Mackin, R v [2007] EWCA Crim 1844

Case No 2004/5575/C2[2007] EWCA Crim 1844
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 29 June 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE STANLEY BURNTON
MR JUSTICE WILKIE
Between
R E G I N ACrown-v-
Between
PAUL JAMES MACKIN
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M BIRNBAUM QC appeared for APPELLANTMR R BROWN appeared for CROWN
J U D G M E N T

LORD JUSTICE GAGE:

This

[1]is a reference by the Criminal Cases Review Commission in respect of a conviction at the Manchester Crown Court on 14th June 1999. On that date the appellant, following a re-trial, was convicted of two counts of wounding with intent to do grievous bodily harm (counts 1 and 2) and three counts of conspiracy to supply drugs: cannabis (count 3), cocaine (count 4) and heroin (count 5). The appellant was sentenced to concurrent terms of imprisonment of seven years for counts 1 and 2, 12 months for count 3, three years for count 4 and a consecutive term of three years for count 5: a total of 10 years' imprisonment. On 31st May 2002 this court refused the appellant's renewed applications for an extension of time, leave to appeal conviction and for a representation order.[2]The appellant was tried together with a co-accused who was jointly charged with the appellant and convicted of all five counts on the indictment. The co-accused, Alan Colin Simpson, received the same sentences as the appellant.[3]At trial the prosecution case was simple. It alleged that some time between 11.20 pm and 11.40 pm on Sunday 13th September 1998 Jason Atherton and Rita Curless were attacked as they lay in bed in their house at 18 Vincent Way, Marsh Green, Wigan. These two victims suffered serious stab wounds. They claimed that they had been attacked by two masked men whom Atherton identified as the appellant and Simpson. The case for the appellant and Simpson was that neither had entered 18 Vincent Way and neither had attacked Atherton and Curless. This Reference and appeal arises out of fresh evidence which it is alleged demonstrates that the appellant was not one of those who attacked the two victims on 13th September 1998. The central feature of the fresh evidence is a confession by Simpson that he was one of the men who attacked Atherton and Curless but the other was not the appellant but was a man named Barry Chadwick. The evidence at trial[4]Atherton confessed in evidence to being a drug dealer. He said that his suppliers were Simpson and the appellant. In due course he began to get into debt to his suppliers and was persuaded to deal in class A drugs. He said that Simpson and the appellant began to chase him for money which he owed to them arising out of their supply to him of drugs.[5]There was evidence that on the evening of 13th September 1998 the appellant and Simpson, together with their girlfriends Mandy Henderson and Donna Jones, and other family and friends, were all drinking in the Clubhouse Public House. The Clubhouse was approximately 10 minutes walk from Marsh Green, Wigan, the area where the appellant, Simpson and Atherton all lived. At 10.30 pm last orders were called in the pub but people remained there. At approximately 11.20 pm a fire alarm went off in the pub. The licensee, Margaret Molyneux, asked everyone to leave. Both Simpson and the appellant left at or about that time. Simpson's case was that he had left a little earlier than the appellant.[6]Atherton's evidence was that he and Curless were in bed in their home that night when he was woken up by two masked men coming into the room. When he woke up one of the men was on top of him. He grabbed at that man and pulled up his mask. He said that he recognised the man as the appellant. He fell onto the floor with the appellant and felt slaps all over his body being delivered by the appellant and another man. Curless intervened and was also attacked. The two men then left. Atherton went to the window and saw them walking along the street. One of the men took off his mask and Atherton was able to recognise him as Simpson. He said he was able to identify him by his build, his hair and by the fact that he walked with a limp.[7]Atherton said that he did not tell Curless that he recognised the attackers. He initially decided that he would not reveal their identities. He spoke to a neighbour and his aunt immediately after the attack and did not disclose the names of his attackers either to them or to staff at the hospital to which he was taken. The following day he was seen by the police but did not tell them that the appellant was responsible. It was only when he made a witness statement on the day after he had first seen the police that he named the appellant.[8]Curless said that she knew that Atherton was selling drugs and as a result he left their home. However he returned claiming he had stopped drug dealing. She said he appeared to be frightened and to be in hiding. At one stage she said she had dated Simpson but she did not have a sexual relationship with him.[9]On 13th September 1998 she said she was woken by a banging noise and by shouts from Atherton. Atherton was on the floor of the bedroom being attacked by two men. She jumped on top of him to protect him and felt blows land on her. The men left and she crawled onto the landing while Atherton called for help from the window. Subsequently, she told the police that the men had worn light-coloured plastic masks. She agreed in evidence that this was incorrect and could not remember why she had said it. On the night of the attack she told the police:
"I will tell you the Mackins were involved."
