Chuhan, R. v [2017] EWCA Crim 776

[2017] EWCA Crim 776Case No 201602297 B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/06/2017
Before
LORD JUSTICE SIMONMR JUSTICE GREENRECORDER OF MIDDLESBROUGHHIS HONOUR JUDGE BOURNE-ARTON QC(sitting as a Judge of the CACD)
Between
Mohammed Najeeb ChuhanAppellant
Ms P May appeared for CrownMr J Cartwright appeared for AppellantHearing Hearing date: 26 th May 2017
Judgment ApprovedMR JUSTICE GREEN :
[1]On the 22nd July 2014, the Applicant was convicted at Snaresbrook Crown Court before HHJ Zeidman QC and a jury, on four counts of rape, contrary to Section 1(1) of the Sexual Offences Act 2003 (counts 1, 3, 5 and 6), for which he received concurrent sentences of 15 years imprisonment. He was also convicted on one count of assault by penetration contrary to Section 2 of the Act for which he received no separate penalty. An appeal against sentence failed.[2]The Applicant applied to adduce fresh evidence and for leave to appeal out of time. If the fresh evidence was permitted to be adduced then it is argued that it establishes that the verdict was unsafe. On the 17th January 2017, the Full Court adjourned the application to permit arrangements to be made for three witnesses to attend and to give evidence to this Court in support of the application, out of time, for permission to appeal upon the basis that the conviction is unsafe.[3]The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offence. Pursuant to these provisions, where a sexual offence has been committed against a person, no matter relating to that person, shall, during that person’s lifetime, be included in any publication if it is likely to lead members of the public to identify the person as the victim of the offence. This prohibition continues to apply unless waived or lifted in accordance with Section 3 of the Act. B. Background Facts[4]The background to this case may be described in the following way. The Applicant was convicted of four offences of anal and two of vaginal rape against his wife, the complainant, “L”. At trial, the Prosecution argued that the Applicant and L met in Morocco. They married and came to live in London in December 2012. However, the house that L moved to was not what she was expecting. Her husband’s brother was living there and there was, moreover, a tenant in the premises. She also learned that her husband had been married before and had a child. It was the L’s case that the Applicant changed after they arrived in London. There was no privacy. He became controlling. He complained about her behaviour as a wife. He complained about the food. His brother was not happy with her. He gave her no money and generally behaved badly towards her. Upon occasion he threatened her with a knife and he inflicted violence upon her. Sexual activity started normally but after a short period he began to criticise her sexual performance. He wanted to engage in sex “from the back”. Upon another occasion he cut his stomach with a knife and threatened to do the same to L. He regularly smoked hashish and grabbed her by the neck trying to have sex from behind. He inserted his fingers into her anus. He attempted to have anal sex, succeeded and ejaculated. Subsequently there was blood from her anus (counts 1 and 2). He persuaded her to take a shower with him. He soaked her anus and penetrated her once again. She told him to stop but he refused saying he had a right to do this in a Muslim relationship (count 3). Upon one occasion, whilst she was having her period, she told him that she did not want sex but he penetrated her anyway (count 5).[5]Upon one occasion she thought that some of her jewellery had gone missing and she called the police. When the Applicant discovered this, he struck her and threatened that he would kill her next time if she called the police. Later the Applicant and the complainant went to Morocco where her parents lived. The complainant explained to her mother and brother what her situation was. On their return to London she discovered that she was pregnant. The Applicant left her without food for about a week. She did not want to have sex with him but he did so anyway, biting her all over her body (count 6). Thereafter she left him, finding refuge elsewhere through the intervention of two Moroccan ladies.[6]In interview, the Applicant refused to answer questions upon the advice of his solicitor. At trial, in his defence, he denied that he had had anal sex. But he admitted that he had put his finger into L’s anus, though this was with her consent. He denied that there was sex after she became pregnant. He denied any form of mistreatment or that he was controlling towards her. He stated that he worked at a care home where phones were handed in so that he could not have controlled her from his work in the way that she alleged. He said that the cuts to his stomach had occurred before the marriage and were unconnected to any threat or sexual violence towards his wife. He allowed her full freedom of movement. For instance, in Morocco she was able to speak to her family but she returned voluntarily with him to London. He was very pleased at the fact that she was pregnant and consensual sex occurred.[7]In his careful summing up to the Jury the Judge set out fully all of the facts and matters which had arisen during the trial. The crux of the issue for the Jury was the credibility of the L and the Applicant. The Jury convicted the Applicant and he was sentenced accordingly. C. The Fresh Evidence[8]The Applicant now seeks to place before the Court new evidence from three witnesses which it is said has become available after conviction. The witnesses are Ms Sevine Zarali (“SZ”); Ms Gulhanim Aksoy (“GA”) and Ms Natasha Donmall (“ND”).

