McKeever, R. v (Re Appeal Against Conviction)

Factual and Procedural Background

The Appellant was convicted of historic sexual offences alleged to have occurred between 1 August 1981 and 31 December 1988. The complainant, born in 1974, was aged between 7 and 14 during the offending period, while the Appellant was aged between 23 and 30. The offences included various counts of sexual abuse and gross indecency, involving acts such as indecent assault, exposure, and sexual touching on multiple occasions and at different locations in The City.

The trial commenced on 16 May 2022 before a jury. The complainant gave evidence on 17 May 2022, followed by witness AB on 18 May, and the Appellant on 19 May. The Appellant denied the offences both in police interview and in court. The complainant’s evidence was supported by multiple complaint witnesses, including AB, CD, EF (mother), GH (aunt), and IJ (husband), although IJ did not attend court.

The Appellant was granted leave to appeal his convictions on two grounds: (i) the admission of a previous statement made by the complainant to witness AB as evidence rebutting recent fabrication was improper; and (ii) fresh evidence in the form of a BBC interview given by the complainant after trial should be admitted.

Legal Issues Presented

1. Whether the previous statement made by the complainant to witness AB was admissible as evidence to rebut a suggestion of recent fabrication under article 24(2) of the Criminal Justice (Evidence) (Northern Ireland) Order 2004.
2. Whether the appellate court should admit fresh evidence in the form of a post-trial BBC interview with the complainant that allegedly contradicted her oral evidence at trial.

Arguments of the Parties

Appellant's Arguments

• The statement made by the complainant to AB should not have been admitted because the complainant did not mention making that statement during her oral evidence, and thus it did not meet the requirements of article 24(4)(b) of the 2004 Order.
• The defence contended that their cross-examination challenged the complainant’s evidence as false from the outset (a “pure fabrication”) rather than recent fabrication, and therefore article 24(2) did not apply.
• The fresh BBC interview evidence undermines the complainant’s veracity and reveals a possible motive for false allegations, rendering the convictions unsafe.

Prosecution's Arguments

• The statement to AB was contemporaneous with the abuse and was admissible under article 24(2) to rebut a suggestion of recent fabrication, supported by case law including R v Cousins and R v Athwal.
• The timing and nature of the complaint to AB predated any family rift or other potential motives for fabrication, thus providing a qualitative difference from later complaints contextualised by family disputes.
• The BBC interview did not constitute fresh evidence that would afford any ground for allowing the appeal, as the complainant’s expressed hatred was consistent with her trial evidence and motivated by the abuse itself.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Cousins [2021] EWCA Crim 1664	Clarification that admissibility requirements in section 120(4)-(7) do not apply to statements meeting section 120(2); previous consistent statements can rebut recent fabrication.	Applied to confirm that the statement to AB was admissible under article 24(2) as evidence rebutting recent fabrication, even though the complainant had not mentioned making the statement.
R v Trewin (David) 2008 EWCA Crim 484	Interpretation of admissibility of previous consistent statements under the Criminal Justice Act 2003.	Referenced in support of the legal framework for admitting previous consistent statements to rebut fabrication.
R v KH [2020] EWCA Crim 1363	Distinction between statements admissible under sections 120(2) and 120(4) of the Criminal Justice Act 2003.	Supported the view that no requirement exists under section 120(2) for the witness to give evidence of having made the complaint.
R v Junior Cousins [2022] 4 WLR 18	Case on all fours with the present case regarding admission of hearsay evidence to rebut recent fabrication.	The trial judge relied on this precedent to admit the hearsay evidence from AB.
R v Athwal [2009] EWCA Crim 789; [2009] 1 WLR 2430	Analysis of hearsay evidence admissibility to rebut recent fabrication and the effect of cross-examination suggesting fabrication from the outset.	Guided the court’s assessment of the defence’s cross-examination approach and the admissibility of the previous consistent statement.
Y [1995] Crim LR 155	Principle that previous consistent statements are admissible to rebut suggestion of recent fabrication.	Referenced in Blackstone and applied to support the admission of the statement to AB.
Tyndale [1999] Crim LR 320	Admissibility of complaint evidence under section 120(2) for its truth even if inadmissible as a recent complaint.	Supported the principle that complaint evidence may be admitted under article 24(2) as evidence of truth.

Court's Reasoning and Analysis

The court carefully analysed the admissibility of the previous statement made by the complainant to witness AB under article 24(2) of the 2004 Order, which allows a previous consistent statement to be admitted to rebut a suggestion of recent fabrication. The court acknowledged that the defence argued their cross-examination challenged the complainant’s evidence as false from the outset, not recent fabrication. However, the court found that the overall impression given to the jury was that recent fabrication was being suggested, aligning with the principles established in R v Athwal.

The court emphasised the importance of the contemporaneity of the complaint to AB, which occurred before the family rift and other complicating factors that arose years later. This timing provided a qualitative difference from later complaints and served as a cogent tool for the jury to assess the truthfulness of the complainant’s evidence.

The trial judge’s admission of the statement was consistent with the interests of justice test under article 18(1)(d), considering factors such as probative value, reliability, and the ability of the defence to challenge the evidence. The judge’s direction to the jury, confining the statement to evidence of consistency rather than truth, was considered advantageous to the defence.

Regarding the fresh evidence ground, the court examined the BBC interview and found that the complainant’s expressed hatred towards the Appellant was consistent with her trial evidence and motivated by the abuse. The edited interview did not disclose any new or exculpatory material that would undermine the safety of the convictions.

Holding and Implications

The court DISMISSED THE APPEAL, affirming the safety of the convictions.

The direct effect of this decision is the upholding of the Appellant’s convictions for historic sexual offences. The court found no basis to exclude the previous consistent statement to AB nor to admit the fresh evidence from the BBC interview. No new precedent was established; the decision applied existing legal principles on hearsay evidence and fresh evidence in appeals.