The defendant appealed his conviction for murder wishing to bring in evidence of his diminished responsibility at the time of the offence.
Held: The evidence was admitted, but the conviction was upheld. The court took the opportunity to give guidance on the admission of new medical evidence procedures in court of appeal with new Act. As to the admission of new expert evidence on appeal: ‘The section (s.23 as amended) makes plain that in the exercise of its discretion whether to receive evidence or not the court must be guided above all by what it considers necessary or expedient in the interest of justice. The section does however acknowledge, in subsection (2)(d), the crucial obligation on a defendant in a criminal case to advance his whole defence and any evidence on which he relies before the trial jury. He is not entitled to hold evidence in reserve and then seek to introduce it on appeal following conviction. While failure to give a reasonable explanation for failure to adduce the evidence before the jury is not a bar to reception of the evidence on appeal, it is a matter which the court is obliged to consider in deciding whether to receive the evidence or not.
The Court has in the past accepted that section 23 may apply to expert evidence, and we would not wish to circumscribe the operation of a statutory rule enacted to protect defendants against the risk of wrongful conviction. But it seems unlikely that the section was framed with expert evidence prominently in mind. The requirement in subsection (2)(a) that the evidence should appear to be capable of belief applies more aptly to factual evidence than to expert opinion, which may or may not be acceptable or persuasive but which is unlikely to be thought to be incapable of belief in an ordinary sense. The giving of a reasonable explanation for failure to adduce the evidence before the jury again applies more aptly to factual evidence of which a party was unaware, or could not adduce, than to expert evidence, since if one expert is unavailable to testify at a trial a party would ordinarily be expected to call another unless circumstances prevented this. Expert witnesses, although inevitably varying in standing and experience, are interchangeable in a way in which factual witnesses are not. It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury’, but the court must be careful not ‘to circumscribe the operation of a statutory rule enacted to protect defendants against the risk of wrongful conviction.’
Judges:
Lord Bingham CJ
Citations:
Times 23-Jul-1996, [1997] 1 Cr App R 86
Statutes:
Criminal Appeal Act 1968 23, Criminal Appeal Act 1995
Jurisdiction:
England and Wales
Cited by:
Cited – Winzar v Regina CACD 20-Dec-2002
The defendant appealed conviction for the murder of her husband. It was said she had injected him with a fatal dose of insulin. He was incapacitated but not diabetic.
Held: The deceased’s brain had been destroyed before any prosecution was . .
Cited – Bowman, Regina v CACD 2-Mar-2006
The defendant appealed his conviction of murder saying that evidence of other pathologists undermined the evidence given by similar experts for the crown.
Held: The court took the opportunity to give guidance on the provision of expert . .
Cited – Regina v Weekes CACD 18-Feb-1999
The defendant appealed against his conviction for murder saying that at the time of the offence he suffered a paranoid psychotic illness which would have substantially impaired his mental responsibility for his acts. He was not regarded as insane as . .
Cited – Meachen v Regina CACD 5-Aug-2009
The defendant appealed against his conviction for causing grievous bodily harm with intent, asking the court to admit further evidence from an expert who had given evidence at the trial and further confirmatory evidence.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 09 April 2022; Ref: scu.87017
