Stewart & Ors, R. v

Factual and Procedural Background

Three applicants—referred to as the Plaintiff, Defendant 1, and Defendant 2—applied for leave to appeal against convictions returned by a jury verdict on 13 January 2023 at the Crown Court in The City. Each was convicted of one count of fraudulent evasion of a prohibition on the exportation of goods, specifically involving the alleged joint participation in sending a package containing drugs via the DHL system. One applicant’s application was initially out of time but was later joined with the others. A single judge referred the applications to the full court for oral hearing and directed counsel attendance, although some procedural uncertainty arose regarding whether leave to appeal had been granted. The court clarified that the matter would be treated as an application for leave to appeal.

The trial involved unusual procedural events: the prosecution was permitted to adduce evidence after closing speeches, and the prosecution case materially changed during presentation when it was revealed that two earlier packages, initially alleged to contain class A drugs, contained only salt. Despite these unusual turns, the evidence against the applicants was overwhelming, and the judge’s summing-up was not criticized. The court observed that the points raised on appeal were peripheral to the overall case.

Factual details include the shipment of a consignment from a DHL facility in The City containing 24 kilograms of methylamphetamine of high purity, addressed to an Australian recipient but sent under false sender details. The investigation revealed involvement of the applicants through package handling, payment methods, and communications. Two earlier packages sent in a similar manner were found to contain salt rather than drugs. The applicants gave evidence denying knowledge or involvement in drug exportation, with alternative explanations presented for their connections to the shipments.

Legal Issues Presented

1. Whether the trial judge erred in allowing the prosecution to adduce evidence after the conclusion of the final defence closing speech ("the parcel issue").
2. Whether the trial judge erred by not discharging the jury following the discovery that the first two shipments contained salt rather than class A drugs ("the salt issue").
3. Whether the trial judge erred in refusing to allow further material regarding two Australian nationals involved in a related drug importation investigation to be presented to the jury ("the Australian criminal issue").

Arguments of the Parties

Applicants' Arguments

• Parcel Issue: The applicants contended that the late introduction of a photograph of the package taken weeks after its arrival in Australia, showing additional tape, suggested tampering and possible insertion of drugs by third parties unrelated to them. They argued this evidence was improperly admitted after closing speeches, contrary to established legal principles.
• Salt Issue: They argued that the jury should have been discharged due to the prosecution’s initial false assertion that the first two shipments contained class A drugs when they actually contained salt, undermining the credibility of the prosecution’s case and the safety of the convictions.
• Australian Criminal Issue: The applicants asserted that the prosecution failed to disclose full details about two Australian nationals under investigation for drug importation via DHL consignments, which could have supported their defense that drugs were inserted after the packages left The City and that these criminals were responsible.

Prosecution's Arguments

• Regarding the parcel issue, the prosecution maintained that the late evidence was necessary to correct an incorrect inference made during closing submissions and that the judge’s discretion to admit such evidence was properly exercised without prejudicing the defence.
• On the salt issue, the prosecution acknowledged the error but argued that the correction was timely and did not render the convictions unsafe, as the jury was informed before the close of evidence.
• Concerning the Australian criminal issue, the prosecution contended that agreed facts were placed before the jury, providing all material capable of assisting the applicants, including the absence of links between the applicants and the Australian criminals.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Day (1940) 27 Cr App R 168	Prohibition on adducing evidence after closing speeches except where necessity arises ex improviso.	The court acknowledged the principle but noted later cases have nuanced it, allowing judicial discretion in such circumstances.
R v Frost (1839) 9 C&P 418	Definition of "ex improviso" evidence, i.e., evidence not anticipated until defence case or speeches reveal its necessity.	Referenced in support of the principle governing late evidence admission; court found the evidence admitted here properly fell within discretionary allowance.
R v Owen [1952] 2 QB 362	Judicial discretion in admitting evidence after closing speeches.	Used to illustrate that the law is not absolute and that the judge’s discretion is key.
R v Milligan (1969) 53 Cr App R 330	Further clarification of discretion in late evidence admission.	Supported the court’s view that the trial judge’s discretion was properly exercised.
Malcolm v Director of Public Prosecutions [2007] EWHC 363 (Admin)	Modern authority on judicial discretion regarding late evidence.	Confirmed that discretion is nuanced and the trial judge’s decision here was appropriate.

Court's Reasoning and Analysis

The court acknowledged the unusual procedural developments during the trial, particularly the late admission of evidence after closing speeches and the change in the prosecution case regarding the contents of two earlier shipments. The court carefully examined whether these circumstances rendered the convictions unsafe.

Regarding the parcel issue, the court found that the prosecution’s error in initially presenting a photograph as contemporaneous with the package’s arrival allowed the defence to make an argument that was ultimately unfounded when the correct photographic evidence was presented. The judge’s discretion to admit the additional photograph and witness statement was appropriate, and the defence was afforded opportunity to address this evidence. The court concluded that no prejudice to the defence arose sufficient to undermine the safety of the convictions.

On the salt issue, the court regretted the lack of earlier communication between UK and Australian authorities about the contents of the first two shipments but accepted that the correction was made in a timely manner during the prosecution case. The jury was properly informed, and the applicants had opportunity to respond. The court determined that this did not render the convictions unsafe, as the core evidence concerning the third shipment remained overwhelming.

Concerning the Australian criminal issue, the court noted that agreed facts about an ongoing Australian investigation into two nationals involved in drug importations via DHL consignments were placed before the jury. These facts included the absence of any links between those individuals and the applicants. The court found that the applicants’ arguments were addressed by the evidence presented, and no further disclosure was necessary to ensure fairness or safety of the convictions.

Overall, the court emphasized that the core evidence of the applicants’ involvement was strong, supported by multiple forms of incriminating evidence including communications, payment methods, and physical evidence discovered at one applicant’s residence. The peripheral nature of the grounds of appeal and the strength of the prosecution case led the court to conclude that the convictions were safe.

Holding and Implications

The court REFUSED LEAVE TO APPEAL against the convictions of the three applicants.

The direct effect is that the convictions stand and the applicants are not permitted to advance their appeals on the grounds presented. The court found no arguable basis to grant extensions of time or to consider the applications further. No new legal precedent was established; the decision confirms established principles regarding late evidence admission, disclosure obligations, and the assessment of conviction safety in light of procedural irregularities and evidential developments during trial.