R v Henderson Domingo

An appellate court will not interfere with a conviction merely because an applicant disputes the jury’s assessment of the evidence. Leave to appeal should be refused where no arguable ground shows that the conviction may be unsafe.

Directions must be assessed as a whole. Corrected factual errors, fair and balanced directions, and appropriate warnings about the limits of cell-site evidence do not establish an unsafe conviction. Evidence capable of showing conduct beyond mere preparation may properly be left to the jury.

Fresh evidence will not ordinarily be admitted without a good reason for its absence at trial. The trial is the proper occasion for relevant evidence to be adduced.

The applicant was convicted of four robberies, two attempted robberies and possession of a bladed article. He received an overall sentence of 14 years’ imprisonment, with forfeiture of cash found at his home.

He sought an extension of 189 days to renew an application for leave to appeal against conviction after refusal by the single judge. His complaints included alleged errors in the summing-up, the admission of circumstantial evidence, the handling of cell-site evidence, the refusal to withdraw one attempted-robbery count, and alleged shortcomings by his trial representatives. He also sought to adduce fresh evidence concerning the source of cash found in his safe.

The central issue was whether any ground, or the proposed fresh evidence, gave an arguable basis for treating the convictions as unsafe.

1. The Court refused both the extension of time and the renewed application for leave to appeal. Having reviewed the papers, it found no arguable ground of appeal and no basis for concluding that any conviction was unsafe.

2. The trial judge’s evidential rulings were correct. The admission of the rum-bottle evidence was open to the judge because it matched the description of a bottle taken in one robbery, notwithstanding that it was a standard product. The Court also rejected the complaint that evidence concerning cash, banking transactions, scratch cards, work records, vehicles and number plates should not have been before the jury.

3. The summing-up was fair and balanced. Although factual errors had occurred, they were corrected at trial. The directions properly left factual issues to the jury and accurately warned of the limitations of mobile-phone cell-site analysis, which could indicate only a general direction rather than an exact location.

4. The refusal to withdraw the attempted-robbery count was sustainable. Evidence that the applicant walked past the relevant shop at the material time was capable of demonstrating conduct beyond merely preparatory acts. Whether he had embarked on the actual commission of the offence was therefore for the jury.

5. The proposed fresh evidence was inadmissible because no good reason had been given for adducing it only at this stage. The Court reiterated that a criminal trial is the occasion at which evidence should ordinarily be called.

6. The applicant’s disagreement with the jury’s unanimous verdict did not permit appellate intervention. The convictions therefore remained undisturbed.

• Court of Appeal (Criminal Division): refused an extension of time and the renewed application for leave to appeal against conviction.
• Trial court (not identified in the judgment): the applicant was convicted of four robberies, two attempted robberies and possession of a bladed article, and was sentenced to 14 years’ imprisonment.
• Single judge: previously refused leave to appeal, leading to the renewed application before the full court.