R v Asif Khan

An extension of time to seek leave to appeal against conviction should be refused where the proposed grounds have no reasonable prospect of success and extending time is not in the interests of justice. Fresh alibi evidence may be refused where the account is implausible, there is no reasonable explanation for failing to raise it at trial, and the supporting material is procedurally deficient. A conviction on one count is not inconsistent with an acquittal on another where the allegations do not necessarily rise or fall together and the jury was directed to consider each count separately.

Following his conviction in the Crown Court at Oxford for vaginal rape, and sentence to ten years’ imprisonment, the applicant renewed an application for an extension of 472 days in which to seek leave to appeal against conviction. He also applied to adduce fresh alibi evidence from Georgie Smith, supported only by purported Facebook messages and no statement in section 9 format or Form W.

The proposed grounds alleged a defective unsigned indictment, defective Automatic Number Plate Recognition footage, inconsistency between the conviction on count 2 and acquittal on count 1, and generic trial unfairness. The central issues were whether the fresh evidence should be admitted and whether time should be extended despite the proposed grounds having no reasonable prospect of success.

1. Fresh evidence. The application to adduce fresh evidence was refused. The proposed alibi was not capable of belief on the material provided. The applicant gave no reasonable explanation for failing to remember and raise the alleged relationship when arrested, interviewed, charged and tried, or for failing to call the proposed witness at trial. The evidence was also procedurally deficient because there was no statement in section 9 format and no Form W.
2. Proposed grounds of appeal. None had a reasonable prospect of success. The indictment was not defective for being unsigned. The Automatic Number Plate Recognition footage was not shown to be fabricated or faulty and placed the taxi outside the complainant’s house at the relevant time.
3. Consistency of verdicts. The conviction on count 2 was not inconsistent with the acquittal on count 1. The jury had been directed to consider each count separately, and the allegations did not necessarily rise or fall together. The forensic evidence of semen and DNA on the complainant’s thong assisted the case on vaginal rape, whereas there was no equivalent forensic evidence supporting the allegation of oral rape. The acquittal showed that the jury gave the applicant the benefit of the doubt where required.
4. Fairness and time. The allegation of generic unfairness was unsupported by cogent grounds. Trial counsel’s response did not indicate incompetence or ineffectiveness. Given the absence of merit in the proposed appeal, and the 472-day delay, extending time was not in the interests of justice. All applications were refused.

• Court of Appeal (Criminal Division): The applicant renewed his application for an extension of time to seek leave to appeal against conviction and applied to adduce fresh evidence. Both applications were refused. The proceedings arose from his conviction following trial in the Crown Court at Oxford on 13 September 2021.