AFH, R. v

Factual and Procedural Background

The Applicant was convicted on 3 July 2023 at the Crown Court at Ipswich before Judge Peters and a jury, on eight counts related to sexual offences against two child complainants, referred to as C1 and C2, who were twins aged 13 at the time of the alleged offending. The offences included multiple counts of sexual assault and assault occasioning actual bodily harm. The jury was unable to reach verdicts on three other counts which were left on file.

The Applicant was sentenced on 30 October 2023 to 15 years' imprisonment, with the most serious count (count 4) treated as the lead offence. The sentence exceeded the maximum tariff for a single Category 2A offence due to the totality of offending. The Applicant changed legal representation during the process and sought extensions of time to appeal against conviction and sentence, as well as to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. These applications were referred to the full court.

The case involves statutory anonymity protections under the Sexual Offences (Amendment) Act 1993 for the complainants, and due to the risk of jigsaw identification, the complainants' mother and the Applicant are also anonymised as M and Applicant respectively.

The background includes a long-term relationship between the Applicant and M from 2006 until early 2019, during which the Applicant regularly stayed at M's property. Both complainants suffered from mental health issues at the time of the alleged offences. The allegations arose shortly after the relationship ended, following a confrontation between the Applicant and another man linked to M. C1 disclosed the abuse in January 2019 via text and to a school support worker, triggering a multi-agency investigation and police involvement.

The prosecution case relied primarily on the evidence of C1, C2, and M, supported by witness statements and recorded cross-examinations. The defence case alleged collusion between the complainants and their mother in fabricating the allegations, which was denied by all three complainants and M during cross-examination.

The Applicant consistently denied the allegations, including during a police interview conducted without legal representation. The Applicant's Instagram messages with C1 became a focus of the application to adduce fresh evidence, which the Applicant had not previously disclosed to trial counsel.

Legal Issues Presented

1. Whether the Court should grant extensions of time for leave to appeal against conviction and sentence.
2. Whether fresh evidence, in the form of Instagram messages between the Applicant and C1, should be admitted under section 23 of the Criminal Appeal Act 1968.
3. Whether the fresh evidence has the potential to render the convictions unsafe or provide grounds for allowing the appeal.
4. Whether the sentence imposed was manifestly excessive given the nature and totality of the offences.

Arguments of the Parties

Applicant's Arguments

• The Applicant sought to adduce fresh evidence consisting of Instagram messages between himself and C1, arguing that these messages contradicted aspects of C1's trial evidence and undermined her credibility.
• The Applicant contended that there was a reasonable explanation for the delay in producing this evidence, including lack of technical competence and the fact that his instructions were conveyed via his wife residing abroad.
• The Applicant, through counsel, argued that the sentence of 15 years was excessive when considering the overall offending and the generally good relationship between the Applicant and the complainants.

Respondent's Arguments

• The Respondent accepted that the Instagram messages would likely have been admissible at trial and could have been used in cross-examination but submitted there was no reasonable explanation for the failure to adduce them earlier.
• The Respondent argued that the fresh evidence did not impugn the credibility of M or C2 and did not have the potential to render the convictions unsafe.
• Regarding sentence, the Respondent submitted that the 15-year term, reflecting the totality of offending against two vulnerable children, was not manifestly excessive.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court considered the statutory criteria under section 23 of the Criminal Appeal Act 1968 for admitting fresh evidence: 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 production.

The Court found the Instagram messages to be genuine and admissible, but noted there was no reasonable explanation for the failure to present them at trial, as the Applicant had access to his Instagram account and mentioned these messages during his police interview.

Substantively, the Court held that the fresh evidence merely reinforced a fact already accepted at trial—that the Applicant had a generally good relationship with C1 aside from the abuse—and did not significantly undermine the credibility of the complainants or suggest collusion. The jury had been properly directed and had rejected the defence of collusion.

Consequently, the Court concluded that the fresh evidence did not render the convictions unsafe and did not provide grounds for allowing the appeal.

Regarding the sentence, the Court acknowledged the sentencing exercise reflected the totality and severity of the offences against two vulnerable children, noting the sentence was above the maximum tariff for a single offence but justified by cumulative criminality and aggravating features. The Court found the sentence was not manifestly excessive.

Holding and Implications

The Court REFUSED the application to adduce fresh evidence and REFUSED leave to appeal against conviction.

The Court also REFUSED leave to appeal against sentence, holding that the 15-year sentence was appropriate and not manifestly excessive.

The direct effect is that the Applicant’s convictions and sentence stand as imposed. No new legal precedent was established by this decision.