Javaid v The Crown

On an appeal against conviction founded on alleged fresh evidence, the appellate court must assess whether the evidence is credible. Evidence said to establish an alibi cannot undermine the safety of a conviction where the surrounding circumstances show that it has been fabricated.

The appellant was convicted at the Crown Court at Wolverhampton, before HHJ Dudley and a jury, of sexual assault. Identification was a substantial part of the prosecution case and the appellant denied both the assault and being present.

By leave of the full court, he appealed against conviction on the sole ground that fresh evidence showed that he had been in Pakistan on the date of the offence. The evidence consisted principally of passport stamps and evidence from the appellant, his father and his brother. The central issue was whether the asserted alibi evidence was credible.

1. Appeal dismissed. The court held that the alleged fresh evidence that the appellant was in Pakistan when the offence was committed was not credible and had been fabricated.

2. The passport contained genuine entry and exit stamps apparently recording travel to Pakistan between 1 and 15 June 2004. However, there was no supporting record from either the travel agent or Gulf Air of the asserted ticket purchase. If the stamps had not been applied on lawful entry and exit, old stamps had been obtained and were almost certainly placed in the passport after conviction and remand in custody.

3. The decisive issue was the credibility of the appellant’s father and brother. Both had a substantial opportunity, during the period between arrest and trial, to recall an overseas trip which, if genuine, would have established the appellant’s innocence. The court found it inconceivable that they would have forgotten such a trip, especially if it was the appellant’s first trip alone and given his psychological condition.

4. There were inconsistencies about where the appellant had stayed in Pakistan and the source of the ticket money. The court placed little weight on those discrepancies in themselves. Its conclusion instead rested on the implausibility that close family members would have failed to remember the alleged trip and on the absence of supporting travel documentation. The conviction therefore stood.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2007] EWCA Crim 1845.
• Crown Court at Wolverhampton: The appellant was convicted by HHJ Dudley and a jury of sexual assault on 10 November 2006.