Factual and Procedural Background
This opinion concerns an application for leave to appeal following a prior judgment of the Court of Appeal in Northern Ireland dated 5 May 2023, which dismissed a Criminal Cases Review Commission ("CCRC") reference related to convictions for murder, attempted murder, and two offences of possession of a firearm with intent to endanger life. The original conviction was based on circumstantial evidence including photographic and DNA evidence. The applicant seeks to challenge the safety of the convictions on two grounds, relying on fresh expert evidence relating to photographic images and DNA evidence that was not adduced at trial. The procedural history includes a prior unsuccessful appeal and a CCRC refusal to refer the case for appeal. An oral hearing for the current application was permitted.
Legal Issues Presented
- Whether fresh expert evidence relating to photographic evidence undermines the safety of the convictions.
- Whether fresh expert evidence relating to DNA evidence undermines the safety of the convictions.
- Whether leave to appeal should be granted under section 14(4B) of the Criminal Appeal Act 1995 for grounds not related to reasons given by the CCRC.
- Whether the fresh evidence meets the statutory test under section 25 of the Criminal Appeal (Northern Ireland) Act 1980 for admission on appeal.
Arguments of the Parties
Appellant's Arguments
- Photographic evidence: The appellant submits fresh expert reports which contend that the jury could not safely conclude that the individual in CCTV and ANPR images was the appellant. It is argued that the photographic evidence relied upon by the Crown is unreliable and should not be considered safe circumstantial evidence.
- DNA evidence: The appellant relies on a fresh expert report criticising the trial DNA evidence, specifically the opinion that the appellant "could not be excluded as a minor contributor" to a DNA profile from a glove. The appellant argues this evidence was misleading and prejudicial, should have been excluded or properly qualified, and that the Crown’s later concession that this evidence was insignificant further undermines the safety of the convictions.
- The appellant submits that the fresh evidence should be admitted in the interests of justice under section 25 Criminal Appeal (NI) Act 1980.
Respondent's Arguments
- The prosecution maintains that the fresh evidence does not undermine the safety of the convictions when considered in the context of the entire circumstantial case.
- Regarding photographic evidence, the prosecution argues the case was never based on direct identification but on a combination of circumstantial strands including the appellant’s presence in the car and implausible explanations for his involvement.
- Regarding DNA evidence, the prosecution submits the disputed DNA evidence was not significant at trial and the concession regarding its insignificance does not render the convictions unsafe.
- The prosecution contends that the fresh evidence does not meet the threshold for admission and that the appellant’s failure to call this evidence at trial or in earlier appeals undermines the application.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Jogee [2016] UKSC 8 |
Test for joint enterprise liability and whether change in law causes substantial injustice. |
The court found the case was not truly a Jogee case and no substantial injustice arose from the change in law. |
| R v Foy [2020] EWCA Crim 270 |
Principle of finality in litigation; appeals cannot be used as a second chance to retry the case. |
The court emphasized the need for certainty and rejected repetitive appeals on the same point. |
| R v Brownlee [2015] NICA 39 |
Principles governing out-of-time appeals and the rigorous tests applied. |
The court noted that principles from Brownlee would be relevant in assessing leave for late grounds. |
| R v Winzar [2021] 4 WLR 2 |
Discretion to grant leave for appeal on grounds rejected by CCRC; requirement for fresh evidence to establish error in prior analysis. |
The court adopted the principle that fresh grounds must effectively establish an error in prior assessments. |
| R v Pendleton [2002] 1 Cr App R 34 |
Test for admitting fresh evidence on appeal; interests of justice and jury impact test. |
The court applied the test focusing on whether fresh evidence might reasonably have affected the jury's verdict. |
| R v Erskine [2009] 2 Cr App R 29 |
Discretion to admit fresh evidence is wide but requires reasonable explanation for failure to adduce at trial. |
The court emphasized the case and fact-specific nature of the decision and the importance of explanation for omissions. |
| R v Trevor [1998] Crim LR 652 |
Requirement for explanation for failure to adduce evidence at trial when considering fresh evidence. |
Referenced as a precedent emphasizing the duty to present defence evidence at trial. |
| R v CCRC ex p. Pearson [2000] 1 Cr App R 141 |
