Chuhan, R. v

Under Criminal Appeal Act 1968, section 23, the decision whether to receive fresh evidence is distinct from the ultimate question whether that evidence makes a conviction unsafe. The statutory considerations are illustrative and the receivability inquiry is broad and directed to the interests of justice.

Fresh evidence directed only to a complainant’s credibility may not render a conviction unsafe where credibility was fully explored at trial, the new evidence has limited or unreliable probative value, and its fair testing would generate collateral disputes. Where evidence was available at trial and is not compelling, an unexplained failure to call it may materially reinforce the conclusion that the conviction remains safe.

The appellant was convicted at Snaresbrook Crown Court of four counts of rape contrary to section 1(1) of the Sexual Offences Act 2003 and one count of assault by penetration contrary to section 2. He received concurrent sentences of 15 years’ imprisonment for the rape counts. An appeal against sentence had failed.

He later sought permission, out of time, to appeal against conviction and to adduce evidence from three witnesses. The court received the evidence and heard the witnesses. The central issue was whether their evidence, principally bearing on the complainant’s credibility, rendered the convictions unsafe.

1. Disposition. The court refused to quash the convictions. Although it received the fresh evidence, it did not make the convictions unsafe.
2. Section 23 of the Criminal Appeal Act 1968 requires a distinct receivability decision before the court determines safety. The factors in section 23(2) are illustrative, and receivability is assessed broadly in the interests of justice. Having heard the witnesses, the court addressed the separate ultimate question of safety.
3. The new evidence did not concern the alleged rapes directly. It was further credibility evidence concerning the complainant, whose credibility had already been tested extensively at trial and fully addressed in the summing up. The evidence was weakened by hostility towards the complainant, vague recollections of old conversations, inconsistencies, and, in material respects, its support for the prosecution case rather than the appellant’s trial defence.
4. The court also held that even an admissible core of the evidence presented a fairness problem. The prosecution could properly seek to show that the witnesses’ evidence was motivated by hostility, but doing so risked opening irrelevant and potentially inadmissible matters, including sexual-history issues. That significantly reduced the evidence’s overall probative value.
5. The evidence of two witnesses had been available before trial, yet no credible explanation was provided for not calling them. Following R v Gogana [2000] Crim LR 571 (CA), the court treated the absence of a full explanation as material where the evidence was not compelling. The evidence of the third witness did not remove the cumulative concerns. The application therefore failed.

• Court of Appeal (Criminal Division). On an out-of-time fresh-evidence application, the court refused to quash the convictions: [2017] EWCA Crim 776.
• Snaresbrook Crown Court. On 22 July 2014, the appellant was convicted by a jury of four counts of rape and one count of assault by penetration. An appeal against sentence later failed; the court and citation are not stated in the judgment.