However, at no time did she name the appellant in particular or claim to have recognised her attackers.[10]A number of other witnesses gave evidence at the trial. Margaret Molyneux, the licensee of the public house said that the appellant and Simpson had been drinking on the evening of 13th September 1998. She described what the appellant was wearing and said that it was only at approximately 11.20 pm when the fire alarm went off that people began to leave the public house. A next door neighbour, Tracy Barker, described being disturbed at about 11.20 or 11.25 pm. She saw two men outside her house who had their backs to her and were walking away. She said one was wearing a dark Adidas top with a hood and a band on the arm. The other was wearing a light-coloured top with the hood up. She said they both walked normally and a little later Atherton emerged from his house and spoke to her husband. She telephoned for an ambulance, the call being logged at 11.41 pm.[11]Another near neighbour, Michael Dean, described hearing shouting on that evening. He saw two men in the street. One was wearing dark clothing and the other was walking in an abnormal fashion.[12]At interview the appellant denied that he had been involved in drug dealing with Atherton and denied that he had carried out the attack on him and Curless. In evidence he said that he had gone out at about 3.00 pm on 13th September 1998 with members of his family. At about 5.00 pm they moved to the Clubhouse Public House where he continued to drink throughout the evening. His girlfriend, Mandy Henderson, was with him. He said he became drunk and at some stage had an argument with Henderson. He described leaving the public house after the fire alarm had gone off. He left with Henderson and a girl called Clare Bird. The latter was the girlfriend of Barry Chadwick. He described walking home to 38 Sunderland Place where he lived. Clare Bird left him and Henderson at a point where her way home diverged from his. He said that about half an hour after he arrived home he and Henderson went to bed.[13]He was cross-examined by counsel for Simpson who suggested to him that Simpson had left the Clubhouse about five minutes before the appellant left. It was suggested to him by counsel for the prosecution that at interview he had said he left the Clubhouse at the same time as Simpson. It was suggested to him that he was lying in his denials of drug dealing with Atherton and lying when he said he had not attacked him.[14]Simpson gave evidence to the effect that he had nothing to do with the attack. He accepted that he had known the appellant for approximately 13 years. He also knew Atherton but did not really mix with him. He described injuring his leg in an accident in 1997 and said he was using crutches at the time of the offences. He said that on 13th September 1998 he went to the Clubhouse with his girlfriend Donna Jones and her cousin. He had not gone there to meet the appellant. However, the two groups spent the evening together. He said that he and Jones left within two minutes of the fire alarm going off. The appellant and his girlfriend were still in the Clubhouse when he left. Simpson said that he did not know what time the appellant left and had learnt of the incident the following day. He said that he spent the night at his home, 33 Kit Green Road, with his girlfriend.[15]Clare Bird and Donna Jones gave evidence in support of the appellant and Simpson. Mandy Henderson had provided a written witness statement supporting the appellant's version of events on the night of 13th September 1998. However, by the time of the trial she had gone to Spain and with the leave of the judge her witness statement was read to the jury.[16]A number of other witnesses were called on behalf of the appellant and Simpson. They gave evidence which was peripheral to the main issue in the case. The CCRC's involvement[17]In April 2002 the appellant requested the CCRC to review his case. The first application preceded the refusal by the full court of his renewed application for leave. In June 2002 the appellant made a second application to the CCRC. From that time on the CCRC made its enquiries which have resulted in this Reference. Mr Birnbaum QC, who represents the appellant before us, makes the point that a number of matters raised in the Reference resulted from their enquiries and not from complaints or information received from the appellant. In particular, he submits that the CCRC obtained from the appellant's former barrister the allegation made by the appellant that the other man involved with Simpson in the attack was Chadwick. Mr Birnbaum submits that this supports his submission that the appellant had not persuaded others to give evidence in his favour. In other words, there is positive evidence that there was no collusion between the appellant and witnesses whom we have heard.[18]We do not regard this as a significant point. Whether the appellant's trial advocate first raised this point or not, and we accept that he did, it was clearly something which the applicant was going to mention when he was seen by the CCRC.[19]In the course of a thorough investigation the CCRC interviewed the appellant and a number of witnesses, all of whom had given evidence at the trial, and obtained information from Jason Atherton (the victim). We shall come to this evidence shortly. In the result, the CCRC concluded that there was no real prospect that the appellant's conviction in respect of drug dealing could be successfully challenged, but it did decide to refer the section 18 convictions to this court. Accordingly, following several directions hearings, this Reference came before this court on the basis of fresh evidence.