Boksh, R. v

A late-discovered exhibit does not ordinarily make a conviction unsafe where there was no deliberate suppression, it was disclosed promptly when noticed, and the defence had a fair opportunity to address it. The trial judge may admit such evidence and refuse an adjournment or discharge of the jury after balancing its limited significance, the available cross-examination, and the speculative value of further forensic investigation.

An imperfection in a summing-up will not render a verdict unsafe where the jury received a clear direction on the material issue and the remaining evidence of guilt was substantial.

The appellant was convicted at Southwark Crown Court of possessing heroin and cocaine with intent to supply, and of possessing cocaine. The Crown alleged that he was a runner in a drug-distribution operation conducted from a flat. He maintained that he was merely a drug user and customer.

During the trial, a small written note was found inside the security packaging containing cash said to have been taken from the appellant. Its existence had not been recorded or disclosed before trial. The judge admitted the note, refused an adjournment or discharge of the jury, and directed the jury that there was no evidence identifying its author.

The appeal challenged the non-disclosure, the admission of the note, the refusal of further time for forensic enquiries, and the adequacy of the summing-up.

1. Appeal dismissed. The court held that the convictions were safe. The late discovery of the note was unfortunate, but did not amount to an abuse of process or justify a stay, discharge of the jury, or retrial.

2. There was no basis for finding deliberate police or prosecutorial misconduct. The note had not been appreciated as part of the exhibit, and was disclosed once noticed. The authorities concerning serious and wrongful withholding of material, including R v Ward [1993] 1 WLR 629, were materially different.

3. The judge was entitled to admit the note despite the complaint based on section 78 of the Police and Criminal Evidence Act 1984. Its significance was limited: the Crown relied on its similarity to drug-related records in the flat, not on an allegation that the appellant wrote it. The defence had time to take instructions and cross-examine the relevant officers. Handwriting, fingerprint, and DNA enquiries were speculative, while an adjournment would likely have required the jury to be discharged.

4. The judge’s response to the jury’s question correctly made clear that there was no evidence identifying the author of the writing. Although the summing-up could more fully have addressed the police evidence concerning the note, there was no realistic risk that the jury treated the note as having been written by the appellant.

5. There was substantial independent evidence supporting the verdict, including surveillance, records bearing the appellant’s name, his DNA profile on drug wraps, cash, the co-defendant’s evidence, and post-conviction admissions. Any shortcoming concerning the note therefore did not affect the fairness of the trial or the safety of the verdict.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2003] EWCA Crim 1145.
• Crown Court at Southwark: On 23 July 2001, the appellant was convicted of offences of possessing class A controlled drugs, including heroin and cocaine, with intent to supply.