Failure to provide reasonable explanation is not determinative of interests of justice test. |
The court noted discretion remains even without full explanation if interests of justice require. |
| R v Pollock [2004] NICA 34 |
Overarching test for safety of verdict on appeal. |
The court must decide simply if the verdict is unsafe based on a reasoned analysis of the evidence. |
| R v Courtney [2007] NI 178 |
Approach to circumstantial evidence; consider all strands of evidence together. |
The court applied the principle that circumstantial evidence must be considered as a whole. |
| R v Meehan (No.2) [1991] 6 NIJB 1 |
Approach to circumstantial evidence. |
Referenced to support the approach to assessing circumstantial evidence. |
| R v McGreevy v DPP [1973] 1 All ER 503 |
Jury must be satisfied beyond reasonable doubt; circumstantial evidence requires exclusion of reasonable innocence inference. |
Cited for the foundational principle on evaluating circumstantial evidence. |
| R v Kincaid [2009] NICA 67 |
Circumstantial evidence can be compelling; strands of evidence combine to form a strong case. |
The court rejected the submission that each strand must independently be strong. |
| R v Wootton and McConville [2014] NICA 41 |
Circumstantial evidence must not be considered piecemeal. |
Applied as a guide for assessing circumstantial cases. |
| R v Hillier [2007] 233 ALR 63 |
Guidance on assessing circumstantial evidence. |
Referenced approvingly in relation to circumstantial evidence assessment. |
| R v Dlugosz; R v Pickering; R v S (MD) [2013] 1 Cr App R 32 |
Admissibility of evaluative opinion evidence in DNA cases without statistical basis. |
Confirmed that evaluative DNA opinion evidence can be admissible even without statistics. |
| R v James (Wayne) (Practice Note) [2018] EWCA Crim 285 |
High threshold for fresh evidence to alter CCRC analysis. |
Referenced regarding the need for fresh grounds to establish error in prior investigations. |
Court's Reasoning and Analysis
The court began by situating the application within the procedural context of a dismissed CCRC reference and prior appeal decisions affirming the safety of the convictions. It acknowledged the statutory framework governing leave to appeal on grounds not related to the CCRC reference, emphasizing the discretionary nature of leave under section 14(4B) of the Criminal Appeal Act 1995 and the paramount importance of the interests of justice.
The court carefully considered the fresh expert evidence on photographic and DNA matters. It noted that the photographic evidence was circumstantial and never amounted to direct identification. The fresh expert reports highlighted uncertainties and lack of conclusive features in the CCTV and ANPR images, but the court found these did not "effectively demolish" the prosecution case. The court stressed that the photographic evidence must be assessed in the context of the entire circumstantial case, including the appellant’s presence in the vehicle, implausible explanations, and other corroborative evidence.
Regarding the DNA evidence, the court acknowledged advances in forensic science but found that the disputed DNA evidence was not of real significance at trial and was not heavily relied upon. The Crown’s concession that the evidence was insignificant did not render the convictions unsafe given other DNA evidence against the appellant.
The court applied the statutory test for admitting fresh evidence under section 25 of the Criminal Appeal (NI) Act 1980, considering whether the evidence was capable of belief, might afford grounds for appeal, would have been admissible at trial, and whether there was a reasonable explanation for its absence at trial. While the fresh evidence was capable of belief as a subjective opinion, the court found it did not afford a ground for allowing the appeal. The applicant failed to provide a convincing explanation for the failure to adduce the evidence at trial, given that experienced counsel had made strategic choices and the issues had been fully canvassed previously.
The court emphasized the importance of finality in litigation and the need to avoid repeated attempts to retry the case with hindsight. It applied established principles from case law on circumstantial evidence and fresh evidence, concluding that the fresh evidence would not have reasonably affected the jury’s verdict and thus did not undermine the safety of the convictions.
Holding and Implications
The court REFUSED leave to appeal and DISMISSED the appeal.
The direct effect is that the applicant’s convictions for murder, attempted murder, and related offences remain upheld. The court’s decision confirms the safety of the convictions despite the fresh expert evidence presented. No new precedent was established; rather, the decision reinforces existing principles concerning the admission of fresh evidence, the assessment of circumstantial evidence, and the finality of criminal appeals.