A9. The rejection

The full application, including the Crown response, goes to a judge who delivers a ruling as to whether it contains genuine fresh evidence that merits an inquiry into the conviction.

The success rate of such applications is vanishingly low, so it is not very surprising that this one was rejected. What is interesting is the reasons given for the rejection.

To understand these reasons, we need to bear in mind exactly what the judge is ruling on.

He is not re-opening the case. He is merely deciding whether the case should be re-opened.

What the application has to demonstrate

The purpose of the application is to convince the judge both

  • that fresh evidence has emerged since the trial, and
  • that it creates a sense of unease or disquiet regarding the original conviction, sufficient to warrant a review of the trial.

If the fresh evidence is considered either not genuinely new, or unlikely to have changed the verdict even if it had been presented at the trial, the application is rejected.

The judge’s ruling

In this case, the judge considered that my report, while interesting, offered only a possibility that the transcript might be wrong, a circumstance, he argued, that is well recognised by the law, and anticipated by the standard directions given by the trial judge  (i.e. the instruction to the jury to use the transcript only as an aid and to reach their own opinion about the audio).

In addition, he argued, since the recording contained far more evidence against the defendant than the single phrase ‘at the start we made a pact’, my evidence that this one phrase might have been inaccurate, even if it had been presented to the court at the time, is not likely to have changed the outcome of the trial.

Those are the facts of the matter. I am sure it has raised many questions in your mind. If so, you might like now to consider the questions I believe need to be raised about this matter

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