Smith, R. v

Factual and Procedural Background

The Appellant was tried at the Central Criminal Court over a period from 1 November 2021 to 12 January 2022 on an indictment containing 16 counts, of which 9 related to him. These counts broadly involved four sets of alleged offences including conspiracies to possess or acquire prohibited firearms, and conspiracies relating to murder, grievous bodily harm, and possession of firearms with intent to cause fear of violence. The Appellant was convicted on Counts 1, 10, 13, and 14. The appeal is confined to the safety of convictions on Counts 13 and 14, which concern the Barrington Court conspiracy involving possession of a firearm and ammunition.

The prosecution case was that the Appellant and a co-accused conspired to source and possess a firearm for use in other conspiracies and that on 11 December 2019 they planned to take possession of a firearm from another individual, Mr Khalifa Benjamin, and others. Evidence included covert recordings, surveillance, messages, and cell site data. The firearm and ammunition were found shortly after the Appellant and co-accused left Barrington Court.

The Appellant denied involvement with firearms and maintained that the visit to Barrington Court was to view a stolen car or car parts, arranged by his co-accused. Mr Khalifa Benjamin initially provided a Defence Statement supporting a car sale explanation but later provided an addendum and trial evidence shifting the account to a drugs-related meeting, denying any firearm involvement. Mr Khalifa Benjamin was acquitted of related charges. The Appellant sought to rely on this fresh evidence in his appeal.

The appeal was heard on 6 December 2024, with judgment reserved. The court ultimately dismissed the appeal.

Legal Issues Presented

1. Whether the fresh evidence provided by Mr Khalifa Benjamin renders the Appellant's convictions on Counts 13 and 14 unsafe.

Arguments of the Parties

Appellant's Arguments

• Mr Khalifa Benjamin's fresh evidence contradicts the prosecution’s claim of a firearm exchange at Barrington Court.
• The meeting was about a drugs transaction, not firearms, supporting the Appellant’s defence that the visit was unrelated to guns.
• Mr Khalifa Benjamin’s explanation for changing his account—fear of repercussions—is credible and plausible.
• The evidence should be admitted in the interests of justice to allow a jury to hear it at retrial.
• The cross-examination of the Appellant on behalf of co-accused Mr Barnaby should not detract from Mr Khalifa Benjamin’s credibility.
• The separate departure routes of the Appellant and Mr Barnaby are explainable by their different home locations.

Prosecution's Arguments

• Mr Khalifa Benjamin’s evidence is not credible and inconsistent, especially regarding the meeting’s purpose.
• The shift from a car-related meeting to a drugs-related meeting contradicts the Appellant’s defence and strains credulity.
• The similarity between the Appellant’s and Mr Khalifa Benjamin’s original Defence Statements is unlikely to be coincidental if Mr Benjamin’s new account is true.
• Mr Khalifa Benjamin’s reasons for withholding information about drugs initially are implausible.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reiterating the established legal principles governing fresh evidence appeals, notably from R v Pendleton, emphasizing that the Court of Appeal’s role is to determine if the conviction is unsafe, not to retry the case or weigh guilt. The court acknowledged that fresh evidence is often capable of belief on paper, but must be considered in the full context of the trial record and other evidence.

The court noted that the Appellant’s conviction on Counts 13 and 14 necessarily depended on explaining his presence at Barrington Court where a firearm and ammunition were found in the possession of his co-accused shortly after leaving. The Appellant’s defence was that the visit was for viewing a stolen car or car parts, a narrative supported initially by Mr Khalifa Benjamin’s first Defence Statement.

However, Mr Khalifa Benjamin’s later Defence Statement and trial evidence materially shifted the account, denying any involvement with firearms and asserting the meeting was for a drug-related transaction. He expressly repudiated earlier statements about a car viewing and acknowledged lying in his initial Defence Statement. This created a direct conflict with the Appellant’s fundamental explanation for his presence.

The court found that Mr Khalifa Benjamin’s fresh evidence, rather than undermining the conviction, contradicted the Appellant’s defence and thus reinforced the jury’s rejection of the Appellant’s account. The court emphasized that an acquittal of Mr Khalifa Benjamin does not equate to the Appellant’s conviction being unsafe because the evidence and circumstances in the two trials differed materially.

In light of this, the court concluded that the fresh evidence would not have reasonably affected the jury’s decision to convict. The inconsistencies and contradictions in Mr Khalifa Benjamin’s accounts, and the absence of any credible alternative explanation for the Appellant’s presence at Barrington Court, meant the conviction remains safe.

Holding and Implications

The court DISMISSED the appeal against conviction on Counts 13 and 14.

The direct consequence is that the Appellant’s convictions on these counts stand, and no question of an appeal against sentence arises. The court did not set any new precedent but reaffirmed the established approach to fresh evidence appeals, emphasizing the importance of contextual assessment and the limited impact of co-defendant acquittals on another’s conviction.