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Dunn & Anor v The Crown

A conviction may be unsafe where there is a disclosure failure that significantly undermines the credibility of an important witness.

http://www.bailii.org/ew/cases/EWCA/Crim/2016/1392.html

In 2006 Mr Dunn and Mr Higgins were tried and convicted of murder. Both defendants were implicated by the evidence of a witness, Maria Vervoort.

At trial Ms Vervoort's credibility was called into question based on lies told in the Family Court and other evidence regarding her reputation for dishonesty.

In 2009 Mr Dunn had an unsuccessful appeal, based on further material concerning Ms Vervoort. In 2007 she provided evidence in the trial of Conrad Jones alleging that he had threatened her not to testify in the original murder trial. At this trial there was cell cite evidence which indicated that her phone was not at the place of the alleged meeting, and police notes regarding her first account which may not to have been disclosed in 2006 (by this current appeal the Court of Appeal concluded they had not been).

The appeal court rejected Mr Dunn's appeal in 2009, finding that the evidence did not call into question her reliability so as to affect the safety of the murder conviction.

In 2014 Mr Jones' conviction was overturned. This followed disclosure of surveillance evidence which demonstrated that Mr Jones could not have met with Ms Vervoort on the dates alleged. This evidence was not available to Mr Dunn's legal team during his appeal in 2009 and undermined the court's express assumption that the prosecution had performed its duty to make disclosure of the appropriate material.

The CCRC referred Mr Dunn's case to the Court of Appeal following further evidence which undermined Ms Vervoort's credibility and revealed further disclosure failings by the prosecution concerning information from the criminal justice protection unit further supporting suspicions of dishonesty.

Held:

The credibility of Ms Vervoort was central to the defence in 2006 and, although they had an amount of material available to them to challenge that credibility, they were still entitled to other important material which the prosecution withheld.

The subsequent surveillance details relating to the alleged meeting of Ms Vervoort and Mr Jones were not available during trial in 2006 but were relevant to Mr Dunn's appeal in 2009 and should have been disclosed.

The court considered cases in the context of appeals based on fresh evidence, namely: Pendleton [2002] 1 Cr App R 34; Dial [2005] 1 WLR 1660; and Fraser v HM Advocate [2011] UKSC 24 (in the context of non-disclosure.)

The court also drew attention to the case of Laing [2005] EWCA Crim 2772 in which relevant material relating to the credibility of two important witnesses was not disclosed at trial. This resulted in a lack of balance and may have swayed the jury regarding their certainty of guilt.

In these circumstances it is possible that the jury might have viewed the cases against Mr Dunn and Mr Higgins differently had the further information been available.

Both convictions quashed.

 

18 October 2016

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