Avorgah v R

Under section 23 of the Criminal Appeal Act 1968, the court must assess whether receiving further evidence is necessary or expedient in the interests of justice and whether it gives rise to a doubt about the safety of the conviction. Material which merely adds little to issues already tested before the jury will not ordinarily meet that standard. This includes later evidence which could effectively have been calculated or deployed at trial, or further inconsistencies which add little to substantial existing material impeaching a witness’s credibility.

The later availability of evidence from a co-accused’s retrial, or later misconduct by a witness, does not of itself make an earlier conviction unsafe. The criminal trial remains a search for the truth, rather than a tactical process permitting an accused to advance successive inconsistent accounts.

Avorgah v R was an appeal against convictions at the Central Criminal Court for murder and two offences of wounding with intent. The appellant had received life detention with a minimum term of 19 years for murder, with concurrent 12-year terms for the woundings.

Having initially relied on an alibi, the appellant admitted being present at the incident at trial. He accepted stabbing the two injured complainants but contended that he acted in self-defence and denied stabbing the deceased. His three co-accused were acquitted following a later retrial.

The appeal relied on alleged non-disclosure or fresh evidence concerning walking times between CCTV locations, inconsistencies in the complainants’ evidence at the co-accused’s retrial, and one complainant’s later possession of a knife. The central issue was whether that material should be received under section 23 of the Criminal Appeal Act 1968 and rendered the convictions unsafe.

1. Appeal dismissed. The court held that none of the proposed fresh material gave rise to a doubt about the safety of the convictions. Leave to advance the separate lurking-doubt ground was refused.
2. The walking-time statement added little to an issue already fully available to the jury. Detailed plans and CCTV footage enabled the parties and jury to calculate distances, timing and possible speeds for themselves. The material did not establish that the complainants ran, still less that they ran to attack the appellant. It did not materially undermine their account of an ambush.
3. The court held that evidence which becomes available after trial does not, merely for that reason, affect the safety of an earlier conviction. The transcript evidence from the co-accused’s retrial disclosed no significant new challenge to the complainants’ credibility beyond matters already available and deployed at the appellant’s trial. Likewise, the later knife-possession incident concerning one complainant added nothing significant, particularly given the existing evidence of his possession and disposal of a knife at the scene.
4. In exercising its discretion under section 23 of the Criminal Appeal Act 1968, the court must consider the interests of the prosecution, defence, victims and the public interest in fair criminal proceedings. The appellant sought to use the new timing material to support a third account inconsistent with both his earlier defence statements and his sworn evidence. Applying the principle in R v H (Peter) [2002] EWCA Crim. 730, the court held that a criminal trial is a search for truth, not a tactical game. These circumstances supplied no proper basis to admit the material.
5. The prosecution evidence was compelling. The complainants’ injuries, their contemporaneous accounts, the CCTV, and the appellant’s conduct after the incident supported the jury’s rejection of his account. The court was left with no lurking doubt as to safety.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2015] EWCA Crim 1186.
• Central Criminal Court: On 2 February 2011, the appellant was convicted of murder and two counts of wounding with intent. He was sentenced to detention for life with a minimum term of 19 years for murder and concurrent 12-year terms for the woundings.