Parkinson, R. v

Factual and Procedural Background

On 9 June 2023, following a Crown Court trial before Judge Berkson and a jury, the Appellant was convicted of one count of rape and had earlier pleaded guilty to an assault on an emergency worker (count 3). The jury acquitted the Appellant of one alternative assault allegation. The Appellant was sentenced to nine years' imprisonment on the rape count and a concurrent term of eight weeks on count 3. The Appellant sought an extension of time (488 days) to apply for leave to appeal against conviction and sought leave under section 23 of the Criminal Appeal Act 1968 to adduce fresh evidence from three witnesses. A single judge referred these applications to the full court. One ground of appeal based on the three witnesses remained; a second ground was withdrawn.

The underlying facts as found at trial were that on 31 October 2021 the Complainant and her partner had been on a night out and later attended the Complainant's home with the Appellant. The prosecution alleged the Complainant was severely intoxicated, incapable of consenting, and that the Appellant penetrated her while she was insensate. The Complainant's partner called the police; officers attended, witnessed sexual activity, used force to detain the Appellant and arrested him. Body-worn video, police accounts and toxicology (urine alcohol 348 mg/100 ml) were before the jury. The Appellant gave evidence denying non-consensual conduct and asserting the Complainant had initiated and consented to the sexual activity. The central jury issues were whether the Complainant consented or was too intoxicated and whether the Appellant reasonably believed she was consenting.

Legal Issues Presented

1. Whether the court should grant an extension of time for the Appellant to apply for leave to appeal against conviction.
2. Whether leave should be given under section 23 of the Criminal Appeal Act 1968 to adduce fresh evidence from three witnesses and, relatedly, whether there is a reasonable explanation for failure to call that evidence at trial (section 23(2)(d)).
3. Whether the proposed evidence is admissible having regard to section 41 of the Youth and Criminal Justice Evidence Act 1991 (restriction on evidence about complainant's sexual history) and the non-defendant bad character provisions in section 100 of the Criminal Justice Act 2003.

Arguments of the Parties

Appellant's Arguments (as advanced by Attorney McCulloch)

• The fresh evidence from three witnesses undermines the Complainant's credibility and casts doubt on the safety of the conviction.
• The new evidence challenges the Complainant's account of her alcohol consumption given to the prosecution medical practitioner and suggests she was a heavier drinker than stated, affecting assessment of her capacity to consent.
• The new evidence suggests the Complainant had been unfaithful or made contrary statements, relevant to credibility (fidelity).
• No complaint was made about trial procedure, directions, or counsel's conduct; the application focused on fresh evidence only.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed admissibility under three legal strands: section 23 of the Criminal Appeal Act 1968 (reasonable explanation for failure to call evidence), section 41 of the Youth and Criminal Justice Evidence Act 1991 (restrictions on sexual history evidence and its exceptions), and section 100 of the Criminal Justice Act 2003 (admissibility of non-defendant bad character evidence).

Applying those tests, the court concluded the proposed evidence from each witness failed one or more legal requirements and was inadmissible.

• Witness A: Evidence of the Complainant's supposed promiscuity, drinking and matters of parentage was caught by section 41(1) as relating to consent and did not fall within the exceptions in section 41(3). Evidence of an assault when collecting belongings could not be relied on as bad character or of substantial probative value where Witness A had been convicted for that assault. Evidence of the Complainant's drinking on other occasions was of limited probative value given the availability of contemporaneous evidence (body-worn video, police observations, toxicology) which the jury had already assessed. The solicitors at trial had been told of possible material about heavy drinking, so there was an absence of a satisfactory explanation for not adducing it at trial.
• Witness B: Having given live evidence at trial, Witness B could have been questioned about prior drinking; material about drinking at unrelated times (e.g. Christmas 2023) was irrelevant to the central issues. Allegations about posting sexually provocative material were excluded by section 41(1). Other bad character material relating to family proceedings or access disputes lacked substantial probative value for the question whether the Complainant consented on the night in question.
• Witness C: Proposed evidence that the Complainant had previously left her partner to have sex with another man was, in principle, hearsay and in any event excluded by section 41(1). The court rejected that the prior event was so similar to the charged event as to fall within the section 41(3)(c)(ii) exception; factual dissimilarities (different location, partner absent in one incident) made coincidence plausible. Further, prior instances of alleged lying did not satisfy the section 100 tests for admissible bad character evidence.

The court emphasised that the jury already had direct evidence about the Complainant's condition at the material time (video, police evidence, toxicology) which was the most important material for assessing consent. Because each witness's proposed evidence failed the statutory tests, the evidence was not admissible. Consequently, the application to call fresh evidence was refused and there was no basis to grant the extension of time.

Holding and Implications

The application for leave to call fresh evidence and the application for leave to appeal against conviction were refused.

Implications: The Appellant's request for an extension of time to seek leave to appeal was unnecessary and denied in light of the inadmissibility of the fresh evidence. The refusal ends the Appellant's attempt to introduce the three witnesses' evidence and to proceed with an appeal on that ground. The court's decision was confined to the statutory tests and the facts before it; no new legal precedent was created beyond applying the cited statutory provisions to the evidence proffered.