Kanu, R. v

A challenge to a jury summing-up requires a proper evidential basis. In a short trial, a judge need only remind the jury of the gist of the evidence. An obvious verbal slip or a concise correction will not render a conviction unsafe unless it could have misled the jury.

Under section 23 of the Criminal Appeal Act 1968, fresh evidence will not ordinarily be received to enable a convicted defendant to reopen a deliberate tactical decision not to call available witnesses. Such decisions are made at trial and may be revisited only in exceptional circumstances.

The applicant was convicted at Inner London Crown Court of possessing cocaine with intent to supply and possessing criminal property. He received concurrent sentences of seven and five years’ imprisonment.

He applied out of time for leave to appeal against conviction. He alleged that the trial judge had inadequately summarised his evidence. He also sought to adduce evidence from a Nigerian associate and from his wife, said to support his explanation for the cash found in his car.

The issues were whether the summing-up created an arguable ground of appeal and whether the proposed evidence should be received under section 23 of the Criminal Appeal Act 1968.

1. Leave to appeal was refused. The summing-up gave a fair and reasonable account of the applicant’s evidence. In a short trial, the judge was entitled to confine the reminder to its gist. The references to horse fertiliser rather than horse tranquilliser were obvious slips which could not have misled the jury. The correction concerning the asserted £3,000 shortfall was concise but sufficient.

2. The court refused the application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. The proposed evidence did not provide a basis for allowing the appeal. The Nigerian witness was untraceable and unlikely to attend. His proposed evidence also created inconsistencies with the defence case and carried an obvious forensic risk. The wife’s proposed evidence similarly conflicted with the defence case statement.

3. The decisions not to call either witness at trial were tactical decisions. A defendant cannot ordinarily obtain a retrial merely because, after conviction and a change of legal representatives, a different line of defence appears preferable. Tactical decisions at trial may be reopened only in exceptional circumstances. No such circumstances existed here.

4. Pursuant to section 29 of the Criminal Appeal Act 1968, the court directed that six weeks spent in custody awaiting the application should not count towards sentence. The renewed first ground was completely without merit, and the fresh-evidence ground was hopeless.

• Court of Appeal (Criminal Division): Refused leave to appeal against conviction, refused permission to adduce fresh evidence, and ordered six weeks’ loss of time under section 29 of the Criminal Appeal Act 1968.
• Inner London Crown Court: In November 2011, the applicant was convicted by a jury of possession of cocaine with intent to supply and possession of criminal property. He received concurrent sentences of seven years and five years’ imprisonment.