Joseph v Rex

Factual and Procedural Background

Judge Baker delivered the opinion. The Applicant was tried at the Crown Court at The City and, on 15 December 2014, was convicted on indictment of three offences arising from separate incidents involving three complainants (Complainant A, Complainant B and Complainant C): sexual assault (Count 2), assault by penetration (Count 3) and rape (Count 4). A submission of no case to answer was accepted in relation to an earlier count (Count 1); an amendment added Count 5 (sexual assault of Complainant A) on which the Applicant was acquitted. On 23 January 2015 the Applicant was sentenced to concurrent periods of detention totaling six years. The Applicant applied, under section 23 of the Criminal Appeal Act 1968, for an extension of time (approximately 9 years and 3 months) to seek leave to appeal against conviction and to admit fresh evidence; this application was referred to the Full Court by a Single Judge.

Legal Issues Presented

1. Whether the court should receive fresh evidence under section 23 of the Criminal Appeal Act 1968 and, if so, whether that fresh evidence is capable of belief and admissible.
2. Whether, having regard to the fresh evidence, any of the Applicant's convictions are unsafe (and thus should be quashed).
3. Whether an extension of time should be granted to enable the application under section 23(1) to proceed.

Arguments of the Parties

Appellant's Arguments (Attorney Magarian)

• The Applicant only learned in May 2022, via prosecution disclosure, of Complainant C's different account provided in 2020–2021; delay in seeking permission is explained by concurrent prosecutions and changes of solicitors.
• The fresh evidence (Complainant C's later admissions that she had lied/exaggerated) would have been admissible at trial and is capable of belief; it renders the convictions unsafe because it undermines the central issue of credibility/consent.
• Although weaker on Count 2 (separate complainant), collusion and the judge's direction on mutual support mean Count 2 might also be affected.

Respondent's Arguments (Attorney Pons)

• Accepts that the fresh evidence would have been admissible and that there is a reasonable explanation for its non-production at trial (it arose post-trial).
• Contended that the fresh evidence did not render the convictions unsafe because Complainant C continued to assert lack of consent even in her later accounts; concerns about Complainant C's mental health were noted but not pressed before the court.
• Submitted Count 2 (different complainant) remains safe because that complainant's account was consistent and the jury properly distinguished between complainants.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Ahmed [2010] EWCA Crim 2899	Obiter passage explaining the approach of the court in appeals based on fresh evidence and that the responsibility for deciding whether fresh material renders a conviction unsafe lies with the court itself.	The court cited the passage as explanatory of the correct approach: the ultimate question is whether the fresh material causes the court to doubt the safety of the verdict.
R v Barker [2021] EWCA Crim 603	Confirmation that the approach in R v Ahmed represents the law; emphasis that the question is whether the conviction is unsafe.	The court relied on Barker to confirm that Ahmed's approach is the law and applied that standard when assessing whether the fresh evidence rendered convictions unsafe.
Pendleton [2001] UKHL 66; [2002] 1 Cr App R 34	Analytical material referenced in relation to assessing fresh evidence and safety of conviction (as part of authorities considered in Ahmed).	Referenced as part of the analytical context supporting the court's approach to fresh evidence; used to inform the court's assessment of safety.
Dial [2005] UKPC 4; [2005] 1 WLR 1660	Authority rejecting the jury-impact test as determinative; the jury-impact test is a mechanism to "test" the court's view but not the ultimate test.	Used to support the proposition that the court must form its own view on safety, not merely ask what impact the fresh evidence would have had on the jury.
Burridge [2010] EWCA Crim 2847	Recent discussion by the court on fresh evidence referenced in Ahmed's analysis.	Referenced as part of the jurisprudential background relied upon in assessing fresh evidence.
Stafford v DPP [1974] AC 878	Authority cited for the proposition that the jury-impact test is not determinative in assessing fresh evidence and safety of conviction.	Relied upon as supporting authority for the court's approach that the ultimate question is whether the conviction is unsafe.
R v Park [2020] EWCA Crim 589	Recent authority illustrating the application of the approach to fresh evidence (followed in later cases).	Cited to show that the approach in Ahmed/Barker has been frequently followed; assisted the court in framing the correct analytical question.

Court's Reasoning and Analysis

The court first identified the statutory framework: section 23(1) of the Criminal Appeal Act 1968 permits reception of evidence not adduced at trial if necessary or expedient in the interests of justice, and section 23(2) lists factors the court should consider, including whether the evidence is capable of belief, whether it may afford grounds for allowing the appeal, admissibility at the original trial, and whether there is a reasonable explanation for failure to adduce it.

The court found there was no dispute that the evidence relating to Complainant C's later accounts would have been admissible at trial (relevant to credibility) and that there was a reasonable explanation for its non-production (it emerged in 2020–2021).

On credibility and capability of belief the court considered Complainant C's mental health history but concluded, having heard her give evidence, that her later admissions and accounts in 2021 were capable of belief: she understood questions and gave rational answers.

The court analysed the centrality of the disputed factual matter (the relative physical positions during the May 2014 incident) to the issue of consent. The trial judge and prosecution had treated the physical positions and consistency of Complainant C's account as central to credibility and consent. The court therefore treated the change in Complainant C's account as potentially significant.

The court noted Complainant C had admitted deliberately providing a false and exaggerated narrative to the police in 2014, to a friend on the same day, and in evidence at trial—partly because she wished the police to take action. She also admitted exaggerating the level of aggression she earlier described.

Applying the governing authorities (notably R v Ahmed and R v Barker), the court undertook its own assessment of whether, in light of the fresh evidence, the convictions were safe. It concluded that, given the centrality of Complainant C's credibility to the consent issue, her later admissions undermined confidence in the safety of the convictions on Counts 3 and 4.

Conversely, Count 2 involved a separate complainant whose account had been consistent; the jury had distinguished between complainants and acquitted on a related count. Taking that into account, the court concluded the fresh evidence did not render the conviction on Count 2 unsafe.

The court acknowledged delay concerns but granted the extension of time as, on balance, it was in the interests of justice to receive the fresh evidence and determine the appeal.

Holding and Implications

HOLDING: The court allowed the Applicant's appeal in part. The court quashed the Applicant's convictions on Count 3 (assault by penetration) and Count 4 (rape), and dismissed the appeal in relation to Count 2 (sexual assault).

Implications: The direct consequence is that the Applicant's convictions on Counts 3 and 4 have been set aside and the conviction on Count 2 remains in force. The court granted the required extension of time to admit the fresh evidence. The prosecution does not seek a retrial on Counts 3 and 4 and therefore no further reporting restrictions under section 4(2) of the Contempt of Court Act 1981 were required. The decision was framed as addressing the safety of the convictions in this case; it did not purport to establish a new legal precedent beyond applying existing authorities on fresh evidence and safety of conviction.