R v Richard Kwabena Asubonteng

Extension of time for an appeal against conviction depends on whether the explanation justifies the length of delay. Difficulties with English may be relevant, but a delay of 455 days is not justified where the trial judge directed the jury to take the defendant’s language difficulties into account. An appeal requires an arguable ground capable of casting doubt on the safety of the conviction. Complaints fail where they identify no procedural error, rely on evidence properly admitted and fairly handled, challenge a refusal of inadmissible bad-character evidence, identify no material defence evidence, or merely repeat a defence rejected by the jury. Recasting the same complaints as an Article 6 challenge adds nothing.

The applicant was convicted by a jury at Kingston upon Thames Crown Court on 10 counts of sexual offending against a child and sentenced to six years and six months’ imprisonment. He renewed an application, refused by a single judge, for an extension of 455 days to apply for leave to appeal against conviction.

The proposed grounds concerned a change of judge, refusal of bad-character evidence, admission of a photograph, alleged restriction of defence witnesses, the summing-up, and Article 6 fairness. The central questions were whether the delay was justified and whether any ground was arguable.

1. The renewed application for an extension of time was dismissed. The applicant’s difficulties with the English language were accepted as a broad explanation, but they did not justify a delay of 455 days, particularly since the trial judge had directed the jury to take that difficulty into account. In any event, the court would have refused leave on the merits.

2. The change of judge between the recording of the applicant’s cross-examination and the trial was a commonplace occurrence. Criminal Practice Direction V, Rule 18E.63 made the procedure proper. There was no arguable basis for concluding that it affected the safety of the conviction.

3. The trial judge was entitled to refuse the proposed bad-character evidence concerning two alleged shoplifting incidents. The conditions for admissibility were not met.

4. The photograph showing the applicant in his boxer shorts while taking a FaceTime call was plainly admissible. It had been fairly introduced, put to the applicant, addressed by him, and fairly summarised to the jury.

5. The complaint that counsel had prevented defence witnesses from being called disclosed no arguable ground. The applicant had received reasonable advice. He had not identified relevant evidence that his wife or Joseph could have given, and documentary evidence contradicted part of the proposed account.

6. The challenge to the summing-up merely repeated the defence case and factual matters rejected by the jury. It disclosed no arguable error. The Article 6 complaint added nothing, being no more than a restatement of the earlier grounds.

7. The reporting restriction under Sexual Offences (Amendment) Act 1992 applied to information capable of identifying the child unless waived or lifted under section 3. The court concluded that there were no arguable grounds for doubting the safety of the conviction and no justification for extending time.

• Court of Appeal (Criminal Division) — In [2023] EWCA Crim 698, the renewed application for an extension of time was dismissed. The court stated that leave would also have been refused on the merits.
• Single judge — Refused the initial application for leave to appeal; the date was not stated in the judgment.
• Crown Court at Kingston upon Thames — On 19 April 2021, the applicant was convicted by a jury and sentenced to six years and six months’ imprisonment.