Dodd, R v

When considering fresh evidence on a criminal appeal, the court must give particular regard to whether the evidence is capable of belief and whether there is a reasonable explanation for its earlier omission, under section 23 of the Criminal Appeal Act 1968. Evidence that is irreconcilable with reliable objective material, and whose earlier non-use is unexplained, need not be admitted. The court may also conclude that the convictions remain safe on the trial evidence.

The applicant had been convicted at Wood Green Crown Court of causing grievous bodily harm with intent, violent disorder and an aggravated dog-control offence following an altercation in which the complainant suffered serious injuries.

He applied out of time for leave to appeal against conviction. The application depended on admitting the evidence of a neighbour, Edward McInerney, who had given a police statement but had not been called at trial. The proposed evidence was said to support the applicant’s case of self-defence. The central issue was whether that evidence should be received and whether it rendered the convictions unsafe.

1. The applications were refused. The court refused an extension of time and leave to appeal against conviction. It had heard Mr McInerney’s proposed evidence de bene esse before deciding whether formally to receive it under section 23 of the Criminal Appeal Act 1968.
2. Section 23 required particular regard to whether the evidence was capable of belief and whether there was a reasonable explanation for the failure to adduce it at trial. Mr McInerney’s evidence was neither credible nor useful for determining the events. It conflicted materially with the CCTV evidence, which objectively showed significant stages of an incident that he claimed to have witnessed. His late and limited account of a knife was also unsatisfactory.
3. There was no reasonable explanation for the failure to call him. The court rejected the asserted confusion between him and the estate caretaker. The trial defence had considered calling witnesses and had instead made a tactical decision concerning his mother. The renewed reliance on his evidence was an attempt to revisit trial tactics rather than a justified omission.
4. In any event, the convictions were safe. The jury had been carefully directed, including on discrepancies in the complainant’s evidence, and had the benefit of the CCTV material. The applicant’s account of self-defence did not explain the complainant’s injuries, the knives bearing the complainant’s blood, the armed conduct of the co-defendants, or the baseball bat shown at the scene.

• Court of Appeal (Criminal Division): refused the applicant’s out-of-time application for leave to appeal against conviction.
• Crown Court at Wood Green: convicted the applicant on 12 December 2008 of causing grievous bodily harm with intent, violent disorder and an aggravated dog-control offence.