(i) The approach to the evidence

[9]The test for the admissibility of fresh evidence is that set out in the Criminal Appeal Act 1968, Section 23(2). This provides:
“(2). The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to— (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”
[10]The case law on section 23 is settled. There is no need to recite it in any detail here. Certain points are however worth setting out. First the section is concerned with the question whether the Court will “receive” the evidence. If the Court decides to receive the evidence, then the second but quite separate issue is whether it is such that it renders the conviction unsafe. Second, the matters listed in section 23(2) are merely illustrative of the matters that the Court can take into account and the test or receivability is a broad one which focuses upon the interests of justice.[11]The approach that we have taken has been to receive the written statements and to hear oral evidence in chief from the witnesses and for them to be cross examined upon that oral evidence and upon their statements. Having done this we now consider the central issue which is whether the evidence renders the verdict unsafe. (ii) The evidence of SZ[12]We start be summarising the witness statement evidence of SZ. She met L on the 4th June 2013. She worked for an organisation called Language Friendship which gives advice on the help available to foreigners in different fields. L came into the office on the 4th June 2013 with two other Moroccan women. She told a secretary that she had domestic issues and needed advice. Because of her broken English the secretary assumed that she needed a divorce lawyer. However, her body language showed otherwise and she was ultimately directed to a women’s organisation in Islington, London. SZ, in due course, provided substantial help and assistance to L to find lodgings. Indeed, SZ and L became friendly and came to share a flat. In her written witness statement, SZ gives extensive detail of the assistance she provided to L, including when she gave statements to the police.[13]SZ also gave a statement to the police. It is dated 3rd January 2014. It is in large measure consistent with the evidence given by L. It states that L had told SZ that her husband was dangerous, that he had threatened her and had raped her both virginally and anally, the latter being forbidden by the Quran. However, the statement is unsigned.[14]In the summer, SZ went away to Turkey for a time and on her return she learned from the Applicant’s niece that the trial had occurred and he had been found guilty. The relationship with L had broken down. She says that she was shocked and felt guilt as she had assisted L. She told the Applicant’s solicitors that she would give a statement and that she had refused to sign the statement prepared at the police station upon the basis that it was biased on the part of the officer and she did not believe it was the truth as it was not the proper interpretation of L’s characteristics.[15]In a later written statement dated the 12th September 2014, SZ adopted a quite different position to that in the unsigned statement. In this statement, SZ stated that L told her that the sex was consensual, that L admitted exaggerating her complaints about her husband and that she began to have doubts about L and her accusations as things that L said did not “match up”. L’s behaviour and comments were strange and made SZ question her character. She then explained in detail how L had let her down. The relationship between L and SZ had deteriorated very badly. L was a liar and untrustworthy. So SZ contacted the Applicant to tell him that she knew he was innocent and to apologise for having helped “a liar”. She went to the Applicant’s house with her mother and aunt but no one answered. So she left her name and number on a card asking him to contact her immediately. However, she says that the Applicant was concerned that this was one of L’s “games”. In the event her offer of help was not taken up by the Applicant or his legal team.[16]She says that she has been affected psychologically by the incident and she was on antidepressants and has been sacked from her employment. She says of L: “Everyone that met her, aunties, work colleagues, step-dad, cousins, and friends warned me about her. They said her behaviour doesn’t seem right”.[17]In paragraph [45] she says: “[The Complainant] has lied throughout the time I have known her. She has used everything against me. She has destroyed my relationships with my friends and family. I have lost my job, my trust in people and my own self-belief. I doubt my judgments; I have sleepless nights and am still struggling to accept what has happened. I am a caring person and have always gone out of my way to help people; I now hesitate to help anyone. I have psychologically been affected by what she has done. I also feel overcome with guilt knowing that an innocent man is in prison, I truly believe that had I not helped [the Complainant] he would not be in prison. I am upset with myself for trusting [the Complainant] despite obvious signs, her behaviour, her comments and advice from everyone around me”.[18]She explains the circumstances in which she declined to sign the statement prepared for her by the police. She says that in late August 2013 she went to Turkey. Upon her return, about a month later, she received a message that she should not contact L or her family. She said that she received threatening messages to this effect. When she attempted to phone L’s telephone number there was no answer. She became so worried that she went to the police and left a message for DC Spencer White on the Sapphire Team. She explained what had happened to her and this included her account of L having misled her and let her down. She says that DC Spencer White was very shocked and said:
