Courts of Appeal
| DOI | 10.1177/002201837303700205 |
| Published date | 01 April 1973 |
| Date | 01 April 1973 |
| Subject Matter | Article |
Court of
Appeal
RECEPTION
OF
EVIDENCE
ON
APPEAL
R.
v. Beresford
It
is provided by s, 23
(2)
of
the
Criminal Appeal Act, 1968
that,
unless they
are
satisfied
that
the evidence tendered on appeal
would
not
afford
any
ground
for allowing the appeal, the
Court
of Appeal
may
exercise their power of receiving such evidence,
provided two conditions are satisfied. First,
the
evidence
must
appear
credible
and
be relevant to an issue raised on
the
appeal;
secondly,
the
court
must
be satisfied
that
there is a reasonable
explanation for the failure to
adduce
the evidence
at
the trial.
The
request
made
by the applicant for leave to appeal in
R.
u, Beresford
(56 Cr. App, Rep. 143) to call
further
evidence before
the
Court
of Appeal raised
the
question of
both
the statutory conditions.
The
applicant was convicted of burglary, largely on
the
basis
of a statement which he was alleged to have
made
to the police.
His defence was a denial of having
made
the statement
and
an
alibi.
Two
police officers were called to
rebut
the
alibi.
They
gave evidence
that
they
had
separately,
and
on different occasions,
seen
the
appellant driving his
car
in Lincoln (where the
burglary
took place), when the applicant swore
that
he was in Cheshire.
Upon appeal, the applicant stated
that
he was aggrieved
that
no
further
witnesses were called for his defence, although he gave no
reason for his failure to call
further
witnesses,
other
than
the
fact
that
he was so sure of being found not guilty
that
he
did
not
think
it necessary.
Of
the witnesses whom the applicant wished to call
before
the
Court
of Appeal, four (all of them members of his
family)
had
been in court,
and
available to give evidence,
at
the
trial;
one, indeed, was expected to do so,
but,
on counsel's advice,
he
had
not
been called. All four
had
at one time or
another
made
statements to the appellant's solicitor. In the circumstances, it is
not
surprising
that
the
Court
of Appeal was
not
"satisfied"
that
these witnesses were
not
"available"
at
the trial.
The
fifth witness, one Winstanley, swore an affidavit to the
effect
that
on
the
night of
the
burglary
in Lincoln he was
with
the
applicant in a
club
in Stockport
and
was driven home by him
and
his brother. As
the
applicant
must
have known
that
he was
at
the
club
with
Winstanley-if,
indeed,
that
were
the
fact-it
is
99
100
THE
JOURNAL
OF
CRIMINAL
LAW
impossible to say
that
areasonable explanation existed for the
failure to
adduce
this evidence
at
the
trial.
The
second condition
stated in s. 23
(2)
of
the
Act
is, therefore,
not
fulfilled
and
the
evidence does
not
appear
to be admissible
under
that
sub-section.
But
the
court
was of opinion
that
"justice would be
better
served"
if
Winstanley's evidence were heard, so
that
the
court
could
decide whether it was "credible", within
the
meaning of the
sub-section.
Having
heard
this evidence, the
court
proceeded to
judge
both
its availability
(at
the trial)
and
credibility, against
the
background of the warning given by
Edmund
Davies L.J. in
R.
v. Stafford &Luvaglio
(1968,53
Cr.
App.
Rep.
1,3)
that
public
mischief would ensue
and
legal process became indefinitely
prolonged if evidence produced
at
any time were
admitted
by
appellate tribunals.
The
first question was whether the evidence could with
reasonable diligence have been obtained for use
at
the
trial.
The
Court
held
that
"now
that
one has
heard
Winstanley in the
witness-box", it was manifest
that
the slightest effort on
the
part
of the defence could have' ensured his presence at the trial.
Particularly in the case of a defence of alibi, it is the
duty
of the
accused to show reasonable diligence to assemble the necessary
evidence
and
"himself to play aproper
part
in assisting the
preparation of the defence". In the instant case, in which, in the
nature
of things, the defence alleged facts
that
were within the
knowledge of the accused, the accused
had
played no
part
in
attempting to
adduce
them
at
the trial. Indeed, this is so obvious
that
one begs leave to
doubt
whether there was any point at all in
allowing Winstanley to be called.
Upon
aliteral construction of
s, 23
(2)
of the Act, it may be doubted whether his evidence was
admissible
at
all:
the
court
may
admit
the
evidence if it is credible
and they are satisfied
that
there was a reasonable explanation for
its non-production
at
the
trial.
This
latter
is a condition precedent
to its admission on appeal: acondition precedent
can
hardly be
satisfied
after
the evidence has been admitted.
In
R.
v. Beresford (supra), the
Court
went on to consider
whether Winstanley's evidence was "credible", although, as
Sachs
L.J.
said,
it
was not "technically necessary" to do so (i.e.
the
court's statement was obiter).
The
court pointed
out
that
"credibility" means "well capable of belief"
and
this
must
be
"credibility in the context of the circumstances as a whole".
Each
member of
the
court
came to
the
conclusion
that
the
witness's
evidence of his remembering the
date
of
the
meeting in
the
club
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