MIK, R. v

Factual and Procedural Background

The appeal arose from convictions in the Crown Court in The City for rape and controlling and coercive behaviour in an intimate or family relationship; the Appellant received an extended determinate sentence of 12 years, made up of 8 years’ custody and a 4-year extended licence period. [Para 26] The Appellant had also been acquitted of several other sexual offence counts. [Para 26] Earlier in the appellate process, his application for leave to appeal against sentence was dismissed, and all but one ground of his conviction appeal were refused; the remaining ground concerned only the rape conviction on count 4. [Para 27] The prosecution case was that the Appellant had been in a relationship with the Complainant for over 20 years and had subjected her to controlling and coercive conduct, including violence and monitoring behaviour. [Para 28] Count 4 concerned alleged non-consensual anal rape, supported principally by the Complainant’s ABE interviews and corroborative evidence from family, friends, a paramedic, and a clinical lead. [Para 29][Para 31] The Appellant’s defence was that all sexual activity was consensual, and it relied in part on the Complainant’s prior silence, her communications with him, and expert and family evidence. [Para 34][Para 35] The present application concerned alleged fresh evidence in the form of recovered text messages found on a mobile phone at the Appellant’s aunt’s address after leave to appeal had initially been refused. [Para 38]

Legal Issues Presented

1. Whether the recovered text messages constituted fresh evidence admissible on appeal under section 23 of the Criminal Appeal Act 1968. [Para 55][Para 56][Para 67]
2. If the evidence was admissible, whether it might reasonably have led to an acquittal or otherwise rendered the rape conviction unsafe. [Para 73][Para 83][Para 92]

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that reasonable diligence had been used, but the phone had not been found because he was in custody for substantial periods and was at times far away from The City while on bail. [Para 85]
• He submitted that disclosure efforts had been inadequate, particularly because the Complainant had kept the same phone number throughout, and that the messages were therefore important evidence that the prosecution should have uncovered. [Para 86]
• He said the messages were relevant to the Complainant’s credibility, her alleged dishonesty, and the issues of consent and belief in consent on count 4. [Para 86][Para 88]
• He further submitted that the messages provided important contemporaneous context for the jury and could have assisted cross-examination if the case were retried. [Para 37][Para 88]

Respondent's Arguments

• The Respondent accepted that the texts appeared credible on their face, but argued that they were not fresh evidence because there was no reasonable explanation for failing to adduce them at trial. [Para 84]
• The Respondent contended that the Appellant knew about the phone and had been responsible for helping locate it, so the evidence could have been obtained with reasonable diligence. [Para 84][Para 89]
• The Respondent also argued that, when read in context, the messages arose from disputes about infidelity and would have had little or no impact on the safety of the conviction. [Para 84]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court approached the application under section 23 of the Criminal Appeal Act 1968, which permits reception of fresh evidence only where necessary or expedient in the interests of justice and requires attention to capability of belief, relevance to the appeal, admissibility, and any reasonable explanation for the failure to adduce it earlier. [Para 55][Para 56][Para 61][Para 67] It also relied on the authorities stressing that a defendant must advance available evidence at trial and cannot keep material in reserve for appeal. [Para 68][Para 71][Para 76]

The Court held that the Appellant had not shown reasonable diligence. The phone had been known to him, had been in premises he occupied with the Complainant, and the messages had in fact been received and replied to by him; the Court considered it insufficient that he had been in custody or had used multiple phones. [Para 89][Para 90] The Court further observed that responsibility for preparation did not lie only with the prosecution, and that the Appellant should have instructed his solicitors to ensure that phones left at prior addresses were located. [Para 90][Para 91]

Even putting freshness aside, the Court concluded that the messages would not reasonably have led to an acquittal. Read in context, the messages arose from existing disputes about infidelity and from an incident in which the Complainant had already given inconsistent accounts, so they added little to the credibility issues already before the jury. [Para 94][Para 95][Para 96] The message about never refusing sex was treated as a sarcastic response within a wider argument and was said to have little, if any, forensic weight. [Para 99][Para 100][Para 103] The Court therefore considered the material incapable of affecting the jury’s verdict or the assessment of consent and belief in consent. [Para 101][Para 103]

Holding and Implications

Appeal dismissed. [Para 104] The Court refused to admit the recovered messages as fresh evidence and held that, in any event, they would not reasonably have led to an acquittal or undermined the safety of the rape conviction. [Para 89][Para 103][Para 104] The direct effect was that the Appellant’s conviction stood, and the opinion did not announce any new principle beyond applying existing fresh-evidence authorities. [Para 104]