“Oh my god I cannot believe [the Complainant] has done this to you, if she has lied to you god knows what she had lied to us about. This changes the whole case as she has definitely lied about her husband and told me I need to come in as soon as possible and give a statement as this could help [the Applicant’s] case”
. She went to the police station about a week later but refused to sign the statement upon the basis that DC Spencer White was putting words into her mouth. He had changed his tune completely.[19]In oral evidence before this Court SZ gave an account how she first came to meet L and to befriend her and how she and L came to live together. She also explained how the relationship had deteriorated and how they fell out over a number of matters including money that she said she had lent to L. She explained that it was at this point that she came to doubt L’s version of events. She explained how she came to give a statement to DC Spencer White and as to why she refused to sign the statement. She also gave a detailed account of how she had gone to the Applicant’s house to offer her assistance in 2013 but that he had failed to make contact with her. She said that she put on the note that she left at his house that if he (i.e. the Applicant) did not trust her that he should speak to her mother, whose telephone number she gave. She said “I offered my help. He did not take it”. She was aware that prior to the trial the CPS had given her details to the defence team and she was aware that this included her unsigned statement.[20]In response to SZ’s evidence about to the making of the unsigned statement to police the Crown called DC Spencer White to give evidence. He explained that he had no clear recollection of his actual conversations with SZ but he did say that the words she attributed to him (see paragraph [18] above) were wholly inconsistent with the sort of thing that he, as a long standing experienced officer, would say. He said that it was not his job to comment upon evidence as he collected it from a witness and he would have transcribed everything that she had said to him. He would not have left anything out, even if he did not think it was particularly relevant. (iii) The evidence of GA[21]We turn now to the evidence of GA. She is the aunt of SZ, although there is no great age disparity between the two women. She met L through SZ. She says in her statement that SZ convinced her that L was innocent and needed help. However during the time she knew L she was seen with at least five different men, she would boast about her dates. GA found this “extremely disturbing”. L was “a promiscuous woman”. Whenever she saw L she was dubious about her and she did not understand why SZ wanted to assist her. She saw L as happy, as a person who liked dancing and who regaled her with stories about her relationship with other men. This caused her suspicions to grow. On one occasion at a house warming party she saw L wearing a light tan outfit teaching the teenage daughter of GA to dance “seductively”. L’s statement that she was a good Muslim and loved her religion was inconsistent with her behaviour. As she got to know L better she saw inconsistencies with her story. She began to question L about her life in Morocco. L explained that she hated her life in Morocco and wanted to come to London. GA suggests that L’s motivation was to find someone who would enable her to move to London in order to live and benefit from the generous social security system. GA says that when L referred to her husband she described him as a good man and that she had had no choice but to “exaggerate her story about the rape”. But when she asked L about why she should lie about the Applicant raping her GA said that L said that “… he was not a nice guy. He hurt me. I want to be free”. L told her not to tell anyone since she did not wish to go back to Morocco. She says that she told SZ about these revelations. This provoked a row and SZ accused her of lying and being jealous of her relationship with L. She thought that L had a hold over SZ.[22]The position changed when SZ returned from her holiday in Turkey (in summer 2013) and was unable to make contact with L. She concluded that something was “not right about” L and that it was her husband (the Applicant) who needed their help. It was this that led her and SZ and SZ’s mother to visit the Applicant’s home in person. He was not present so they left a note asking him to call them as soon as possible. However she was never contacted by anyone until subsequent to the trial when she was asked if she would be prepared to write a statement.[23]She concludes her statement with the following:
“[The Complainant] is a conniving woman and will not stop at getting what she wants even if it means hurting people on the way. I am now convinced that the rape allegations were just a means to getting her to London. I have read about hundreds of similar cases of women like [the Complainant] who cheat the British system and now feel it is my duty to help [the Applicant].”
