Javid v R

Under Criminal Appeal Act 1968, section 23 gives the Court of Appeal an overarching discretion to receive evidence not adduced at trial where this is necessary or expedient in the interests of justice. In exercising that discretion, the court must have particular regard to whether the evidence is credible, admissible, reasonably unexplained in its earlier absence, and capable of affording a ground for allowing the appeal.

Fresh evidence which would not assist the defence, or would instead undermine the account advanced at trial, cannot satisfy the requirement that it might afford a ground for allowing the appeal. The court may therefore refuse to receive it and dismiss the appeal where the conviction remains safe.

The appellant was convicted at the Crown Court at Southwark of conspiracy to supply cocaine and sentenced to 25 years’ imprisonment. He appealed against conviction and renewed his application for leave to appeal against sentence.

His conviction appeal relied on alleged failures by the defence to adduce evidence concerning the proposed tenancy of premises used for the cocaine delivery, a property transaction said to explain his contact with his co-defendants, and a proposed witness said to support his account of his movements. The Court of Appeal heard two proposed witnesses de bene esse and considered further material.

The central issue was whether the proposed fresh evidence should be received under section 23 of the Criminal Appeal Act 1968, and whether it could render the conviction unsafe.

1. The appeal against conviction was dismissed, and the renewed application for leave to appeal against sentence was refused. The conviction was safe.

2. Section 23(1) of the Criminal Appeal Act 1968 confers an overarching discretion to receive evidence not adduced at trial where necessary or expedient in the interests of justice. Under section 23(2), the court must have particular regard to the evidence’s apparent credibility, whether it might afford a ground for allowing the appeal, admissibility at trial, and any reasonable explanation for the failure to adduce it.

3. The proposed evidence from Dadabhai was treated as apparently credible, but it concerned an answer which could readily have been elicited at trial. It was at most marginally relevant and could not have affected the result. It therefore did not meet the statutory requirement that it might afford a ground for allowing the appeal.

4. The documents concerning 12 Parklands were available at trial. They were liable to damage the defence account by showing that there was no genuine outstanding reason to meet the co-defendants on the relevant morning. Nazir’s evidence was either not credible or materially inconsistent with the appellant’s trial evidence and would likewise have hindered the defence. Neither item could justify allowing the appeal.

5. The court also declined to admit the material under the overarching interests-of-justice discretion. The circumstantial case was strong and none of the alleged failures by the defence team would have made a difference to the verdict.

6. A 25-year starting point for a conspiracy involving cocaine worth nearly £12 million was proper on the facts. The trial judge was entitled to regard the appellant as a principal player and overseer. The sentence was neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 1947, dismissed the appeal against conviction and refused the renewed application for leave to appeal against sentence.
• Crown Court at Southwark: The appellant was convicted on 22 July 2004 of conspiracy to supply cocaine and sentenced on 23 July 2004 to 25 years’ imprisonment.