Mbadugha, R v

There is no general rule requiring a criminal trial judge to give a distinct direction on circumstantial evidence or to use prescribed words. The necessary assistance depends on the case and the evidence. A summing-up is adequate where it requires the jury to decide the case on all the evidence, prohibits speculation, and permits an inference of guilt only if innocent explanations can safely be rejected.

Fresh evidence should not be admitted on appeal where it was available at trial, its omission resulted from an informed forensic decision, and it could not materially assist the applicant’s case.

The applicant, the financial controller of a wine-importing company, was convicted at the Central Criminal Court of fraudulent evasion of duty and VAT. The prosecution alleged that she knowingly participated in a scheme which concealed imports and sales from HMRC. She denied knowledge of the fraud and of records held on an Italian server.

After the single judge refused an extension of time to seek leave to appeal, she renewed her applications. She challenged the adequacy of the directions on circumstantial evidence and sought to rely on proposed fresh evidence from an alleged co-offender. The central issues were whether the convictions were unsafe and whether the proposed evidence could be admitted.

Decision

1. The court refused the renewed applications for an extension of time and for leave to appeal against conviction. It also refused the application to adduce fresh evidence. There was no arguable basis for finding the convictions unsafe.

2. The changing and unparticularised grounds of appeal did not comply with Rule 39.3(2) of the Criminal Procedure Rules. They made it difficult for both the respondent and the court to identify the issues. The court nevertheless considered all arguments advanced so that the applicant was not disadvantaged.

3. The challenges to the sufficiency and probability of the prosecution evidence raised matters for the jury. The court was satisfied that the relevant material, including material from the Italian server, had been disclosed and was available to the defence and its expert. The proposed reliance on the Italian interview did not disclose a basis for re-running the trial on a different case.

4. Following R v Kelly [2015] EWCA Crim 817, no legal rule required a separate circumstantial-evidence direction or particular language. The judge had directed the jury to consider all the evidence, use logic and common sense, avoid speculation, and draw an inference of guilt only if innocent explanations could safely be rejected. Those directions adequately addressed the risks associated with inferential reasoning, although the word “circumstantial” was not used.

5. The proposed evidence from Mr Leonardi was available at trial. Trial counsel had reasonably assessed the risks of calling him, and the applicant’s new material did not show that he could give evidence capable of materially assisting her. There was therefore no prospect of admitting it under section 23 of the Criminal Appeal Act 1968.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 1049, refused the renewed applications for an extension of time, leave to appeal against conviction, and admission of fresh evidence.
• Single judge: Refused the application for an extension of time to apply for leave to appeal against conviction.
• Central Criminal Court: On 8 June 2017, the applicant was convicted by a jury of fraudulent evasion of duty and fraudulent evasion of VAT, and was later sentenced to a total of three years and six months’ imprisonment.