Sullivan, R. v

Factual and Procedural Background

The Victim, aged 21, was attacked and killed while walking home from work on the night of 1/2 August 1986. Her body was found the following day concealed at the end of an alleyway off a main road. Medical evidence established the cause of death as cerebral haemorrhage and skull fracture caused by multiple blows; the Victim sustained extensive facial and other injuries, including severe injuries to the breasts and external genitalia. Her outer clothing, shoes and bag were missing; some personal property was later recovered at a nearby hill area (referred to below as Location A).

Traces of semen were recovered from the Victim’s abdomen, but, because the sample had been diluted by rain and because of the limitations of forensic techniques at the time, no identification of the source was possible in 1986. Fibres consistent with brown polyester trousers were recovered from the Victim and, at a later search of the Appellant’s home, similar fibres were found. A crowbar that the Appellant admitted having possessed around the time of the killing was recovered; a post‑mortem pathologist gave the opinion that the Victim’s injuries could have been caused by that crowbar.

The Appellant gave a number of police interviews in which his accounts changed; at times he made admissions and at times retracted them. He was initially denied access to a solicitor for a period. Dental impressions of the Appellant were taken and compared with marks on the Victim’s breasts; one expert initially expressed caution about identifying bite marks as coming from the Appellant, but a forensic odontologist later concluded the marks were consistent with being made by the Appellant, and that view was accepted by the earlier expert.

The Appellant was tried at the Crown Court at The City before the Presiding Judge and a jury, convicted of murder after trial in November 1987 and sentenced to life imprisonment with a specified minimum term; he remained in custody thereafter. Leading defence counsel at trial advised there were no arguable grounds of appeal at that time.

The Commission (the Criminal Cases Review Commission) later obtained further expert input. An application to the Commission in 2008 was considered but not referred because, on the basis of expert advice available then, further testing was unlikely to yield an identifiable DNA profile. In 2019 the Appellant applied for a very large extension of time to seek leave to appeal; that application and a renewed application were refused by a single judge and then by the Full Court, principally on the grounds of delay, although the Full Court considered the merits and declined relief. A subsequent application to the Commission produced new material and led to a referral to this Court. The referral operates as an appeal against conviction and raises an application under section 23 of the Criminal Appeal Act 1968 to admit fresh evidence and a question whether the conviction remains safe.

Legal Issues Presented

1. Whether this Court should exercise its statutory power under section 23 of the Criminal Appeal Act 1968 to receive fresh evidence (specifically new DNA analysis; updated criticism of bite‑mark evidence; and fresh psychological evidence bearing on the reliability of confessions).
2. If that fresh evidence is received, whether the Appellant’s conviction is rendered unsafe and what relief (if any) should follow.

Arguments of the Parties

Appellant's Arguments

• The Commission had obtained new forensic reports (two forensic scientists) showing that recent advances in DNA analysis establish that the semen recovered from the Victim’s body derived from an unknown male who was neither the Appellant nor the Victim’s fiancé. The Appellant’s counsel submitted that, because there was a sexual aspect to the attack, the semen was very likely deposited by the attacker and there was no evidence of a second attacker or of consensual sex; this simple fact therefore undermines the prosecution case and renders the conviction unsafe.
• The fresh DNA evidence also bears on the other strands of the prosecution’s circumstantial case: it weakens the significance of the bite‑mark evidence and the probative force of the confessions.
• An updated expert report criticising bite‑mark identification (referred to by the Appellant) casts doubt on the reliability of the identification by reference to bite marks; a forensic psychologist’s evidence (referred to by the Appellant) describes the Appellant as of low IQ, highly suggestible and vulnerable in interview, which undermines the reliability and admissibility of recorded/unrecorded confessions made to police under the historical code of practice.
• Counsel for the Appellant acknowledged the lengthy delay but explained the delay by reference to the development of forensic techniques; earlier testing might have destroyed the remaining sample and, in any event, the DNA information relied upon was only recently obtainable.
• On that basis the Appellant asked the Court to admit all three items of fresh evidence under section 23 and to conclude the conviction was unsafe.