[24]In her oral evidence to this Court GA said that L confessed to her that her chid was not that of the Applicant but was that of some other boyfriend who had raped her. She said that L told her that she had married the Applicant to escape Morocco. In examination in chief she said this when asked whether L had told her what her husband had done to her: “No she did not speak to me about what [the Applicant] did to her or anything like that “. But she then said that she thought that L was making things up in order to stay in the United Kingdom. She said that she did not tell anyone about her conversations with L. Her version of how she went with SZ and SZ’s mother to contact the Applicant was consistent with the version given by SZ.[25]In cross examination she said that L told her that the Applicant had not tried to rape her but that it was the boyfriend who had raped her. She said L confessed that she made up the allegation to stay in the UK. She then said that she did tell SZ and that this revelation was one of the reason why she attempted to contact the Applicant. But she said that when he did not contact her, she did not try again. She did not wish to get involved. It was not her problem.[26]She was questioned about the fact that in her written statement she had not said that L confessed to lying but only that L had told her that she had “exaggerated” her account (see paragraph [21] above). GA responded that in her mind there was no real difference between exaggeration and lies. (iv) The evidence of ND[27]The final witness was ND. In an email dated 24th July 2015 to the Applicant’s solicitors she explained that following the trial she met L over the course of a weekend when she was staying in the same house that SZ and L were then living in. There was no pre-existing relationship between her and L. But there was a per-existing relationship between ND and SZ. She met L when her husband had to visit the Turkish embassy in London and stayed with SZ and L. SZ was a friend of ND’s husband. ND had several detailed discussions with L of a personal nature during which L complained that her husband had wanted to try “different disgusting sexual things”. He would always ask her to try anal sex. She did not enjoy sex with her husband; it was nothing more than a duty. She never mentioned the word “rape”. She said that although L was Muslim she had a boyfriend, would put on make-up and did not wear a hijab and whilst she was staying in the house L came back with a man and (she surmised) had sex with him. L contradicted and changed her story many times over the period that she stayed with her. When she had a conversation with L about the fact that her husband was charged with rape L changed the subject. ND says that this was because she had already told her a different story during which she had never mentioned the word rape. She said L told her that the police were classing it as rape because the sex was anal.[28]Subsequently, ND was interviewed by counsel and a recording was made of the conversation. The way in which ND describes her conversations with L is different in this recording. ND recounted a conversation with L in which L told her about her “story”. She was told that her husband had done “terrible things to her”. She referred to the fact that she had been forced to participate in sexual acts, including anal sex. ND did not remember fully the details of the conversations because they were approximately three years prior to the making of the statement in question. She does say that she was struck by the fact that L never said that she was forced to have sex with her husband but that she felt that it was “routine”, something she had to do. ND commented upon the fact that L was not wearing hijab. She refers to an occasion when L engaged in sexual activity with a third party. ND considered this to be confusing and inconsistent with her previous account. L did not admit to having had sex with this third party, but it was “obvious” to her that she had. She refers to other conversations in which she obtained an “impression” about L. The general tenor of the statement is that L submitted to sex but that she did not enjoy it and did it to keep her husband happy. The conversations were “a long time ago” (3 years). She had the “impression” that L was trying to explain to her why she had been having a “bad time” with the Applicant.[29]ND’s oral evidence was essentially consistent with that given in her written statements. She expressed puzzlement as to why L would wish to unload her story in such detail to ND. In her evidence she was seeking to summarise conversations that had occurred some years earlier. D. Analysis[30]We have treated the evidence as received under section 23. The real issue is whether it renders the conviction unsafe. In our judgment, the new evidence has significant difficulties associated with it. This is both in relation to its inherent credibility and weight, and as to the circumstances in which it has come to light and was not deployed by the Applicant during his trial.