[20]The fresh evidence which we have heard consisted of statements and oral evidence from Alan Simpson (the co-defendant), Clare Bird (at the time of the offence and until he died the girlfriend of Barry Chadwick), Donna Jones (at the time of the offences the girlfriend of Alan Simpson), Amanda Henderson (the applicant's girlfriend at the time of the offence) and Jason Atherton (the victim). We shall summarise the evidence of each of these witnesses briefly. Alan Simpson[21]He had been released from prison having served his sentence. He accepted that he had been involved in supplying drugs. He agreed that Mackin was his closest friend and partner in drug dealing. He said that each of them had their own customers to whom they supplied drugs. In addition some of those to whom they supplied drugs were customers of both of them. Atherton came into the category of one of his customers. He said he had supplied Atherton with drugs for a period of approximately three months before the incident on 13th September 1998. Atherton became increasingly in debt to him which caused Simpson in turn to run into debt with his suppliers. He could not afford to let the debt run on.[22]On 13th September 1998 with his girlfriend Donna Jones he went to the Clubhouse Public House. He said that Chadwick was present and the two of them got into conversation. Chadwick told him that Atherton owed him money. The two of them then agreed to visit Atherton and threaten him. He said this occurred when the two of them just happened on that evening to get into conversation. He agreed that Chadwick was not a particular friend of his but was a "hard man" whom he knew from living on the estate.[23]He described leaving the Clubhouse with Donna Jones and being driven by Chadwick to his mother's house where Donna Jones was dropped off. He and Chadwick then drove to Chadwick's flat where they picked up two balaclava helmets and armed themselves with knives. They then went to 18 Vincent Road and attacked Atherton and Curless. Simpson said that neither of them spoke to Atherton or Curless. He did not see Atherton lift up Chadwick's Balaclava helmet. He agreed that the incident went too far and as a result he decided to leave. He was followed by Chadwick. The two of them walked to Chadwick's car which was parked in Viscount Road. Chadwick drove to his flat, stopping at the point where Comet Road met Kit Green Road. At that point Simpson got out of the car and Chadwick made it clear to him that he (Simpson) must never mention Chadwick's part in the incident. Simpson said he telephoned for a taxi which took him the distance of approximately 500 metres to his home at 33 Kit Green Road. The following morning at about 9 o'clock he went round to 38 Sunderland Place and spoke to the appellant. The appellant agreed to his request to provide him with an alibi for the previous night. Donna Jones[24]Donna Jones gave evidence that was completely contrary to her evidence at trial. At trial she had stated that Simpson and she spent the night together at his mother's home, 33 Kit Green Road. She said that she was with Simpson the whole night. She told us that she left the Clubhouse to go to 33 Kit Green Road with Simpson and Chadwick. Chadwick drove her and Simpson to Simpson's home where she was dropped off. She went into the house and went straight to bed. She got up at 4.30 am on the following morning to be at work by 5 o'clock. When she got up, Simpson was in bed with her. At some stage during the night he had come into the bedroom and was wearing the clothes which he had worn that evening, save that his t-shirt was missing.[25]She said that her witness statement given for the purposes of the trial and her evidence at trial were not the truth. She was only 18 at the time and Simpson had told her what to say in evidence. She said she regretted telling lies at the trial. She had been given immunity from prosecution for perjury in respect of her evidence to the jury. She said that her account given to this court was true and that she was giving evidence because it was "the right thing to do". Clare Bird[26]Clare Bird gave much the same evidence as she gave to the court at trial. She said that she left the Clubhouse after the fire alarm had gone off and walked down Marsh Green Road with the appellant and Mandy Henderson. She did not know what had happened to her boyfriend Barry Chadwick, nor where he had gone. She had not been drinking that night as she was six months' pregnant. At the turning to Wessex Road she left the appellant and Henderson. She walked on down the road to Chadwick's flat in Bombay Road. When she got to the flat she did not see Chadwick. She went to bed and when she woke up in the morning Chadwick was in bed with her.[27]The only new evidence which she gave related to how she got to and from the Clubhouse. She said that on the evening of 13th September 1998 she and Chadwick walked to the Clubhouse. She said she was positive that they did not go by car. She did not know where Chadwick's car was but she believed that probably it was outside the house where they lived. She said that Chadwick never spoke to her about what he had been doing that night and there was nothing to suggest that he had been involved in any violence. Amanda Henderson.