Solomons v R.

Fresh evidence will not assist an appellant unless it is capable of belief. Where that threshold is met, the appellate court must then consider whether the evidence might have affected the jury’s verdict, while avoiding an assumption of the jury’s fact-finding role.

Evidence may properly be rejected as incapable of belief where it is inherently improbable, internally inconsistent, demonstrably untrue, or unsupported by reliable corroboration. If the fresh evidence is not credible, it need not be admitted and cannot undermine the safety of the conviction under the Criminal Appeal Act 1968.

The appellant was convicted at the Crown Court at Isleworth of six offences of importing Class A drugs. He received a sentence of 24 years’ imprisonment on one count, with concurrent sentences on the remaining counts.

His defence at trial was that cocaine concealed in his luggage had been placed there without his knowledge. On appeal, he relied on fresh evidence from Mustapha, who claimed that he had arranged for the drugs to be concealed in the appellant’s luggage and later recovered without the appellant’s knowledge.

The central issue was whether Mustapha’s evidence was capable of belief and, if it was, whether it might have affected the jury’s verdict.

1. Appeal dismissed. The court declined to admit the proposed fresh evidence and held that nothing heard on the appeal threatened the safety of the convictions.

2. Under section 23(2)(b) of the Criminal Appeal Act 1968, the first material question was whether Mustapha’s evidence was capable of belief. If it had been credible, the court would then have considered whether it might have made a difference to the jury’s verdict. In undertaking that second exercise, the court would have had to heed the caution in R v Pendleton [2002] 1 Cr AppR 441 against the appellate court taking over the jury’s function.

3. The evidence was not capable of belief. Each member of the court independently concluded that Mustapha was not a credible witness. His proposed account was inherently unlikely, raised substantial unanswered questions, and included demonstrably false statements.

4. In particular, the alleged method for recovering cocaine of very high value from an innocent passenger was implausible. The purported bank statements offered to show how the drugs were financed contained impossible dates and other features which led the court to treat them as forgeries. His account of the packaging and transfer of the drugs also materially conflicted with the evidence of what customs officers found.

5. The court made allowance for the fact that Mustapha gave evidence by video link, but held that nothing he said could be relied upon without independent reliable corroboration. There was a strong circumstantial case at trial, and the jury had rejected substantially similar evidence from Ike. The new account added nothing capable of casting doubt on the verdicts.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed in [2006] EWCA Crim 419.
• Crown Court at Isleworth: The appellant was convicted of six offences of importing Class A drugs and sentenced by Judge Lowen.