(i) General observations on the evidence

[31]We start with three general points about the evidence.[32]First, the new evidence does not address the actual rapes but goes to the L’s credibility. L was cross examined on her credibility at trial at length and the Judge directed the jury fully upon this. As the Crown points out the Judge reminded the jury of a wide variety of different evidential matters which went to credibility which had been raised in the trial. From the Judge’s detailed and careful summing up it can be seen that these included (but are not limited to): delay on the part of L in complaining to the police and her failure to ring 999; whether L’s husband had in fact misled her about the conditions she would be living in when in London; her immigration status and whether she was fabricating the allegations to improve her application for indefinite leave to remain; the fact that she did not mention in her statement to the police matters that she mentioned in Court (for instance about her husband cutting his stomach); her attempt to explain inconsistencies in her evidence by reference to her poor English when it was clear that she was fluent in English; her failure to go the doctor about her injuries; uncertainty as to how many times she had had anal sex with her husband; whether it was possible for penetrative sex to occur when she had a period because she used a tampon, etc. The Judge went through credibility issues with the jury at considerable length. He emphasised that in relation to such matters it was for the Prosecution to make the jury “sure” that L was being truthful, and not for the Applicant to prove that she was being untruthful. As such the “new” evidence goes to an issue that was explored thoroughly in the trial; it is not evidence which introduces a new dimension to the evidence.[33]Second, the new witnesses are (albeit in varying degrees) motivated by personal hostility towards L. This is clear from their witness statements and from their oral evidence. This is especially the case with SZ and GA who object to the complainant on multiple personal grounds viewing her as un-Muslim (not wearing a hijab, not praying), promiscuous, engaging in seductive dancing, conniving, being disloyal to SZ on a personal level etc. We have set out the evidence above. They say that L made up the stories so that she could be rid of her husband and stay in the UK on benefits. In fact, L was given ILR in 2013, long before the trial. SZ and AK are connected (aunt and niece) and are close personally. The clear impression, conveyed to us by their written and oral evidence, was that they exhibited a shared hostility to L for reasons unconnected to the alleged rapes. Both witnesses accepted in their evidence that their views about L’s veracity changed in the light of their personal experience of L. The risks associated with strong personal animosity are less obvious with ND but, even in relation to her, there are a series of personal comments of an adverse nature which seems to have affected her views of L. ND was evidently unimpressed with the fact that L seemed to wish to force her story upon ND and that she appeared to be inconsistent in claiming to be Muslim but acting in acted in an un-Muslim manner including by being promiscuous. Generally, the personal hostility demonstrated by these witnesses towards L undermines the credibility of their evidence.[34]Third, the fact that a good part of the new evidence seems motivated by an irrelevant personal animus raises a related problem. There are serious question marks which would arise as to the admissibility of such evidence. But even if that inadmissible part were excluded there is an additional problem since there remains an admissible core to the evidence which goes directly to whether L was lying in her evidence in Court. But this itself gives rise to a difficulty. If the witnesses were permitted to give this admissible core evidence, then the Prosecution might wish to challenge the credibility and veracity of the witnesses upon the basis that their evidence was motivated by personal hostility towards L. The Prosecution might well wish to put to a witness that she disliked L intensely and that this dislike affected the evidence given. If this approach was adopted it would then risk opening up the matters which are otherwise irrelevant and inadmissible, including matters relating to L’s sexual history. Yet if the Court disallowed such questioning it could be unfair to the Prosecution and thereby to L since the jury would be deprived of significant material which potentially undermined the credibility of the defence witnesses and about which they would need to form a view on L’s credibility. As matters stand we consider that admitting even the admissible core of this evidence risks opening up irrelevant and inadmissible matters and diverting attention into satellite or collateral disputes; but not admitting the evidence risks unfair prejudice to the Prosecution and to L and depriving the jury of material that would be relevant to their evaluation of the credibility of the new witnesses and