R v Olukunle Ajani Afolabi

For evidence of a non-defendant’s bad character to be admitted under section 100(1)(b) of the Criminal Justice Act 2003, it must have substantial probative value on a matter in issue and substantial importance in the case as a whole. A separate and unproved allegation of violence occurring after the offence will not meet that threshold merely because it involves the same people and an alleged use of knives. Where it casts no light on the issues for the jury, including self-defence or accident, it is inadmissible. The court may also exclude such material where its admission would generate undue and purposeless satellite litigation.

The applicant was convicted in the Crown Court at Snaresbrook of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 and sentenced to three years and six months’ imprisonment.

At trial, he denied stabbing the complainant. He said that the complainant had brought the knife and that any injuries might have occurred during a struggle. The prosecution relied, among other evidence, on CCTV footage, injuries consistent with repeated stabbing, eyewitness evidence, and the discovery of a wet knife in the kitchen.

The trial judge admitted evidence that the complainant possessed two knives in a later incident, but excluded the unproved allegation that he had stabbed the applicant four months after the offence. The applicant renewed his application for leave to appeal following the single judge’s refusal. The central issue was whether excluding that allegation under section 100(1)(b) of the Criminal Justice Act 2003 rendered the conviction arguably unsafe.

1. The renewed application for leave to appeal against conviction was refused. The trial judge was entitled to find that the unproved allegation that the complainant stabbed the applicant four months later did not satisfy section 100(1)(b) of the Criminal Justice Act 2003.

2. The later allegation had no substantial probative value on any matter the jury had to decide. Even assuming that the applicant had been stabbed, a separate attack occurring after the offence could cast no light on who brought the knife to the earlier confrontation, who initiated violence, whether the applicant stabbed the complainant, or whether he acted in self-defence or by accident.

3. The proposed evidence was not of substantial importance in the context of the case as a whole. Its admission would also have produced undue satellite litigation over an unproved allegation and distracted the jury without serving a legitimate evidential purpose.

4. The conviction was not arguably unsafe. The CCTV permitted the jury to conclude that the applicant chased and repeatedly lunged at the complainant with a knife. Together with the remaining evidence, it provided ample basis for the jury to reject the applicant’s account and to be sure that he carried out a sustained knife attack intending really serious harm.

5. The court made a loss of time order. Twenty-eight days were directed not to count towards the applicant’s sentence.

• Court of Appeal (Criminal Division) — following the single judge’s refusal of leave, the court refused the renewed application for leave to appeal against conviction and made a 28-day loss of time order.
• Crown Court at Snaresbrook — on 17 April 2023 the applicant was convicted of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. On 22 August 2023, he was sentenced to three years and six months’ imprisonment, less 60 days for qualifying curfew time.