Connolly v R.

A trial judge may reconsider an earlier ruling which prevented the prosecution from advancing a point where developments during the trial materially clarify its relevance. The judge must then ensure that the alteration does not cause prejudice which prevents a fair trial.

An appeal against conviction will not succeed where late-developed visual evidence was fairly ventilated, any further expert evidence could not exclude the prosecution’s limited case of consistency, and the appellate court is satisfied that the jury’s verdict would necessarily have been the same. The ultimate question is whether the conviction is safe.

The appellant was convicted at the Crown Court at Maidstone of the murder of Christopher Alaneme and of wounding Mark Davies with intent to cause grievous bodily harm. The prosecution case was that he had used the single knife involved in both attacks.

The appeal concerned CCTV footage from inside Bar One. Near the close of the prosecution case, the trial judge initially prevented the prosecution from relying on the footage as consistent with the appellant being a third attacker of Davies. After evidence from a co-defendant and further examination of the footage, the judge permitted cross-examination and comment on that issue, and refused an adjournment or discharge of the jury for expert evidence.

The central issue was whether that late development deprived the appellant of a fair trial and rendered the convictions unsafe.

1. Appeal dismissed. The court held that the convictions were safe.

2. The prosecution’s later reliance on the CCTV footage was a significant development in its case. The trial judge had initially been entitled to regard the proposed point as too late. However, subsequent evidence and a fuller examination of the footage made the position clearer. The judge was entitled to revisit the earlier ruling and permit the prosecution to put the point, provided that the appellant could still receive a fair trial: [44], [47]–[48].

3. The jury were entitled to follow the prosecution’s evidential reasoning. They could conclude that the attack on Davies was carried out by three members of the Peckham group, that two were Beaney and Giblin, and that the third person in dark clothing was the appellant. The images did not permit a facial identification. The prosecution case was only that the clothing and images were consistent with the appellant being that person: [31], [56].

4. The refusal to adjourn the trial or discharge the jury did not create unfairness. The appellant had not previously needed to obtain an expert report because the prosecution had not earlier put its case in that way. The appellate court therefore adjourned the appeal to permit such evidence to be obtained: [51]–[52].

5. The expert identified deficiencies in the footage but could not show that the person in dark clothing was not the appellant. He accepted that the images were consistent with the appellant. The court held that the jury would necessarily have reached the same verdict even if they had heard that evidence: [53]–[55]. Looking at the case as a whole, the conviction was safe: [57].

• Court of Appeal (Criminal Division) The appellant’s appeal against conviction was dismissed. The court held that the late-developed CCTV point had not deprived him of a fair trial and that the convictions were safe.

• Crown Court at Maidstone On 10 December 2007, before Mr Justice Goldring, the appellant was convicted of murder and wounding with intent to cause grievous bodily harm.