Jones, R. v

Under Criminal Appeal Act 1968, section 23, fresh evidence may be received only where it is necessary or expedient in the interests of justice. The court must consider its admissibility, credibility, potential to support the appeal, and the explanation for its absence at trial. The ultimate question remains whether the conviction is safe.

A defendant will very rarely have a reasonable explanation for failing to call a competent and compellable co-defendant merely because that witness was unwilling to testify. Exculpatory evidence volunteered after conviction does not itself make the conviction unsafe. Exceptionally, evidence withheld at trial may be received where its importance clearly undermines the conviction’s safety.

The applicant was convicted at Cardiff Crown Court of murdering Shirley Oliver and received life imprisonment with a minimum term of 13 years. His brother, Sam, had pleaded guilty to the same murder.

The applicant denied being a party to the murder. He accepted that he had driven the car, helped remove the body and stamped on it, but said that he had acted in fear of Sam, who had bullied him for years. After the applicant’s conviction, Sam gave a statement and oral evidence tending to exculpate him.

The application for leave to appeal, referred by the Single Judge to the Full Court, relied solely on that fresh evidence. The central issue was whether it should be received under section 23 of the Criminal Appeal Act 1968 and, if so, whether it rendered the conviction unsafe.

1. Application dismissed. The court declined to receive Sam’s post-conviction evidence and held that it neither afforded grounds for allowing the appeal nor undermined the safety of the conviction.

2. Section 23 of the Criminal Appeal Act 1968 required the court to consider admissibility, whether the evidence was capable of belief, whether it might afford grounds for allowing the appeal, and whether there was a reasonable explanation for its absence at trial. The ultimate question remained the safety of the conviction.

3. The evidence would have been admissible. However, Sam had been available to be called at trial and was a competent, compellable witness. His unwillingness to testify voluntarily, even when expressed through his lawyers, did not provide a reasonable explanation for the defence decision not to summon him. The court followed the principle in R v Stokes (unreported, 2nd May 1997) that a defendant cannot ordinarily elect not to call such a witness and then rely on the witness as fresh evidence after conviction.

4. The rare cases in which evidence withheld for tactical reasons had been received did not establish a general exception. They concerned exceptional circumstances in which the evidence had a significant effect upon the safety of the conviction.

5. Sam’s account was only partly capable of belief and did not satisfactorily address the evidence suggesting the applicant’s participation and support for Sam after the killing. Evidence tending to exculpate the applicant was insufficient without a clear basis for finding that it rendered the conviction unsafe. The court therefore concluded that receiving it was neither necessary nor expedient in the interests of justice.

• Court of Appeal (Criminal Division): The Single Judge referred the application for leave to appeal against conviction to the Full Court. The Full Court dismissed the application.
• Crown Court at Cardiff: On 19 December 2005, the applicant was convicted of murder. On 21 December 2005, he was sentenced to life imprisonment with a minimum term of 13 years.