Hardy, R. v

Factual and Procedural Background

The appellant was convicted on 30 January 2015 of five counts of rape under section 1(1) of the Sexual Offences Act 2003, while acquitted of two additional counts of rape and one count of sexual assault. The offences arose from a long-standing, volatile relationship between the appellant and the complainant, who had known each other since adolescence. The prosecution alleged that the appellant was abusive and controlling, engaging in non-consensual sexual acts with the complainant over various periods, including during pregnancies and family events.

Following conviction, the appellant received an extended sentence of 20 years (15 years custodial and 5 years extended licence) with ancillary orders including a restraining order. The appellant sought an extension of time (2022 days) and permission to appeal against conviction based on new forensic evidence consisting of recovered text messages between himself and the complainant, which were not available at trial. The application was referred to the full court for consideration.

The new evidence was obtained through forensic examination of the appellant’s mobile phone post-conviction, revealing deleted text messages that had not been accessed by the original forensic software used pre-trial. The prosecution did not dispute the novelty of the evidence but argued against its admission, contending the appellant was aware of the messages at trial and that the new evidence did not undermine the safety of the convictions.

Legal Issues Presented

1. Whether the court should grant an extension of time for the appellant to apply for leave to appeal against conviction based on newly recovered evidence.
2. Whether the new forensic evidence, comprising reconstructed text messages between the appellant and the complainant, ought to be admitted under section 23 of the Criminal Appeals Act 1968.
3. Whether the new evidence undermines the safety of the convictions on various counts of rape and sexual assault.
4. Whether the convictions on specific counts are inconsistent with acquittals on others, and how the new evidence impacts the overall credibility of the complainant’s testimony.

Arguments of the Parties

Appellant's Arguments

• The appellant sought to admit new forensic reports revealing previously unrecovered text messages between himself and the complainant, arguing these messages cast doubt on the complainant's credibility and the safety of the convictions, particularly on counts 6 to 8.
• The appellant contended the new evidence would provide context to messages disclosed shortly before trial and fundamentally undermine key allegations of non-consensual sexual acts.
• He denied certain allegations, including sexual intercourse during a trip to York, and asserted that some text messages evidenced consensual interactions.
• The appellant maintained that the delay in recovering the evidence was not due to his fault but due to limitations of forensic technology available at trial.

Prosecution's Arguments

• The prosecution accepted the evidence was new but submitted the appellant must have been aware of the messages and could have testified about them at trial, thus the court should be cautious in admitting the evidence.
• They argued the new evidence did not undermine the safety of the convictions, noting corroboration of the complainant’s evidence by other witnesses and the appellant’s own text messages.
• Regarding the York incident (Count 6), the prosecution emphasized the appellant’s denial of sexual intercourse and contended the new messages did not sufficiently discredit the complainant’s testimony.
• The prosecution did not seek a retrial even if the appeal was allowed in whole or in part.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court carefully examined the new forensic reports and the recovered text messages. It found the first two reports did not advance the appellant’s case materially. The third report reflected a volatile relationship with both affectionate and abusive messages but did not justify admitting the evidence for appeal. The fourth report, however, contained messages from April to August 2014 that were relevant and capable of belief, particularly relating to Counts 6 and 7.

The court emphasized the importance of the detailed chronology and content of these messages, which were not available at trial due to forensic limitations. It rejected the prosecution’s argument that the appellant could have given evidence about the messages without their detailed content, finding this unrealistic.

Regarding the impact on convictions, the court found that the affectionate and seemingly consensual nature of some messages, especially those around the York trip, undermined the complainant’s allegations of rape on Count 6, rendering that conviction unsafe. It also found the conviction on Count 7 unsafe due to inconsistencies between the complainant’s stated reasons for non-consent and the content of the messages.

However, the court was not persuaded that the new evidence undermined the safety of convictions on Counts 2, 4, and 8, which were supported by other evidence and consistent with the complainant’s testimony. The jury’s acquittals on Counts 1, 3, and 5 indicated they scrutinized the evidence carefully and differentiated between counts.

The court acknowledged the complexity of the case and the volatile nature of the relationship but concluded that the new evidence warranted allowing the appeal on Counts 6 and 7 while dismissing it on the others. It also noted the significant delay in obtaining the new evidence was not attributable to the appellant.

Holding and Implications

The court granted the appellant an extension of time to seek leave to appeal and permission to appeal against conviction on the basis of the new evidence.

The appeal was ALLOWED in relation to Counts 6 and 7, with the convictions on these counts deemed unsafe and therefore set aside.

The appeal was DISMISSED in relation to Counts 2, 4, and 8, with those convictions upheld.

The prosecution indicated no intention to seek a retrial on the quashed counts. The court also granted an extension of time to allow the appellant to seek leave to appeal the sentence, though no decision on that matter was made. The decision directly affects the appellant by quashing two convictions but does not establish any new legal precedent beyond the application of established principles to the facts of this case.