Court of Appeal Refuses Appeal in R v Khayam Khurshid Based on Lack of Credible Fresh Evidence

Citation: [2023] EWCA Crim 1687
Judgment on

Introduction

In the case of R v Khayam Khurshid [2023] EWCA Crim 1687, the Court of Appeal reviewed an application for permission to appeal against a conviction for murder and possession of a firearm with intent to endanger life. The appellant challenged the conviction based on the purported weakness of identification evidence and sought to amend the appeal grounds to include fresh evidence.

Key Facts

Khayam Khurshid was convicted and sentenced to life imprisonment for the murder of Cole Kershaw and related offenses. At trial, his alibi defense was that he was not present at the crime scene but was instead at a different location, specifically outside the Best One Shop. This alibi was later tainted by a conviction for perverting the course of justice relating to an accomplice. Post-conviction, Khurshid sought to introduce fresh evidence to support his alibi and challenge the sufficiency of identification evidence presented at trial.

No Case to Answer and Turnbull Guidelines

A pivotal point in the appellant’s argument revolves around the judge’s decision to reject a ‘no case to answer’ submission at trial. This decision is grounded in the guidelines established in R v Turnbull [1977] QB 224, where poor quality identifying evidence, such as a fleeting glance or observation made under difficult conditions, mandates a judge to withdraw the case from the jury unless corroborative evidence exists. In R v Goddard and Fallick [2012] EWCA Crim 1756, the court elaborated on the criteria for considering ‘no case to answer’, emphasizing that the judge should assess whether evidence could lead a reasonable jury to convict.

Application to Amend Grounds and Fresh Evidence

Permission to amend grounds post-conviction is directed by Criminal Procedure Rules 36.14(5), requiring consideration of various factors including delay, the interest of justice, and why the facts were not raised initially. Fresh evidence may be admitted under Section 23(2) of the Criminal Appeal Act 1968 if it is credible, would have been admissible at trial, might afford ground for an appeal, and carries a reasonable explanation for its initial omission.

The Court of Appeal applied these principles, observing that while the identification evidence required a robust Turnbull warning, it was not so insubstantial as to warrant withdrawal from the jury. Regarding the fresh evidence, the court scrutinized the credibility of the new witnesses and whether their absence from the trial was justifiable. The court found no reasonable explanation for their failure to testify at trial and deemed the fresh evidence unable to significantly impact the jury’s already thorough findings. Consequently, the court also referred to R v Vowles [2015] EWCA Crim 45 regarding the interests of justice, reiterating the importance of why evidence was not introduced at trial.

Outcomes

The Court of Appeal refused the application for permission to appeal against the conviction. It dismissed the new alibi evidence as non-credible and lacking a reasonable explanation for its absence at the original trial. The court ruled that admitting the fresh evidence would not serve the interests of justice and the applicant’s prior defense had already been undermined by related convictions for trying to pervert its course.

Conclusion

R v Khayam Khurshid reinforces the principle that conviction appeals must demonstrate the unreasonableness of the original jury’s verdict based on the evidence at trial. The refusal to introduce fresh evidence illustrates the need for such evidence to be credible, substantively different, and accompanied by a valid reason for its initial exclusion. Furthermore, the interests of justice remain a paramount concern—notably when previous attempts to manipulate the evidence have been observed. This case upholds the integrity of jury verdicts where accused parties have been duly convicted based on reliable and substantiated evidence.

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