Respondent's Arguments

• The Respondent did not oppose reception of the fresh DNA evidence. The Respondent obtained an independent forensic review which agreed with the Commission’s forensic scientists. The Respondent accepted that the DNA evidence could render the conviction unsafe and (realistically) conceded that, had that evidence been available in 1986, the overall evidence would have been insufficient even to charge the Appellant.
• The Respondent opposed admission of the proposed fresh evidence on grounds 2 and 3 (the updated bite‑mark critique and the fresh psychological report relating to confessions), submitting that those materials would not, of themselves, afford grounds for allowing the appeal. The Respondent pointed to the fact those issues had been considered at trial and in the earlier application to this Court.
• The Respondent indicated that, should the Court allow the appeal on the basis of the DNA evidence, it would not seek a retrial.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court applied the statutory gateway in section 23 of the Criminal Appeal Act 1968, which permits the Court, if it thinks it necessary or expedient in the interests of justice, to receive evidence not adduced at trial. Section 23(2) directs the Court to have particular regard to four matters when deciding whether to receive fresh evidence:

1. whether the evidence appears to the Court to be capable of belief;
2. whether the evidence may afford any ground for allowing the appeal;
3. whether the evidence would have been admissible at the original proceedings on the issue which is the subject of the appeal; and
4. whether there is a reasonable explanation for the failure to adduce the evidence at the earlier proceedings.

Applying those considerations to the new DNA evidence, the Court concluded that each criterion was satisfied:

• The forensic statements were plainly capable of belief (the experts’ credentials and reports were accepted as reliable in their field).
• The evidence would have been admissible at trial had it been available.
• The explanation for non‑production at trial was that the relevant analytical techniques had not been available in 1986; the new results only became possible because of subsequent scientific and technical developments.
• Most importantly, the DNA analysis, taken on its proper evidential footing, pointed strongly to a sexual aspect to the attack and to semen deposited by the attacker; the analysis identified an unknown male who was neither the Appellant nor the Victim’s fiancé. There was no evidence of multiple attackers or of consensual sexual activity. Given the circumstantial structure of the Crown’s case in 1986, that single, direct and recently obtainable forensic finding materially undermined the overall case against the Appellant.

The Court accepted the pragmatic concession of the Respondent’s counsel that, had the DNA evidence been available at the outset, the evidence as a whole would not have been sufficient to charge the Appellant. For these reasons the Court held that it was necessary and expedient in the interests of justice to receive the DNA evidence as fresh evidence, and that, in the light of that evidence, the Appellant’s conviction could not be regarded as safe.

Having reached that conclusion on the DNA material, the Court dealt shortly with the other two proposed items of fresh evidence (the updated bite‑mark critique and the fresh psychological report about confessions). Although the Court found that those materials satisfied most of the statutory admissibility considerations, it was not persuaded that either, taken alone, would afford a ground for allowing the appeal:

• On bite marks: the bite‑mark evidence had been thoroughly challenged at trial and the jury had been made aware of relevant expert disagreements. Much of the material now advanced had already been considered by the Court on the earlier application in 2021. The further points now relied on (professional bodies’ changed stance on positive identification by reference to bite marks, and contemporaneous press suggestion that the prosecution regarded bite marks as important) did not persuade the Court that the earlier conclusion should be revisited. In particular, the changed professional view did not settle the question of admissibility where bite marks were relied on as one strand in a broader circumstantial case rather than as definitive identification evidence.
• On the psychological evidence about confessions: issues about admissibility and reliability of the Appellant’s interviews had been ventilated at trial and on the earlier application. The historic legal framework then in force allowed certain practices (for example, temporary denial of access to legal advice in certain circumstances) that are different from present practice; defence counsel had been able to address those matters at trial. The Court regarded much of the fresh psychological report as of doubtful admissibility to the extent it expressed direct criticisms of police conduct; insofar as it dealt with the Appellant’s psychological profile, it did not add substantive new material beyond that already put before the Court in 2021.
• Further, and importantly, the newly admitted DNA evidence necessarily weakened the overall circumstantial case in which bite‑mark and confession evidence had formed parts: the DNA material undermines each of those strands regardless of their apparent strength at trial.

On that basis the Court declined to receive as fresh evidence the updated bite‑mark critique and the fresh psychological report concerning the reliability of confessions.

Holding and Implications

Holding: The Court ALLOWED the appeal on ground 1 (the DNA ground), received the two forensic scientists’ statements regarding the new DNA analysis as fresh evidence under section 23 of the Criminal Appeal Act 1968, and QUASHED the conviction.

Direct consequences for the parties: Because the Respondent indicated it would not seek a retrial, the Appellant must be released from custody. The Court refused to receive the proposed fresh evidence on the bite‑mark issue and the proposed fresh psychological evidence about confessions, and rejected those grounds of appeal.

Broader implications: The opinion’s reasoning is founded on the statutory test in section 23 and on the application of that test to newly available scientifically‑based DNA evidence which directly implicated an unknown male attacker. The Court confined its decision to the application of established statutory principles and to the facts and expert material before it; it did not purport to establish a new general rule of law beyond the application of section 23 to the particular evidence in this case. In short, the decision resolves the parties’ immediate dispute (conviction quashed and release of the Appellant) and does not assert a wider novel legal precedent.