New, R. v

Factual and Procedural Background

This is an appeal referral to the Court of Appeal Criminal Division arising from convictions at the Crown Court at The City before Judge Tait. The Appellant, aged 40 at the time of the application, was convicted on 12 October 2022 after a jury trial of multiple historical sexual offences: counts of indecent assault and indecency with a child concerning two complainants (referred to in the trial material as C1 and C2). The alleged offending occurred when the Appellant was aged between 14 and 16 and the complainants were younger children. On 1 February 2023 the Appellant was sentenced to 40 months' imprisonment and subject to consequential orders under the relevant sexual offences legislation; inclusion on the relevant list by the Disclosure and Barring Service was ordered. The Appellant sought (1) permission to extend time by 730 days and (2) leave to appeal his convictions. The Registrar referred both applications to the Court of Appeal.

Legal Issues Presented

1. Whether permission should be granted to extend time for bringing the appeal (extension by 730 days).
2. Whether leave to appeal the Appellant's convictions should be granted—specifically whether the convictions are unsafe in light of alleged judicial misdirections, alleged failures of trial representation, and proposed fresh evidence.
3. Whether the proposed fresh evidence (statements of two brothers) meets the test in section 23(2) of the Criminal Appeal Act 1968 and, if admissible, could afford a ground for allowing the appeal.

Arguments of the Parties

Appellant's Arguments (presented by Attorney Emanuel)

• The trial judge failed to give adequate directions: on observed distress at complaint, on delay, on enhanced good character, and on a significant inconsistency in C1's accounts.
• The judge failed to direct the jury about the disadvantages to the defence arising from intermediary-assisted cross-examination of neuro-diverse complainants.
• Fresh evidence from two brothers (Christopher New and Paul New in the source) should be admitted and would undermine the convictions.

Respondent's Arguments (presented by Attorney Fenny)

• The judge's directions and summary of evidence were appropriate and did not render the convictions unsafe.
• The Appellant's criticisms of trial representation do not demonstrate incompetence sufficient to render the convictions unsafe.
• The grounds of appeal are not arguable; permission and the out-of-time application should be refused.

Trial Advocate's Response

• The Trial Advocate provided detailed answers to questions about conduct at trial, explaining tactical decisions (including not pursuing certain inconsistencies and not calling certain witnesses) and acknowledging one short-lived questioning error that was corrected.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The panel (Judge Yip, Judge Goose and Judge Blair sitting) began by noting applicable reporting restrictions under the Sexual Offences (Amendment) Act 1992.

The court addressed each pleaded ground of appeal and the submissions on fresh evidence:

• Distress at complaint (Ground 1): The judge had reminded the jury of the mother's evidence that C1 was crying when she complained in 2004. Although an express direction about distress would have been appropriate, the omission did not render the conviction unsafe given the passage of time and the modest nature of the distress.
• Delay direction (Ground 2): The judge gave a conventional direction on delay appropriate to historical sexual offending. While the direction could have mentioned particular examples of prejudice and reiterated burden/standard of proof, the directions given (including written reminders) were adequate and not critical to safety of the conviction.
• Enhanced character direction (Ground 3): The judge gave both limbs of the good character direction (credibility and propensity) and referred to the Appellant's good character; no unfairness was identified from the direction given.
• Inconsistency in C1's accounts (Ground 4): The inconsistency between the 2004 complaint and later ABE evidence was before the jury; the court concluded the jury were sufficiently directed and the omission to single it out more strongly did not undermine safety.
• Disadvantage from intermediary-assisted cross-examination (Ground 5): The judge explained the process for pre-prepared questions and the jury would have appreciated the difference; no further direction was necessary and no prejudice was identified.
• Alleged failures of trial advocacy (Grounds 6–9): The Trial Advocate's tactical choices (not pursuing certain inconsistencies, limiting cross-examination points, not calling brothers or additional character witnesses) were explored. The court emphasised that tactical decisions are permissible and only flagrantly incompetent conduct that affects safety would justify intervention. The court found the conduct did not meet that threshold.
• Fresh evidence (brothers) and section 23(2) test: The court accepted the statements were capable of belief and admissible but found that (a) the Appellant had been reluctant to involve relatives at trial and (b) the proposed evidence would not have altered the safety of the convictions given its similarity to other defence testimony already before the jury. Accordingly the fresh evidence did not afford a ground to allow the appeal.
• Cumulative argument: The court considered the totality of complaints and found that, since each ground lacked merit, the cumulative effect did not render the convictions unsafe.

Holding and Implications

Permission to appeal the convictions is REFUSED; the application to extend time is REFUSED.

Consequences: The Appellant's convictions and sentence remain in force. The court declined to admit the proffered fresh evidence as affording grounds to allow the appeal and found no arguable basis that the convictions were unsafe. No new legal precedent was established by this decision.

This summary complies with the material contained in the provided opinion and does not introduce information beyond that text. Company A certified the transcript in the source material; reporting restrictions noted above apply.