Alecu v R.

On a criminal appeal based on fresh evidence, the court must first decide whether the evidence is capable of belief and may afford a ground for allowing the appeal. If it is admitted, the court must evaluate it with the remaining evidence and decide for itself whether the verdict is unsafe. A hypothetical jury response may assist in a difficult case, but it does not displace the court’s responsibility.

Fresh evidence that is materially inconsistent and shown to have been collaboratively tailored may be rejected as not credible. A factual misdirection will not render a conviction unsafe where, assessed against the whole evidence, it could not have affected the safety of the verdict.

The appellant had been convicted of murder at the Central Criminal Court and sentenced to life imprisonment with a minimum term of 21 years. His earlier appeal against sentence had been dismissed.

With an extension of time, he appealed against conviction. He relied on evidence from two witnesses who said that they had seen his Mercedes leave before the attackers returned from the ambulance, and on an asserted factual misdirection concerning mobile telephone cell-site evidence. The central issues were whether the proposed evidence should be admitted under section 23 of the Criminal Appeal Act 1968 and whether either ground made the murder verdict unsafe.

1. Appeal dismissed. The court held that the verdict was safe.

2. Under section 23(2)(a) and (b) of the Criminal Appeal Act 1968, the court had first to decide whether the proposed fresh evidence was capable of belief and might afford a ground for allowing the appeal. If admitted, the ultimate question was for the appellate court itself: whether, in the context of all the evidence, the verdict was unsafe. The possible reaction of the trial jury was only a useful cross-check in an appropriate case. That approach followed R v Pendleton [2001] UKHL 16 and Dial & Another v State of Trinidad and Tobago [2005] UK PC 4.

3. The proposed evidence of Cirlan and Casaneanu was not capable of belief. Their oral accounts materially differed from their earlier statements. The same significant inconsistencies and the same demonstrable error about the Mercedes’s direction of travel supported the conclusion that they had collaborated and falsely claimed to have seen the car leave. The court therefore declined to admit their evidence under section 23. It further held that, even if admitted, it would not have affected the safety of the verdict.

4. The judge’s reference to the appellant remaining in the vicinity at 9.16 pm was capable of misleading the jury about the precise point at which he left. Proper sector analysis nevertheless showed that the cell-site evidence was consistent with his presence during the attack and with his departure shortly afterwards. In light of the timing of the attack, the group’s observed return to the cars, and the narrow interval before the Mercedes left, the misdirection had no impact on the verdict’s safety.

5. The evidence of a joint enterprise to carry out an armed attack was overwhelming, and the appellant’s account of innocent attendance was not credible. The conviction consequently stood.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction.
• Court of Appeal (full court): on 20 February 2007, dismissed the appellant’s appeal against sentence.
• Central Criminal Court: convicted the appellant of murder by a 10–1 majority on 23 December 2005 and imposed life imprisonment with a minimum term of 21 years on 27 January 2006.