Hussain, R. v

Factual and Procedural Background

On 13 July 2022, following a trial at the Crown Court in The City before Judge Kearl KC and a jury, the Applicant was convicted by unanimous verdict of murder. The Applicant's brother, referred to as Defendant B, and another individual, Defendant C, were also convicted of the same murder. The victim was shot at close range while sitting in a stationary car. The prosecution alleged the shooting was a planned act within a continuing gangland feud involving the Applicant, Defendant B, and Defendant C, though it was unclear which of the three fired the fatal shot.

The Applicant sought a 408-day extension of time to seek leave to appeal against the conviction, which was referred to the full court by a single judge. There was no criticism of the trial judge's handling of the trial, directions, or summing up. The sole ground of appeal concerned fresh evidence related to audio content from CCTV footage, which was said to support the Applicant's alibi defence.

Legal Issues Presented

1. Whether the fresh audio evidence from the CCTV footage is admissible under section 23 of the Criminal Appeal Act 1968.
2. Whether the fresh evidence affects the safety of the Applicant's conviction such that it justifies allowing an extension of time to seek leave to appeal.

Arguments of the Parties

Appellant's Arguments

• The fresh audio evidence from the CCTV footage, which was not presented at trial, supports the Applicant's alibi that he was in a car with his partner at the time of the shooting.
• The prosecution was partly at fault for not making the original audio recording available earlier, and the audio was not audible to untrained counsel at trial, thus justifying the late expert analysis.
• The Applicant denied involvement in the murder, the gang feud, and drug dealing, and disputed identification on CCTV footage, asserting an alibi supported by his partner's evidence.

Respondent's (Prosecution) Arguments

• There was no reasonable explanation for failing to adduce the audio evidence at trial.
• The audio evidence is of poor quality and does not reliably identify the Applicant or affect the safety of the conviction.
• The circumstantial evidence against the Applicant was strong, including gang association, mobile phone data, and CCTV footage.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court carefully considered the transcript of the enhanced audio and the expert report from Dr Rhodes, alongside its own review of the original audio recording. The court noted that the audio was of very low quality and recorded at a low level, making it unsuitable for reliable voice comparison or transcription. The expert's view that the voice was probably male was based on auditory impression rather than scientific analysis, and even then was expressed with low confidence.

Importantly, the court found no evidence that the male voice on the audio originated from the Mercedes vehicle or its occupants. The CCTV camera was located adjacent to a cluster of properties and a communal parking area, where unrelated sounds and voices were recorded. Thus, the sound could have come from any number of persons in the vicinity, including neighbours or passersby.

The court also found the Applicant's alibi weak, highlighting the improbability of the claimed takeaway delivery scenario and other weaknesses noted in the prosecution's opening submissions. In contrast, the circumstantial evidence—gang association, phone and CCTV data—was strong.

Given these factors, the court concluded that the fresh audio evidence did not undermine the safety of the conviction and was therefore insufficient to justify admission under the Criminal Appeal Act 1968.

Holding and Implications

The court REFUSED the application to admit the fresh audio evidence and REFUSED the application for an extension of time to apply for leave to appeal.

The direct effect is that the Applicant's conviction stands and no further appeal on this ground will proceed. The decision does not establish new precedent but confirms the stringent standards for admitting fresh evidence in appeals concerning the safety of convictions.