of L. In our judgment, we are entitled to take account this problem into account when considering probative value of the evidence and we consider that it significantly weakens the overall probative value of the new evidence. (ii) The evidence of SZ, GA and ND[35]With those three general observations in mind we turn to the individual witnesses themselves. As for SZ we make the following observations about her evidence. SZ’s view of L changed fundamentally because of her personal dealings with L. It was, as she accepted in her oral evidence, these personal matters which led her to doubt the veracity of the account given by L earlier that she had been raped by her husband. SZ was an emotional witness. When she gave her oral evidence it was clear to us that SZ felt very strongly that L had been disloyal to her and that because of this she was not trustworthy or credible. She told us in evidence that it was when she terminated her relationship with L that she changed her view of L. Over and above this there is little that we find convincing in her evidence to the effect that L confessed to her that she had been lying. The conversations she referred to, which were said to amount to confessions of lying, occurred about 4 years earlier. She was imprecise in many of the details of these conversations with L. We formed the overall view that her concerns about L’s veracity were overwhelmingly due to her personal experience of L in matters unrelated to L’s marital relations with the Applicant. There were many ambiguities and inconsistencies on the detail of her evidence. We were also unconvinced by her explanation for not signing the witness statement. We found the evidence of DC Spencer White to be credible. We do not accept that he made the statement attributed to him. The statement is simply not the sort of partisan observation that an experienced officer would make in what was a relatively routine rape investigation. It just does not ring true.[36]As for GA, she told us that her memory for past events was not always accurate. She clearly had difficulties in recalling the details of what had occurred. We found her evidence to be unsatisfactory especially since she was unable to explain the difference between exaggeration and lies. As a matter of elementary logic a person who has in fact been raped might exaggerate the details of the rape (for example by overstating the degree of force or violence used) but that would not necessarily cast doubt upon the underlying fact of the rape itself. But, the same cannot be said of a person who lies about the very fact of being raped. There is a real difference between lies and exaggeration and we have had difficulty in knowing on which side of the line GA’s evidence lies. We are also of the conclusion that GA’s evidence was strongly influenced by the personal hostility of view of SZ towards L and of her own hostility to and distaste of L.[37]As for ND, we acknowledge that she was less personally involved with L and had less reasons to feel personal animosity towards her than did SZ and GA. We nonetheless have a concern that her recollection and her evidence has been affected by her dislike of L’s personal behaviour. She accepted that she could not recall the exact words used in her conversations with L. Her recollections are based in part at least on impressions from her conversations with L. We doubt whether L did in fact use the words attributed to her. We are concerned that ND’s view is based in part on what she says L did not say to her (ie that she had been raped). Of the three witnesses we found ND to be the most convincing, though as noted, there are still significant difficulties with the evidence. (iii) Inconsistency in the evidence of the new witnesses and the Applicant’s principal defence[38]We are also troubled by the fact that there are serious inconsistencies between the evidence given by the new witnesses and that given at trial by the Applicant as a central plank of his defence. At trial the Applicant denied anal sex. His clear and firm evidence to the jury was that for religious and cultural reasons he would not engage in such activity. He was cross examined upon this and the Judge reminded the jury of this evidence in his summing up. Yet even the new proposed witnesses accept that L told them all that she had been engaging in anal sex with her husband which she did not like or want. As such the new evidence supports the Crown’s case and not that of the Applicant in that if it is believed by a jury it casts the Applicant as an untruthful witness. It is thus a factor against any conclusion that the conviction is unsafe. (iv) Is there a reasonable explanation for the failure to adduce the evidence at trial?