R v Yvonne Elizabeth Stewart & Ors

A trial judge has a discretion to admit prosecution evidence after closing speeches. The need for the evidence to arise ex improviso is not an absolute condition. The material question is whether the late admission causes real prejudice affecting the safety of the conviction.

A prosecution error corrected during its case does not require discharge of the jury where the correction enables the case to proceed on an accurate factual basis and the defence has a fair opportunity to address it. Agreed facts may adequately address a possible alternative-criminal hypothesis where they enable the defence to advance the relevant exculpatory inferences.

Three applicants sought leave to appeal convictions returned by a jury at the Crown Court at Croydon on 13 January 2023. Each had been convicted of fraudulent evasion of a prohibition on the exportation of goods, concerning a parcel sent through DHL to Australia which contained methylamphetamine.

The prosecution also relied on two earlier, similar consignments. During the prosecution case it emerged that those parcels contained salt rather than controlled drugs. After closing speeches, the judge permitted the prosecution to adduce a further photograph of the charged parcel. The applicants also complained about the disclosure of information concerning two Australian criminals.

The central issue was whether those matters rendered the convictions unsafe.

1. The applications for leave to appeal were refused. The court held that the evidence of the applicants’ coordinated conduct, communications, use of false identities and payment cards, and the similar consignments was overwhelming. The alleged irregularities were peripheral and did not render the convictions unsafe.

2. On the parcel issue, the judge had a discretion to allow the prosecution to adduce further evidence after closing speeches. R v Day (1940) 27 Cr App R 168 and R v Frost (1839) 9 C&P 418 did not impose an absolute rule that the need for the evidence must arise ex improviso. Later decisions showed that the question was discretionary. Refusal of the application would have left the jury with a misleading factual picture, and the defence was permitted to address the additional material. There was no arguable prejudice affecting safety.

3. On the salt issue, the prosecution’s original assertion that the first two consignments contained class A drugs was regrettably wrong. However, it was corrected during the prosecution case. The defendants could address the correction in evidence or submissions, and it was in the interests of justice that the jury decide the case on an accurate factual basis. There was therefore no basis to discharge the jury.

4. On the Australian criminal issue, the agreed facts established both that Australian authorities were investigating other drug importations through DHL consignments and that no links had been found between the relevant phones and the applicants. Those facts enabled the defence to advance the suggested alternative explanation. Further disclosure could not assist the applicants on the safety question.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 885, refused all three applications for leave to appeal against conviction.
• Crown Court at Croydon: A jury convicted each applicant on 13 January 2023 of fraudulent evasion of a prohibition on the exportation of goods.