Jones, R. v

Where an application for leave to appeal conviction relies on fresh evidence, the court must have sufficient material to assess and apply section 23. An account from a co-defendant may potentially assist the applicant, but the court may adjourn rather than determine the application where important contemporaneous material is absent.

The applicant sought leave to appeal his murder conviction. His principal ground relied on a new statement by his brother and co-defendant, Stewart Jones, who had pleaded guilty to murder and had not given evidence at the trial.

The court was prepared, for the purpose of the hearing, to assume that the brother's proposed evidence might have assisted the applicant. It lacked the trial solicitors' file, counsel's explanations, earlier proofs, psychiatric material and other contemporaneous documents. The issue was whether the court could assess the fresh-evidence ground under section 23 on that incomplete material.

1. The application was adjourned. The court could not properly assess and apply section 23 without substantially fuller material concerning the co-defendant's earlier accounts and the reasons he had not given evidence.
2. The fact that the co-defendant was a compellable witness did not conclusively determine the application at that stage. It could, after further consideration, prove dispositive.
3. The applicant was required to obtain every proof of evidence and all material in which the co-defendant had given an account of the events, including psychiatric reports and contemporaneous notes. The prosecution was to disclose the pre-sentence report in its possession.
4. The matter was reserved to the same constitution and was to be listed for a full-day hearing after the parties had agreed a timetable for disclosure and preparation.

• Court of Appeal (Criminal Division): The applicant's application for leave to appeal conviction was adjourned pending further disclosure and preparation.