Kappler, R. v

Where fresh evidence materially undermines the apparent independence and credibility of a prosecution witness whose evidence was presented as corroboration, the appellate court must assess the evidence cumulatively. If it cannot feel sure that the jury would necessarily have convicted had the material been available at trial, the conviction is unsafe and should be quashed.

CCTV evidence and expert comparison evidence may properly assist a jury on identity where their limits are made clear. A trial judge may refuse to discharge a jury after late evidence is admitted where the decision is fair and within the judge’s discretion.

The appellant was convicted at Teeside Crown Court of two counts of kidnapping and blackmail, and received ten-year sentences on each count. The prosecution alleged that he participated in the abduction of two businessmen and demanded £600,000.

On appeal, the appellant relied on newly available material from an accountant’s investigation into a VAT fraud connected with the complainants. The material concerned Mr Golightly, whose evidence that he sent a fax directing payment to the appellant’s business had been presented as potentially independent support for the complainants.

The appeal also challenged the admission of CCTV evidence concerning clothing purchases and the refusal to discharge the jury after late evidence was admitted. The central issue was whether the fresh material made the convictions unsafe.

1. Appeal allowed. The court granted an extension of time and leave to advance the fresh-evidence ground. It quashed the convictions and ordered a retrial.

2. The fresh material had to be assessed as a whole. It went beyond the shared address of Mr Golightly and the alleged recipient of a repayment. Several matters were genuinely new and could not have been available at trial. Taken together, they gave a proper basis for contending that Mr Golightly knew of, or benefited from, the VAT fraud.

3. That possibility materially altered the proper view of his evidence. At trial, his evidence had been put before the jury as capable of providing independent support for the complainants’ allegation that the appellant was responsible for the kidnapping and blackmail. The judge had understandably done so on the information then available, and was not open to criticism for it. However, if the new material had been available, the trial and summing-up would have taken a significantly different form.

4. The court could not feel sure that the jury would necessarily have convicted in light of the new material. The convictions were therefore unsafe.

5. The other grounds did not disclose error. The CCTV and clothing-comparison evidence could assist the jury on whether the appellant was at the shop. The judge correctly made clear that it could not facially identify his companion. The judge also acted fairly, and within his discretion, in declining to discharge the jury after admitting the late evidence concerning a fire.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the convictions and ordered a retrial: [2006] EWCA Crim 1224.
• Crown Court at Teeside: On 14 October 2003, convicted the appellant of two counts of kidnapping and blackmail and imposed ten-year sentences on each count, with a consecutive twelve-month sentence for breach of a suspended sentence.