Kay v R

Kay v R

The full Facebook message exchange constitutes cogent fresh evidence directly relevant to the credibility of the complainant and the applicant. Its absence at trial rendered the conviction unsafe, as it raises a reasonable doubt as to whether the applicant would have been convicted had the evidence been before the jury. There was a reasonable explanation for the failure to adduce the evidence at trial. The delay in bringing the appeal was not excusable, but the interests of justice required an extension of time and the admission of the fresh evidence.

Parties
Appellant: Danny Steven Kay; Respondent: Regina
Jurisdiction
England and Wales
Judgment Date
21 December 2017
Procedural Posture
Criminal Appeal / Judgment on Application for Extension of Time and Appeal Against Conviction
Outcome
conviction quashed
Legal Topics
Rape, Fresh Evidence, Appeal Out of Time, Jury Directions, Consent, Reasonable Belief in Consent
Criminal Law Rape Fresh Evidence Appeal Out of Time Jury Directions Consent Reasonable Belief in Consent

Case Brief

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Parties

Danny Steven Kay

Appellant

Regina

Respondent

Procedural Posture

Criminal Appeal / Judgment on Application for Extension of Time and Appeal Against Conviction

Legal Issues

  1. 1 Whether fresh evidence (Facebook messages) should be admitted on appeal
  2. 2 Whether the conviction is unsafe in light of the new evidence
  3. 3 Whether the jury directions on consent and reasonable belief were flawed

Ratio Decidendi

The full Facebook message exchange constitutes cogent fresh evidence directly relevant to the credibility of the complainant and the applicant. Its absence at trial rendered the conviction unsafe, as it raises a reasonable doubt as to whether the applicant would have been convicted had the evidence been before the jury. There was a reasonable explanation for the failure to adduce the evidence at trial. The delay in bringing the appeal was not excusable, but the interests of justice required an extension of time and the admission of the fresh evidence.

Court Disposition

conviction quashed

Orders

  • conviction quashed
  • no retrial ordered