction in the interests of justice.
• Combined with other concerns about AB’s credibility, the fresh evidence renders the conviction unsafe.

Respondent's Arguments

• The evidence of Ms Robinson is not credible and does not go to any fact in issue but only to credibility, which was already thoroughly challenged at trial.
• The requirements for admission under section 114(1)(d) of the Criminal Justice Act 2003 are not met.
• The Appellant and his legal team were aware of Ms Robinson’s evidence before trial but failed to obtain it formally without satisfactory explanation.
• The jury had the opportunity to assess AB’s credibility, and the fresh evidence would not make the conviction unsafe.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court applied the statutory framework of section 23 of the Criminal Appeal Act 1968, which permits the Court of Appeal to receive fresh evidence if it is necessary or expedient in the interests of justice. The court considered the four factors under section 23(2): whether the evidence is capable of belief, whether it may afford grounds for allowing the appeal, whether it would have been admissible at trial, and whether there is a reasonable explanation for its late introduction.

The court found that the timing of the evidence's production was problematic, as Ms Robinson was identified as a potential witness months before trial and was locatable, yet her evidence was not adduced then without reasonable explanation. The court assessed Ms Robinson's credibility and found her to be wholly unreliable due to inconsistencies in her accounts regarding the timing, sequence, and content of contacts with AB, the Appellant, and others.

The court expressed doubts about the admissibility of the evidence under section 114(1)(d) of the Criminal Justice Act 2003, particularly given the inconsistencies and lack of clarity in Ms Robinson's statement. The fresh evidence was considered to be largely cumulative of the credibility challenges already presented at trial. The judge’s summing-up had thoroughly addressed the discrepancies and issues with AB's reliability, which the jury had carefully considered.

Ultimately, the court concluded that the fresh evidence was neither credible nor sufficiently weighty to cast a substantially new or different light on the issues before the jury so as to render the conviction unsafe. The vigorous defence case at trial had already engaged with these credibility issues, and the fresh evidence did not materially alter the landscape of the case.

Holding and Implications

The court DENIED LEAVE TO ADMIT THE FRESH EVIDENCE and REFUSED LEAVE TO APPEAL AGAINST THE CONVICTION, holding that the conviction is unarguably safe.

The direct effect of this decision is that the Appellant’s conviction and sentence remain in force. No new precedent was established, and the decision reinforces the principle that fresh evidence must be credible, admissible, and sufficiently impactful to affect the safety of a conviction, especially where the evidence is late and cumulative of issues already fully explored at trial.