Hai, R. v

Under Criminal Appeal Act 1968, section 23, the Court of Appeal may receive fresh evidence only where that is necessary or expedient in the interests of justice. It must have particular regard to the evidence’s credibility, its capacity to provide a ground for allowing the appeal, its admissibility, and any explanation for not adducing it at trial.

A retraction that is wholly incredible and cannot undermine the evidence accepted at trial does not provide a ground for an appeal. In those circumstances the court may refuse to admit it, refuse leave to appeal, and refuse an extension of time.

The appellant had been convicted of murder at the Central Criminal Court after a jury trial. His application for leave to appeal, brought more than two and a half years late, relied principally on new statements from a Crown witness, the witness’s brother, and his uncle.

The Crown witness had given evidence identifying the appellant as a participant in the fatal attack. He later retracted that evidence and alleged police pressure. The appellant sought to adduce the retraction and the supporting statements under section 23 of the Criminal Appeal Act 1968, contending that the conviction was unsafe.

The court heard the proposed witnesses de bene esse. The central issue was whether their new evidence was capable of belief and could provide a ground for allowing an appeal.

1. The applications were refused. The court refused leave to appeal against conviction and refused the accompanying extension of time.

2. Section 23 of the Criminal Appeal Act 1968 permits the reception of evidence not adduced at trial only where necessary or expedient in the interests of justice. In applying that discretion, the court had to consider in particular whether the evidence was capable of belief, could afford a ground for allowing the appeal, would have been admissible at trial, and whether there was a reasonable explanation for its previous absence.

3. The court was entitled to hear the proposed evidence de bene esse in order to assess those matters. The Crown witness’s new retraction was wholly unsatisfactory and incredible. It was inconsistent with his earlier accounts, including his partial retraction, and he could not substantiate the asserted police threats or explain the critical inconsistencies. The brother’s and uncle’s evidence was also unreliable and afforded no assistance.

4. The court concluded that the essential evidence given by the Crown witness at trial was worthy of credit. In any event, the trial evidence formed a strong web of identification, circumstantial and mobile-phone evidence. The proposed challenge therefore could not render the verdict unsafe. It largely sought to rerun issues fully explored before the jury in an uncriticised summing-up.

5. The proposed fresh evidence was incapable of providing a ground for allowing an appeal. It was neither necessary nor expedient in the interests of justice to admit it. The substantial delay was also left without a real explanation.

• Court of Appeal (Criminal Division): The present court refused the appellant’s application to adduce fresh evidence, refused leave to appeal against conviction, and refused an extension of time.
• Court of Appeal (Criminal Division): A differently constituted court had already rejected a separate proposed ground concerning alternative counts and refused an extension of time: [2009] EWCA Crim 2157.
• Central Criminal Court: The appellant was convicted of murder on 12 December 2005 and sentenced to life imprisonment with a minimum term of 16 years, less time spent in custody.