Guernsey Law Reports 2007–08 GLR Note 11
PRESLAND v. LAW OFFICERS OF THE CROWN
COURT OF APPEAL (Rowland, Bailiff, Vaughan and Steel, JJ.A.): July 4th, 2007
Criminal Procedure—appeals—fresh evidence
The appellant, aged 25, was convicted of the rape of a teenage girl with whom he was friendly. He was sentenced to 6½ years’ imprisonment, to be followed by an extended sentence licence of 5 years.
The complainant had stayed overnight with him and other friends at a party (the precise date of which was not agreed) and alleged that he raped her in the middle of the night when she was waking from sleep and did not resist. His principal defence was one of alibi, supported by evidence from friends and colleagues. The complainant made a complaint to the police some two months later.
At the trial, the complainant was extremely diffident and had to be questioned repeatedly when her answers to cross-examination were indistinct or inaudible. Sometimes, she had to write down what she wanted to say. The presiding judge intervened on a number of occasions to clarify her answers to questions already asked and explained to the Jurats in his summing-up that his only purpose in doing so was to assist in making sure that all members of the court understood what she wished to say.
The appellant appealed against his conviction and sought leave to appeal against sentence. In respect of his conviction, he sought to adduce fresh evidence supporting his defence of alibi from a witness who wished to testify that the appellant had been working for her elsewhere at the most likely time of the offence, and additional evidence from another witness who claimed that he and the appellant had done extra evening work together on several days around the time in question.
Held: (1) The judge’s interventions in the complainant’s cross-examination had been no more than attempts to persuade her to give distinct answers to questions she had already been asked. He did not interfere for any other purpose and had specifically explained this purpose (in the context of the complainant’s diffidence) in his summing-up to the Jurats. The court was satisfied that the judge had neither undermined the defence nor assisted the prosecution.
(2) The application under the Court of Appeal (Guernsey) Law 1961, s.32(1)(b) to adduce fresh evidence would be dismissed. To be admissible on appeal, relevant evidence must not have been available at the trial, a reasonable explanation should be given for not having called it there, it should be credible and be capable of raising a reasonable doubt in the minds of the Jurats when taken with the existing evidence (Law Officers v. Collins (1989), 8 GLJ 16, applied; R. v. Beresford (1971), 56 Cr. App. R. 143, applied). An accused person had a duty to play his own part in assisting in the preparation of his defence and the appellant had failed to use reasonable diligence to bring the additional evidence to the attention of his advocate, even though he knew of its existence. It had been available and should have been called at the trial.
(3) Within the interpretation given to s.25(1) of the Court of Appeal (Guernsey) Law 1961, therefore, the verdict of guilty was not obviously and palpably wrong nor could it be said to be not reasonably supported having regard to the evidence (Law Officers v. Ogier (1989), 7 GLJ 17, applied; Guest v. Law Officers, C.A., Judgment 8/2003, January 9th, 2003, unreported, dicta of Clarke, J.A. applied). The appeal against conviction would therefore be dismissed.
(4) Nor would leave be granted to appeal against sentence. The court had taken a starting point of 7 years based on authority (R. v. Milberry, [2003] 1 W.L.R. 546, followed) and the 6-month discount for whatever mitigation there might have been was counter-balanced by the aggravation provided by the youth of the complainant and the appellant’s previous conviction for an offence against a young boy some years earlier. The sentence was not excessive and the extended sentence licence, ordered on the basis of a probation report and designed to prevent future offending and secure the appellant’s rehabilitation, could not be faulted.
2009
Law Report
None
Guernsey Law Reports 2007–08 GLR Note 11