By Paul Taylor QC
Court of Appeal in Northern Ireland
Fresh evidence – ESDA testing – Psychological report – reliability of interviews – CCRC referral
R v Goodhall
 NICA 24
JG had been convicted in 1977 of causing an explosion and of possessing a firearm with intent to endanger life or cause serious damage to property. He was sentenced to a total of 15 years imprisonment. The prosecution case at trial depended decisively upon statement of admission made by JG. The convictions were referred back to the NICA by the CCRC on the basis of fresh evidence relating to the reliability of JG’s statements. The new evidence was from an expert in ESDA testing (showing that words in the introduction to the statement – “in the presence of D/Const McCaul. Statement commenced at 10-5 PM” – were written at a later time), and a report from a clinical psychologist (Prof Taylor) who examined JG and opined that he was likely to have had great difficulty in understanding the nature and purpose of the police interview procedures, and questioned whether JG had the language skills and intellectual ability required to have crafted the statement that he is purported to have dictated to the officer who recorded it verbatim, and that he might be considered to lack capacity to be interviewed without an appropriate adult.
NICA: Appeal dismissed.
JG gave inconsistent accounts of the circumstances surrounding his interview, whether he signed the statement, whether he made the admissions, that they were untrue. The NICA concluded that “…We are satisfied that the appellant gave false evidence to the original trial court that he had not made oral admissions and that the signatures on his statements were not his. The appellant’s case is that he was perfectly able to understand what he had admitted and he has offered no excuse either in his evidence nor in the proposed evidence of Prof Taylor for the course he took at trial….”
The Court considered the principles relating to the admission of fresh medical evidence “in cases where the defendant had the opportunity to admit the evidence at his trial, decided not to do so and then sought to introduce it on appeal.”
The evidence in JG’s case indicates he suffered cognitive impairments involving verbal comprehension, working memory and immediate memory for verbally presented information. “There is no evidence, however, to suggest that the appellant’s cognitive impairment would have contributed to his failing to understand that he was making a false statement of admission. At its height the evidence suggests that he may not have appreciated the serious consequences of the admissions.” However, the statement contained considerable detail in relation to the circumstances of the bombing and there was no reason to doubt its broad reliability.
The Court did not consider that the psychological evidence should be admitted in the interests of justice, or that it affords a basis for allowing the appeal, or that there is a reasonable explanation for not having explored it at trial.
The Court concluded that the ESDA evidence did not affect the safety of the conviction because there was “no indication that there was any irregularity in relation to the body of the statement and… there is no evidence to indicate that the interview notes were rewritten.”
The main English/Welsh authority dealing with fresh evidence on appeal is Erskine  2 Cr.App.R 29 (not quoted in Goodhall). At para 39 Lord Judge LCJ stressed the “one trial principle (that is utilising all available defences at trial and not holding any back for use at the appeal stage):
“Virtually by definition, the decision whether to admit fresh evidence is case and fact specific. The discretion to receive fresh evidence is a wide one focusing on the interests of justice. The considerations listed in subs.(2)(a)–(d) are neither exhaustive nor conclusive, but they require specific attention. The fact that the issue to which the fresh evidence relates was not raised at trial does not automatically preclude its reception. However it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been but were not put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to be deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of these omissions is offered, it is highly unlikely that the “interests of justice” test will be satisfied.”
However, the Court of Appeal has allowed such material to be adduced even if there is no reasonable explanation if, for example, the failure to adduce it was as a result of the trial lawyers incompetence, or the appellant’s mental health, The ultimate test relates to the strength of the new evidence and whether the new evidence casts doubt on the safety of the conviction. In T (MC)  EWCA Crim 3229. See para 20 Moses LJ stated that:
“…The test whether an explanation is reasonable is not always easy to apply. The reasonableness of the explanation probably depends upon a quite separate question of the court's view of the cogency and impact of the fresh evidence. Courts will be driven by a desire to act in the interests of justice and will not therefore exclude evidence which may have an important impact on the safety of the verdict merely because that evidence might have been obtained earlier. But nevertheless, caution is needed lest the appeal amounts to no more than an attempt to have a second go.”
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