Benguit, R v

Fresh evidence will not render a conviction unsafe unless, viewed against the evidence at trial as a whole, it creates a realistic possibility that the jury would have reached a different verdict. Further material bearing on a witness’s credibility must be assessed in light of the credibility challenges already put before the jury and any independent support for that witness’s account.

Evidence suggesting that another person may have committed the offence must provide a realistic basis for treating that person as an arguable alternative perpetrator. Generic similarities, remote circumstances and coincidence do not suffice where the distinctive features and context of the offences materially differ.

At his second retrial in 2005 at Winchester Crown Court, Omar Benguit was convicted of the murder of Jong-Ok Shin and sentenced to life imprisonment with a minimum term of 20 years. An earlier appeal against conviction was dismissed on 12 July 2005.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, Benguit challenged the safety of his conviction. He relied on BB’s inconsistent post-trial media accounts, evidence said to suggest that Danillo Restivo might have committed the murder, and proposed CCTV expert evidence said to undermine BB’s account of giving Benguit a lift shortly before the killing.

The appeal was dismissed and the application for leave to appeal on the CCTV ground was rejected.

1. The decisive question was whether the fresh material made the conviction unsafe. BB’s post-trial assertion that she had seen the stabbing was an exaggeration. However, the jury had already heard extensive evidence of her admitted lies, inconsistencies, drug use and unreliability. She had not resiled from her trial evidence. Further cross-examination about her later accounts would not realistically have altered the verdict.
2. BB’s evidence also had significant circumstantial support. Other evidence placed Benguit at the crack house shortly after the murder with blood on him, supported his having washed and changed clothes, recorded an admission that he had stabbed a student, and supported the inference that he sought a false alibi. The court was therefore sure that the verdict remained consistent with the evidence.
3. The material concerning Restivo did not provide a realistic basis for regarding him as an arguable alternative perpetrator. The murder of Miss Shin differed materially from the killings of Elisa Clapps and Heather Barnett in planning, setting, relationship to the victim, treatment of clothing and hair, and forensic features. The balaclava, surveillance evidence, date similarities and alleged knife comment were either too remote, insufficiently probative, or coincidental.
4. The CCTV experts did not exclude the Volvo or Renault during the period in which, on BB’s evidence, Benguit could have killed Miss Shin. Their evidence therefore did not undermine the safety of the conviction.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, dismissed the renewed appeal against conviction and rejected the separate application for leave to appeal on the CCTV ground.
• Crown Court at Winchester: At the second retrial in 2005, convicted Benguit of murder and imposed life imprisonment with a minimum term of 20 years.
• Earlier proceedings: The first trial and first retrial resulted in jury disagreements on the murder count. An appeal against the 2005 conviction was dismissed on 12 July 2005; no citation is stated in the judgment.