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Fresh evidence may be admitted on an appeal against conviction where receiving it is necessary in the interests of justice. A conviction is unsafe where reliable fresh evidence materially supports an alibi and undermines the prosecution case on an issue central to witness credibility. Although date is generally not a material averment in a rape indictment, it may become critically important where timing is central to the complainant’s account and to the assessment of an alibi. An unsupported alternative explanation cannot preserve a conviction when the fresh evidence strongly supports the defence and casts doubt on the prosecution evidence.

The appellant was convicted in the Crown Court at Manchester Crown Square of rape and sentenced to seven years and six months’ imprisonment. His case at trial was that the sexual activity was consensual and that he was in Pakistan when the alleged rape occurred. The jury acquitted him on two counts but convicted him on a vaginal rape count said to have occurred on or about 1 February 2013.

On appeal, the court received fresh evidence that passport stamps showing travel to and from Pakistan were genuine, together with evidence confirming the appellant’s movements. It also received supporting evidence from a witness identified by the complainant as “Aunty”. The central issue was whether the fresh evidence rendered the conviction unsafe.

1. Appeal allowed. The court admitted the fresh evidence under section 23 of the Criminal Appeal Act 1968. Having regard to the factors required by subsection (2), it was satisfied that receiving the evidence was necessary in the interests of justice. The evidence of the document examiner and the Pakistani consular official was admitted. The evidence of Mrs Hussain was also admitted because it was credible, unchallenged and capable of providing additional support, notwithstanding that the explanation for its absence at trial was unsatisfactory.
2. The complainant’s account connected the rape closely in time with pain, bleeding and her subsequent hospital attendance after a miscarriage. The suggestion that the rape occurred before the appellant entered Pakistan on 11 January 2013 required an unexplained extension of about three weeks in the interval central to her account.
3. Date is not ordinarily a material averment in an indictment for rape, in the sense that an error as to date will not usually create a legal obstacle to conviction. In this case, however, the date was extremely important to the credibility of both witnesses. The fresh evidence confirmed the authenticity of the travel stamps and strongly supported the alibi. The respondent abandoned the hypothesis that the appellant had made an undocumented or unrecorded return journey, and there was no evidence supporting it.
4. The fresh evidence consequently cast doubt on the reliability of the complainant’s evidence of rape. The conviction was unsafe. The respondent did not seek a retrial. The appeal was allowed and the conviction quashed.

• Court of Appeal (Criminal Division): The appellant challenged his conviction in the Crown Court at Manchester Crown Square. Leave to appeal, an extension of time and leave to adduce fresh evidence were granted on 6 March 2020. The appeal was allowed and the conviction quashed.