R v Khayam Khurshid

In an identification case, the trial judge must withdraw the case only where the evidence, taken at its highest, could not permit a reasonable jury properly directed to draw the adverse inference. Identification evidence raising Turnbull concerns may nevertheless be left to the jury where other evidence materially supports the identification.

On a combined application to amend grounds and adduce fresh evidence, the court must assess credibility, the explanation for non-production at trial, the evidence’s potential effect on the appeal, and the interests of justice. Fresh evidence which is incredible, unexplained, cumulative or incapable of affecting the verdict should not be admitted.

The applicant was convicted at Manchester Crown Court of murder and possessing a firearm with intent to endanger life. The prosecution case placed him in the vehicle from which the victim was shot. It relied on eyewitness identification, evidence about the number of occupants, telephone and vehicle-movement evidence, and his flight abroad.

He renewed an application for permission to appeal after a single judge had refused it. He contended that the identification evidence was too weak to leave to the jury. He also sought, out of time, to amend his grounds and introduce three new witness statements supporting his alibi or suggesting that only two people were in the vehicle.

The central issues were whether there was a case to answer and whether the proposed fresh evidence should be admitted.

1. The renewed application for permission to appeal and the application to amend the grounds were refused. The trial judge correctly left the case to the jury. Under Turnbull (1977) QB 224 and the no-case-to-answer approach summarised in R v Goddard and Fallick [2012] EWCA Crim 1756, the question was whether a reasonable jury, taking the prosecution case at its highest, could draw the adverse inference.

2. The identification evidence raised recognised Turnbull risks, but it was not so weak that withdrawal was required. Two witnesses gave identification evidence. Their uncertainties were properly left for jury assessment under a robust direction. Evidence that there were three occupants in the vehicle, together with telephone evidence, vehicle movements, background hostility and flight from the jurisdiction, materially supported the prosecution case. Taken as a whole, the evidence established a case to answer.

3. Permission to amend out of time required consideration of the factors in R v James [2018] EWCA Crim 285. Although delay was not held against the applicant, the proposed ground depended on fresh evidence. Under section 23(2) of the Criminal Appeal Act 1968, and consistently with R v Vowles [2015] EWCA Crim 45, the court considered its credibility, the reason it was not called, its possible effect on the appeal, and the interests of justice.

4. The proposed alibi evidence was incapable of belief in light of the false alibi already exposed by the burglary of relevant CCTV and Blaney’s guilty plea. There was no reasonable explanation for any of the three witnesses’ failure to testify at trial. The evidence concerning the number of vehicle occupants was cumulative of an issue already before the jury and could not have affected the verdict. Admission was not in the interests of justice, and the convictions were safe.

• Court of Appeal (Criminal Division): By [2023] EWCA Crim 1687, the court refused the renewed application for permission to appeal against conviction and refused permission to amend the grounds to rely on fresh evidence.
• Single judge: Refused permission to appeal against conviction on the original no-case-to-answer ground.
• Crown Court at Manchester: On 26 March 2021, Yip J and a jury convicted the applicant of murder and possession of a firearm with intent to endanger life.