R v Yusf Mahamed Ali

MRS JUSTICE THORNTON: Introduction

1. The Applicant applies for an extension of time of seven days in which to renew his application for an extension of time (1,260 days) for leave to appeal against conviction, following a refusal by the single judge. Facts

2. In short, the facts are that on 4 February 2020, the Applicant (then aged 19) was convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act, affray and possession of an article with a blade.

3. The Prosecution's case was that the Applicant had pushed the complainant over a balcony at flats during a party and had engaged in an affray generally whilst in possession of a knife. The ground of appeal

4. The ground of appeal is that there is fresh evidence from an engineer and falls expert which undermines the evidence of the complainant and should be admitted pursuant to section 23 of the Criminal Appeal Act 1968 because it is said to cast serious doubt on the safety of the conviction. The expert, it is said, considered the alleged mechanism of the fall and concluded that the complainant's centre of gravity would have been below the balustrade handrail, making it almost impossible for her to have been pushed over it. If she had been forced over the balustrade then she would have fallen head first, passing the through the lightwell and maintaining that position for the duration of the fall. There is no suggestion that this was the case or that she rotated during her fall. Refusal of the single judge

5. Refusing leave to appeal against conviction, the single judge gave the following reasons: "No explanation whatsoever has been proffered as to why expert evidence of the type now sought to be relied upon was not deployed at trial. There have been no relevant developments in the period which has elapsed since your convictions which can be relied upon by way of justification. Over four years have elapsed since your conviction and it would be wholly unjust after this length of time for permission to be given to adduce expert evidence in the form of the report relied upon, particularly when the author was not in court to hear the relevant witness evidence. As this court observed in R v Erskine [2009] EWCA Crim 121, it is exceptional to permit evidence adduced on appeal when it could and should have been advanced at trial.Your conviction was not unsafe and no purpose would be served in granting an extension of time." Discussion

6. We agree with the single judge. In R v Jones [1997] 1 Cr App R 86, Lord Bingham indicated that it was unlikely that section 23 of the Criminal Appeal Act 1968, which was enacted to protect defendants against the risk of wrongful conviction, was framed with expert evidence prominently in mind. Expert witnesses are interchangeable in a way in which factual witnesses are not. It would subvert the trial process if a defendant convicted at trial were to be generallyfree to mount on appeal an expert case, which if sound, could and should have been advanced before the jury.

7. In addition and in any event, the evidence in question proceeds on the basis the complainant was standing on flat feet, whereas her evidence at trial was that she was leaning over the balcony at the relevant time. There are therefore significant limitations to the new evidence. Moreover, the complainant was cross-examined and the jury had photographs, a 360-degree presentation of the area and video footage to consider.

8. Accordingly, it is not arguable that the conviction is unsafe. The application to renew permission to appeal is refused on its merits, and it is not, therefore, necessary to consider the extension of time. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]