Zarazadeh, R. v

Factual and Procedural Background

On 23 December 2011, the complainant, aged 14, and her older sister, referred to as B, visited the appellant's residence with the intention of spending the evening and staying overnight. B was the appellant's partner at the time. After drinking, the complainant went to sleep in a double bed expecting B to join her later. B, who was very intoxicated, eventually joined the complainant in bed. The prosecution alleged that the appellant joined the two sisters in bed and sexually assaulted the complainant while she was asleep. The appellant denied the allegations, claiming he intended only to cuddle his partner and that he was fully clothed and unable to engage in sexual intercourse due to a medical condition.

The incident was reported to the police the following day. The appellant was arrested and gave no comment interviews, citing embarrassment over his medical condition and dissatisfaction with police conduct. The appellant pleaded not guilty. The initial trial resulted in a hung jury, but he was convicted on retrial in September 2013 and sentenced to nine years' imprisonment. He was released in 2017. The appellant sought leave to appeal against conviction in June 2022, nearly nine years after the conviction, and also sought an extension of time to file the appeal.

Legal Issues Presented

1. Whether fresh evidence from the appellant's former partner, B, could undermine the safety of the conviction.
2. Whether alleged alterations to mobile phone data relating to the complainant's phone affected the credibility of the prosecution's case.
3. Whether the judge's summing-up contained misdirections or unfairness that rendered the conviction unsafe.
4. Whether the appellant's defence was inadequately conducted by his legal advisers, potentially affecting the conviction's safety.
5. Whether an extension of time to lodge the appeal should be granted despite the significant delay.

Arguments of the Parties

Appellant's Arguments

• There was fresh evidence from B supporting the appellant's account that no sexual offence occurred, and B's evidence was crucial but was not called at trial.
• The prosecution altered mobile phone data to misrepresent the sequence of calls from a third party, suggesting bad faith and undermining the complainant's credibility.
• The judge's summing-up was flawed, including how evidence of bad character, the complainant's credibility, and scientific evidence were addressed.
• The trial process was flawed, including alleged manipulation of the complainant's video link appearance, disturbances during cross-examination, and inconsistent naming conventions for parties.
• The appellant's legal representation was inadequate, contributing to an unsafe conviction.
• The appellant sought an extension of time to appeal despite the delay of almost nine years.

Court's Response to Arguments

• The evidence from B was not fresh as it was available at trial and was unreliable with multiple conflicting accounts; thus, it did not justify allowing the appeal.
• The error in the mobile phone data sequence was likely a human error without prosecutorial advantage and did not affect the jury's assessment.
• The judge's summing-up was balanced and fair, with appropriate directions on the complainant's evidence, bad character, lies, defence statements, and scientific evidence.
• Complaints about the trial process were speculative and should have been raised at trial; they did not demonstrate unfairness.
• The appellant's legal team provided thorough and consistent representation; complaints against counsel were dismissed and did not render the conviction unsafe.
• The delay in filing the appeal was unjustified and extending time would be futile given the lack of merit in the grounds of appeal.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court applied the statutory framework governing appeals and fresh evidence, particularly section 23(2) of the Criminal Appeal Act 1968, which requires consideration of the credibility and timing of new evidence. The court found that the appellant's purported fresh evidence was neither new nor credible and lacked a reasonable explanation for its late submission. The court further evaluated the alleged errors in evidence presentation, trial conduct, and legal representation, concluding that none undermined the safety of the conviction. The judge's summing-up was found to be balanced and legally sound, addressing key issues such as the complainant’s credibility, bad character evidence, and scientific findings. The court also noted procedural complaints were speculative and should have been raised during trial. Finally, the court determined that the significant delay in lodging the appeal was unjustified and that granting an extension of time would be futile given the absence of merit in the appeal grounds.

Holding and Implications

The court REFUSED the appellant's application for leave to appeal against conviction and declined to grant an extension of time to file the appeal.

This decision directly affects the appellant by upholding the conviction and sentence previously imposed. No new legal precedent was established. The refusal underscores the importance of timely appeals and the court's rigorous scrutiny of fresh evidence and procedural complaints to ensure the safety and fairness of criminal convictions.