R v Ki-Keon Jeong

For an application to rely on fresh evidence in a criminal appeal, the court must assess whether the evidence is admissible under section 23(2) of the Criminal Appeal Act 1968 and whether it provides an arguable basis for contending that the conviction is unsafe. Evidence is not genuinely fresh where the defendant knew the relevant facts and could reasonably have raised them at trial. Specimen counts require proof of at least one occasion within the charged period, so evidence excluding offending on some dates may not undermine the conviction. The court must evaluate alleged admissions in their proper context, including the circumstances in which they were obtained. An extension of time may be refused where no arguable unsafe-conviction case is shown.

The applicant was convicted at Kingston Crown Court of numerous sexual and physical offences against his stepchildren, C1 and C2, and was sentenced in July 2015 to 22 years’ imprisonment. He sought a 3,493-day extension of time to apply for leave to appeal against conviction and permission under section 23 of the Criminal Appeal Act 1968 to rely on evidence obtained after trial.

The proposed evidence included immigration records, a telephone recording involving M, and a handwritten note attributed to M. The applicant argued that it undermined the complainants’ evidence and made the convictions unsafe. The central issue was whether any of the material was admissible as fresh evidence and, if admitted, whether it provided an arguable basis for challenging the safety of any conviction.

1. Application refused. The renewed application for a 3,493-day extension of time to apply for leave to appeal against conviction was refused. None of the proposed material provided an arguable basis for contending that any conviction was unsafe.
2. Under section 23(2) of the Criminal Appeal Act 1968, the court considered whether the evidence was capable of belief, might afford a ground for allowing the appeal, would have been admissible at trial, and whether there was a reasonable explanation for failing to adduce it then. The court also applied the approach to unsafe convictions arising from fresh evidence described in R v Pendleton [2001] UKHL 66.
3. The immigration records did not establish that the convictions were unsafe. The counts were specimen counts, and the jury had only to be sure that the conduct alleged occurred on at least one occasion during the relevant period. The records did not exclude offending on other dates. The point was also not genuinely fresh because the applicant knew the relevant dates and could have raised the evidence at trial.
4. The recording and handwritten note attributed to M were assessed in context. The telephone conversation involved sustained pressure and highly leading questions. M’s answers were equivocal and could not reliably be treated as admissions that the children had lied or that the alleged offences were impossible. The handwritten note was narrower than the alleged admissions and did not retract M’s trial evidence.
5. The fresh material was either inadmissible opinion, immaterial to the guilty verdicts, unsupported by the trial evidence, or capable of being raised at trial. Even if it had been available at trial, it could not reasonably have affected the jury’s decision to convict. The court therefore refused the extension of time.

• Court of Appeal (Criminal Division): The applicant was convicted at Kingston Crown Court on 23 January 2015 and sentenced on 10 July 2015. The single judge refused the application for leave to appeal. The Court of Appeal refused the renewed application for an extension of time to apply for leave to appeal against conviction.