A defendant's appeal was dismissed where failure to call a witness was not a product of oversight but a reasoned decision that was open to competent counsel and solicitors to make.Appeal against conviction by the defendant ('J') after trial at Snaresbrook Crown Court on 8 July 2002 before HH Judge Kennedy and a jury. J was convicted of racially aggravated harassment contrary to s.32(1)(a) and racially aggravated causing of harassment, alarm or distress contrary to s.31(1)(b) Crime and Disorder Act 1998, and was sentenced to nine months' imprisonment on each count. S was the victim of the conduct complained of. The Crown's case had been that J had allegedly made racist remarks in S's hearing and on another occasion had made a Nazi salute in S's direction. S's parents and brother had witnessed the alleged words and S's girlfriend had witnessed the salute. The conduct complained of under s.31(1)(b) related to words spoken to S's mother in a separate incident. A substantial collection of racist posters, leaflets and literature had been found in J's bedroom on his arrest by the police. Police had been called to an incident where J alleged that S had assaulted him. It was then that S and his family had complained of J's behaviour, subject of the instant charges. J claimed that the allegations had been made up to divert attention from his complaint. An independent witness ('W') had called the police to the incident at which S was said to have assaulted J. J's original solicitors and counsel had W's contact details but had taken the decision not to contact her because they thought that to do so would have placed too much emphasis on that event and would have led the jury to query what J had done to provoke S into that action. The barrister representing J at trial took a different view and sought to call W for the defence. At the close of the defence case W had not been traced. It was subsequently found that she had been abroad at the time. Counsel had sought an adjournment, which had been refused. The defence wished to adduce W's evidence as fresh evidence on appeal. They submitted that it would have demonstrated a highly aggressive part played by S which would in turn have affected the jury's view S's credibility and the veracity of S's family.HELD: (1) The instant court had heard W's evidence de bene esse. She had been found to be an impressive, intelligent and credible witness, but had not seen how the fracas had started. W had described an attack by S upon J that had been more ferocious than anything admitted by S or his father or claimed by J or his mother. (2) However, the fundamental issue in the case was whether J had, on earlier occasions, behaved in a racist manner as alleged or whether he had been the innocent victim of a conspiracy by S and his family. The jury had been aware that S's complaints and those of his family had only been made after the assault incident. The defence had suggested at trial that S and his family's evidence had been fabricated in response to that complaint. (3) The level of violence from S at the final incident had at all times been available for J and his family to raise at trial. (4) Traditionally the court's approach had been not to admit evidence of a witness who had not been called at trial as a result of the advice or a decision of an appellant's counsel, unless the court considered that injustice had been caused by flagrantly incompetent behaviour on the part of the advocate concerned. See R v Roberts (1990) Crim LR 122 and R v Shields and Patrick (1977) Crim LR 281. The failure to call W as a witness was not a product of oversight but a reasoned decision which was open to competent counsel and solicitors to make. (5) W's evidence was irrelevant in any direct sense to the counts charged. The defence had relied upon the assault incident to attack the credibility of S and his family, however they had decided that the fact of the incident itself and the complaint to the police was sufficient evidence to put before the jury. Furthermore, J had not used the full gravity of that incident at trial. Nothing heard by the instant court led to the conclusion that W's evidence would have affected the jury's decision.Appeal dismissed.

[2002] EWCA Crim 175