Hi, hoping for some support and advice here, hope i do it right x

[suzanne]

My ex husband has been accused of a rape 25 yrs ago, he had an one night stand with a woman, and she cried rape, there was DNA present as he had had sex with her, which he never denied, the lady died in 2000, but the case went ahead in January, she obviously was not there to be cross examined and her statement was read out, there are so many discrepancies in the whole case, her story makes no sense, but after the jury were unable to come to a decision the judge agreed to take a majority, they considered him to be guilty, hes now in prison serving 8 years, his 3 children are left devastated and a once proud man has been crushed, we are at present commencing the appeal, as we have now obtained all evidence packs and there are some things that were not presented in court. I cannot believe this has happened, and I have lost all faith in the justice system, which makes me doubt he will be successful in his appeal, his children will be adults when he comes home.

[Casehardened]

[QUOTE=suzanne;27701 there was DNA present as he had had sex with her, which he never denied, the lady died in 2000, but the case went ahead in January, [/QUOTE]

Hi,

Welcome to the forum though sorry to hear of your situation, which is most unusual.

Hope you don't mind a query which might explain this delay.

Obviously your ex's DNA was found on the woman at the time of the initial allegation and investigation 25 years ago. Presumably a match has occurred only recently thus leading to the trial in January: was this as a result of your ex being arrested for an unrelated offence?

[suzanne]

Yes, my ex husband was in a relationship with an alcoholic some 2 yrs ago, she pulled a knife out on him when drunk, and he called police, they were both taken to police station and both dna'd which is how they got the match

[Casehardened]

Hi Suzanne,

Thanks for that information; I was worried that it might have been a similar (i.e. sexual assault) offence which would have been disclosed to the jury at the trial thus leading them to the 'two strikes and you're out' view.

Coming back to the trial, I fail to see how justice can be done if the complainant was not available for cross-examination; hopefully Rights Fighter will see this thread and may be able to advise on the possibility of an appeal. Did the trial barrister offer your ex an opinion as to whether an appeal should be attempted?

* Sorry just reread your OP in which you indicate that an appeal is under way*

[suzanne]

I spoke to the Barrister after sentencing and he said he wouldnt appeal because he would only appeal for a lighter sentence and in his opinion he has a light sentence anyway....I dont understand what happened to the Barrister, we had faith in him that he was dealing with the case to help my ex husband, but I do not feel this is what he did, he didnt disclose certain information that would have helped the case....we have found a solicitor that is helping us, we have all evidence packs and court transcripts.... we were told the jury had to be sure he didnt do it without a shadow of doubt, but there obviously was alot of doubt because they couldnt agree, it must be that several jurors changed their decision in order to close the case...is this really fair?

[Casehardened]

I agree that there should have been a great deal of doubt in the jury's collective mind if they had only heard one side of the story; after all if the complainant passed away in 2000, long before the DNA match, the statement must be from the original allegation, 25 years ago.

I do wonder if she still would have wanted to proceed with the allegation so long after the event had she have been still alive.

To be granted leave to appeal, fresh evidence must be produced (unlikely with such a historic allegation) or the judge's summing up must have been biased (this would need a barrister or solicitor to look over the transcript). Presumably your ex had admitted consensual sex so there is no point in challenging the DNA forensics.

It's good that you have a helpful solicitor on board.

[suzanne]

But what if his Barrister failed to produce evidence at the time that he knew? surely this is wrong and grounds to doubt that he had a secure convictionx

[Casehardened]

But what if his Barrister failed to produce evidence at the time that he knew? surely this is wrong and grounds to doubt that he had a secure convictionx

Unfortunately if the evidence was available at the time of the trial (but simply not used for whatever reason) it would not be considered to be fresh evidence for appeal purposes.

I personally think that conviction was very unfair in the circumstances but again unfortunately, the court of appeal will seldom interfere with a jury's verdict. I do think your best bet would be to carefully look at the judge's summing up: it may well be that given the evidence presented (or not, in the complainant's case) that he should have directed the jury to bring back a not guilty verdict.

I must qualify this to say it is only my opinion, a solicitor or barrister needs to look at the trial transcript.

[Faith]

suzanne, it happens a lot that the barrister you are using says there are no grounds for appeal.

That does not necessarily make it true

Sometimes a barrister just wants to wash his hands of a case and move on. What you need to do now is contact a new solicitor and explore the possibility of an appeal.
Where you are lodging an appeal on an evidential basis, CH is quite right, if the evidence is available before trial, it can;t be used.
That is even if the barrister was wrong in deciding not to use it and even if nobody knew the evidence existed. If it is possible it COULD have been found then the counter argument would be that you should have looked harder.

A decent appeals solicitor may look through the transcript of the trial and dig up something that you haven't considered. (i.e a procedure that was not met)

Please don't lose hope. Where are you based? (just a county will do)
My best reccommendation for appeals in these kind of cases is Chris Saltrese. But if you post your county, someone close by may be able to suggest someone near to you.

Rights Fighter is our appeals expert but I know she is very busy at the moment so it may be a while before she sees this. In the meantime, keep coming back for support and start researching some solicitors. Then get that trial transcript and get those fighting gloves on.

Just to repeat...just because the barrister at trial said there were no grounds for appeal, that does not make it so.

Take care, stay strong.

[Rights Fighter]

Faith, the OP says she already has a solicitor looking at it.

The Court of Appeal will very rarely consider evidence that was available at the time of trial but they have to be satisfied that the barrister was flagrantly negligent in not putting that evidence forward.

The applicant would need to sign a 'waiver of privilege' so that CA can ask trial sol/counsel why this evidence was not put. Unfortunately some barristers will lie through their teeth and claim that the client (defendant) instructed them not to use it. If that happens then you have a very high hurdle to get over. it's not impossible but it IS ALMOST impossible.

I had a successful appeal where this happened. Those who know me and know the case will know it as my 'Mr Kaz appeal'.

The barrister failed to use certain evidence (which I found in the family court bundle) that she knew existed. When I sent the application for appeal she claimed that "it was the client's express instruction not to use it".

Fortunately we had a sensible panel at the appeal and they decided that this was an absolute nonsense and quashed the conviction. I now have a nice no-win no fee sol on the case - the trial sol and barrister are being sued and the client looks like he is likely to be well compensated for that 'flagrant negligence'.

I have to say though, that is a very rare case indeed. Do not get your hopes up on that score, although of course it is worth following through, depending on what the evidence was/is.

Misdirections or missed directions by the trial judge can assist with a quashed conviction but is likely to result in a retrial. You can then make use of the evidence to test it before the jury if it is relevant.