[39]One of the factors affecting receivability under section 23 is whether there is a reasonable explanation for the failure to adduce the evidence at trial. As explained we have received the evidence and are considering whether it renders the conviction unsafe. It nonetheless seems to us that a factor we should consider is whether this is evidence that should have been adduced at trial and if it should have been, why it was not. Mr Cartwright for the Applicant argued that the evidence was inherently credible and that it would undermine justice if we took the “technical and artificial” point that there was no proper explanation why the evidence had not been adduced at trial. At one level we accept that if new evidence is compelling then the strength of an objection based upon the absence of an explanation for it not having been tendered before may be muted.[40]But this is not such a case. In this case the intrinsic probative value of the fresh evidence is not strong and in some important respects adverse to the Applicant’s case and supportive of the Prosecution case. In such circumstances the Court is bound to wish to know why the evidence was not called at trial, because if the Applicant’s advisers were aware its existence yet took the view that it was unwise to adduce it, then that is a legitimate contemporaneous forensic choice taken by the defence team and it would be highly unlikely that the Court would consider that a belated change of mind rendered the conviction unsafe.[41]Both SZ and GA stated that they harboured doubts about the veracity of L before the trial and made their concerns known to the Applicant and to his family. The unsigned statement of SZ was also included in the unused material, prepared long before the trial, and the absence of a signature on what was otherwise inculpatory evidence could have put the defence team on notice that SZ might be worth contacting. Yet, the Applicant did not take up the chance to call either SZ or GA as witnesses. SZ and GA told us in evidence that they had not been contacted prior to the trial because, in their view, the Applicant’s legal representatives did not trust them, thinking that they were on L’s side.[42]There is however no evidence before the Court explaining what steps were taken, if any, to investigate these witnesses by the defence prior to trial. See R v Gogana [2000] Crim LR 571 (CA); Archbold (2017) page 1282 para 7-206 emphasising the need for a full explanation of the circumstances surrounding the obtaining of the new evidence in the context of receivability under section 23. Trial counsel is no longer instructed and there has been no waiver of privilege to enable the reasons for the non-calling of these witnesses to be exposed to scrutiny. Moreover, there is no statement from the Applicant’s solicitors who acted for him at trial explaining the relevant circumstances surrounding the collection of evidence. And there is no explanation even now from the Applicant’s present solicitors or advisers addressing any of these matters. The explanation given by SZ and GA, that the Applicant and his advisers did not trust them, is simply their speculation. In short the evidence of SZ and GA was available prior to trial and this Court has no real or credible explanation as to why it was not relied upon then. The evidence is not so compelling that it can stand alone such that justice would demand that we ignore any prior failings. In this case we consider that the circumstances surrounding the omission to call SZ and GA are such that we do take it into account as a factor in our overall conclusion.[43]We accept that this criticism does not appear to apply in relation to the evidence of ND. But when taken in the round our concerns as the circumstances in which the fresh evidence has come into being reinforce our overall conclusion as to the unsatisfactory nature of the evidence.

F. Conclusion

[44]Taking all the above matters into account we do not consider that the conviction was unsafe. L was cross examined at trial upon her credibility by reference to a wide range of matters, some of which overlap with the fresh evidence. The Judge ensured that all such matters were squarely before the Jury dealing with them in detail in his careful summing up. The new evidence goes to that same issue of credibility. But its intrinsic value is not great. It is a singular feature of the case that the evidence is affected by personal hostility towards L, for reasons unrelated to the alleged rapes. The evidence is also based upon conversations held some years ago and the recollection of the witnesses was vague and incomplete in material respects. There are also inconsistences in the evidence which go to the heart of the Applicant’s defence and serve to strengthen the Prosecution case. We consider that these considerations substantially weaken the value of the evidence. We are also concerned that the probative weight of the evidence, if it is to be fully and fairly tested, risks diverting any new trial into prima facie inadmissible and irrelevant satellite issues. Over and above such concerns the evidence of SZ and GA was available to the defence prior to trial but was not used. We have been given no explanation by the Applicant or his advisers for this omission in circumstances crying out for a full explanation. This is an additional factor we have taken into account.[45]For all these reasons we refuse to quash the conviction upon the basis that it is unsafe in the light of the new evidence.