Where a conviction for murder was referred by the Criminal Cases Review Commission in light of fresh evidence, the conviction was held to have been safe where the fresh evidence would not have affected the jury's decision to convict.Appeal against conviction by way of reference by the Criminal Cases Review Commission (CCRC) pursuant to s.9 Criminal Appeal Act 1995. The defendant, ('W'), was convicted of murder in 1977 at Worcester Crown Court before HH Judge Stephen Brown and a jury and sentenced to life imprisonment. W's previous application for leave to appeal conviction was turned down by the full court in 1979. The CCRC referred the conviction in August 2000. W died in October 2000 and approval was granted by the single judge for W's sister to continue with the appeal. The victim ('V') was in a relationship with W but he was not living with her at the time she was killed. The relationship was stormy and violent and in January 1977 W was made to leave when V alleged he had assaulted her. W was arrested and released on bail with conditions not to contact V and to live at his parents home. V was last seen alive by a witness at 9.35 pm on Friday 21 January. V's daughter went to her home on Sunday at 2.30 pm and discovered V lying dead on her bed. The cause of death was strangulation by ligature. V was interviewed several times and charged in April. When his car was searched V's diary was found along with a kitchen knife and a bent knitting needle. It was the prosecution's case that W had killed V between late Friday night and early Saturday morning when he had had no believable alibi. The case against W was circumstantial and the time of death was crucial. The Home Office pathologist gave evidence regarding the time of death and stated that the stab wounds had been caused by a sharp knife and a weapon which could have been a knitting needle. The basis of the reference was to seek leave to adduce fresh evidence from three witnesses. Firstly from S, a school girl at the time of the trial, who had told the police that she had seen V in the street at 2 pm on the Saturday. She later changed that statement, and gave evidence to the effect that it was Friday afternoon that she had seen V. She now wanted to give evidence that she had been tricked by the police into changing her statement. Secondly, from a lay witness, H, who made a hand written statement to the police, but could not remember ever signing a typewritten copy, stating that she saw V on Saturday afternoon on her way to work. She was not called at trial. Thirdly, evidence from a pathologist instructed by the CCRC who gave evidence that it was likely that death occurred late Friday night or early Saturday but it was hard to predict death with any certainty by taking body temperature as minor differences could upset the time of death. The puncture wounds could have been made by the sharp tip of a knife not just a knitting needle and the knife found was not strong enough to cause the wounds found. W submitted that it was a weak case to start with and in light of the new evidence the Court of Appeal should say the conviction was unsafe.HELD: (1) The evidence from S should not be admitted. It was not the sort of evidence that the Court of Appeal should admit as it was basically evidence that S had committed perjury at the first trial. To admit the evidence now, where senior police officers denied how S came to make the second statement, would leave the court with contradictory evidence. It was not evidence capable of belief. (2) The evidence of H was that she saw V on Saturday on her way to work. However, she also gave evidence that she worked at a bingo hall Monday to Friday and some Sundays, but not Saturdays. She also admitted that she did not see V's face. The pathologists, for the prosecution and the defence, and the evidence from the CCRC pathologist all agreed that it was only a remote possibility that V died after 6.00 am Saturday morning. Looking at H's evidence in light of that it was improbable she saw V when she said she did. (3) The court's approach to fresh evidence was set out in R v Pendleton (2001) 1 CAR 441 where it was held that fresh evidence fell into three categories ranging from evidence that could not be accepted or afford a ground of appeal to evidence that might conclusively lead to the appeal being allowed. Between those two lay the difficult cases. The Court of Appeal had an imperfect and incomplete picture of the circumstances that the jury had had before them to enable them to convict. (4) The view of the pathologist instructed by the CCRC was formed without the advantage of seeing the body as he had worked from photographs. W had instructed a pathologist at trial and he could have been called to rebut evidence given on the wounds by the Home Office pathologist. (5) The case was not a weak case, it was a strong circumstantial case. The fresh evidence would not have affected the jury's decision to convict W. It would have concluded that H was mistaken and the evidence of the pathologist added little. This country prided itself on trial by jury and verdicts should not be set aside lightly. The conviction was safe.Appeal dismissed.

[2003] EWCA Crim 1008

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