Sofroniou v R

Under section 23 of the Criminal Appeal Act 1968, the statutory considerations governing fresh evidence are relevant factors, not cumulative conditions. An unexplained failure to call evidence at trial is not decisive. The appellate court must assess the likely effect of the evidence and whether receiving it serves justice.

The common-enterprise hearsay exception permits acts and declarations made in furtherance of an ongoing conspiracy to be used against an absent alleged conspirator only where there is independent evidence connecting that person to the conspiracy. A preferable caution about such evidence will not render a conviction unsafe where the summing-up makes clear that other evidence supports the prosecution case.

The appellant was convicted at Reading Crown Court of conspiracies to supply cocaine and cannabis, and sentenced to six and a half years’ imprisonment. The prosecution alleged that he financed drug purchases by other conspirators. Its principal evidence comprised audio recordings of conversations, surveillance evidence and a taxi journey near the appellant’s home.

After leave was granted, he appealed against conviction. He relied on new transcripts and expert analysis of the recordings, contending that they showed references to other people named Leon and undermined the prosecution case. He also challenged the admission and jury treatment of declarations by co-conspirators made in his absence under the common-enterprise exception to hearsay.

1. Appeal dismissed. The new transcripts did not make the convictions unsafe. Under section 23 of the Criminal Appeal Act 1968, the factors in subsection (2) were not preconditions to receiving fresh evidence. The court had to assess its likely effect and the interests of justice.

2. Some new material could have weakened the prosecution’s contention that a conversation on 16 July showed that the appellant knew the conspiracy involved cocaine. It did not, however, affect the safety of the convictions. The jury could properly conclude from the other evidence that he financed the ongoing conspiracy without caring which controlled drugs it supplied. The further material about other persons called Leon did not affect the reasonable inferences available from the key conversations and surrounding circumstances.

3. The common-enterprise exception to hearsay, preserved by section 118(1)(7) of the Criminal Justice Act 2003, applied. There was admissible evidence of a conspiracy, the relevant conversations furthered its continuing drug-dealing operation, and there was some evidence apart from the conversations that connected the appellant to it. In particular, the taxi journey near his home could supply the required independent evidence. The statement made while money was being reconciled was a running record for the conspiracy’s operations, rather than inadmissible narration of a completed past event.

4. It would have been preferable to give the jury a caution on the use of acts and declarations made by absent co-conspirators. The omission did not make the verdict unsafe. The summing-up identified the surveillance and taxi evidence, so the jury understood that the case against the appellant was not founded on the recordings alone.

• Court of Appeal (Criminal Division) The court granted leave to appeal against conviction and dismissed the appeal: [2009] EWCA Crim 1360.
• Court of Appeal (Criminal Division) A renewed application for leave to appeal against sentence was refused by the Full Court on 16 January 2009.
• Reading Crown Court The appellant was convicted of conspiracies to supply cocaine and cannabis and received concurrent sentences of six and a half years’ imprisonment.