Adamjee v R.

Purported fresh evidence should not be received unless the applicant provides satisfactory testamentary proof from those involved in obtaining evidence said to have been unavailable at trial. Unexplained delay, an unexplained approach to the proposed witness, and uncertainty about the provenance of supporting material may justify refusal of leave to appeal out of time.

Under Criminal Appeal Act 1968, section 23(2), fresh evidence must also be capable of belief and provide a realistic basis for questioning the safety of the conviction. Where the proposed account is inherently implausible and contradicted by contemporaneous, admitted evidence, the court may reject it without receiving it.

The applicant was convicted at Nottingham Crown Court of entering into a money-laundering arrangement. He was sentenced to seven years’ imprisonment.

About 18 months after conviction, he sought leave to appeal out of time on the basis of a witness statement from his nephew, Abid Mohammed. The statement asserted that Abid had conducted the transactions without the applicant’s knowledge. The applicant also sought directions to secure Abid’s attendance or to receive his evidence by live link from Bangladesh.

The central issues were whether the alleged fresh evidence had been properly established and whether it could reasonably affect the safety of the conviction.

1. The court refused leave to appeal out of time, refused the requested directions, and declined to admit Abid Mohammed’s proposed evidence.

2. The applicant had not supplied satisfactory evidence explaining why contact with Abid was not made until long after conviction, how Abid had been approached by the family, or why emails purportedly from him appeared to have different authors. No attempt had been made to locate or obtain evidence from Abid at trial. His refusal to attend the appeal created an enhanced need for reliable evidence about the delay and provenance of the new account.

3. Those deficiencies alone justified refusing leave out of time. The court nevertheless considered the proposed evidence on the assumption that it had not been reasonably available at trial. Under section 23(2)(a) and (b) of the Criminal Appeal Act 1968, it had to be capable of belief and capable of providing a ground for allowing the appeal.

4. It was not. The account contradicted contemporaneous text messages and Dr Aziz’s evidence, which distinguished the applicant, known as “Shoib”, from Abid. The claim that Abid had impersonated the applicant while using the applicant’s business telephone was implausible and unexplained. It also undermined parts of the applicant’s trial defence.

5. The jury had already considered the substance of the defence that Abid alone was responsible. Even with Abid’s proposed statement, there was no reasonable possibility that the jury would have reached a different verdict. The evidence was patently false and could not cast doubt on the safety of the conviction.

• Court of Appeal (Criminal Division)—Refused the application for leave to appeal out of time, declined to receive the proposed fresh evidence, and refused directions: [2012] EWCA Crim 793.
• Nottingham Crown Court—Convicted the applicant on 3 August 2009 and sentenced him to seven years’ imprisonment on 7 September 2009.