[28]Amanda, or Mandy, Henderson gave evidence in accordance with her witness statement dated 23rd September 1998. In short she said she had been with the appellant for the whole period following both of them leaving the Clubhouse with Clare Bird. At the Clubhouse she spent most of the time with the other women who were there. The men were in the front room. She described having an argument with the appellant but said they had made it up before they left the Clubhouse. They left shortly after the fire alarm went off. When they got to 38 Sunderland Place, Mackin's home, they had a few drinks and another row about an ex-boyfriend of hers. They went to bed about half an hour after arriving home. She said the appellant was with her for the whole night and she was unaware of Simpson coming to the house on the following morning.[29]She was asked why she did not give evidence at trial. She said she was in Spain working as a dancer in a bar in June 1998. She was aware that the trial was to take place but she did not know the date of it. She denied that she had deliberately absented herself from the country in order to avoid giving evidence. She agreed that she was in contact with her mother by telephone. She said that she did not know where she was going to live before she arrived in Spain. She had not told the appellant's solicitors when and where she was going. Jason Atherton[30]The final witness who was called, as the court's witness, was Jason Atherton. The substance of his evidence was that he now knew that his identification of the appellant as one of those who attacked him and Curless was mistaken. He said that at the time he gave his evidence he was sure that the man whose balaclava he had raised to the level of the middle of the man's forehead was the appellant. However, subsequently he had come to know that he had made a mistake. His explanation for his knowledge that he had been mistaken was that he had been told by others that the man who attacked him with Simpson was Chadwick. He said that he had heard rumours it was Chadwick, but some six to eight months before he was sent to prison for offences of supplying drugs he was told by Neil Woods that Chadwick had admitted taking part in the attack. Atherton explained that Woods came to see him shortly after he (Woods) had been released from a term of imprisonment. Having been told this by Woods, Atherton said he rang up his brother who confirmed that this was the case. When asked how his brother had known, he said:
"Because he knows a lot of people."
He denied that he had formed this view as a result of anything he had been told by Mackin. He said that Mackin did not write to him until December 2005.[31]In answer to questions asked by Mr Birnbaum, he agreed that he knew Chadwick. He said he was not a friend but he knew what he looked like. He agreed that he had confused Chadwick with Mackin as the person who had attacked him. It was suggested to him that he had been influenced by the remark made by Curless shortly after the attack, namely the remark that it was the Mackins who had attacked them. At first he denied that this was so and denied that he had heard this remark. However, on being shown the correspondence from him to Mackin in which he made reference to this remark he accepted that it must have been made. He did not think it had influenced him in any way.[32]There is no dispute about the legal principles which we should apply. The statutory provisions are contained in section 23 of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995. They are as follows: "(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice- ... (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -(a) whether the evidence appears to the Court to be capable of belief;(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings." ][33]As can be seen from our summary of the evidence, which we have heard de bene esse, the appellant is relying on evidence from his co-accused Alan Simpson which represents a complete change from his evidence at trial. At the trial Simpson denied the offence. Before us he accepts that he was one of the two men who attacked Atherton and Curless. He asserts that the other man was Chadwick and not the appellant. Mr Birnbaum QC properly and realistically accepts that what this court has said in a series of cases concerning fresh evidence, namely when fresh evidence consists of one co-defendant exonerating another defendant post-trial, the court will be very cautious before receiving such evidence. In R v Ditch (1969) 53 Cr.App.R 627 the court said:
" ... It is obvious from the reasons given in Rowland (supra) [1994] 7 KB 460, which I need not repeat, that in the ordinary course of events this court will be very careful before it will admit a confession of guilt by one of two people who have been convicted by a jury of a joint offence. It would be so easy for criminals to seek to share out the responsibility so as to get one of them off. On the other hand, there is nothing in the decided cases which in any way affects this court in receiving such evidence in a proper case."
More recently, in R v Horner [2004] EWCA Crim. 560, this court has said at paragraph 18:
"As a general proposition if a friend or relative comes forward after a trial and conviction of the offence and claims to have committed the offence having stood by and allowed the trial to go ahead without imparting that information previously, the appellant in such a case would have a very high hurdle to surmount in persuading the Court that the new witness is giving evidence that is credible."
Finally, we must mention the decision of the Privy Council in Dial v The State of Trinidad and Tobago [2005] 1 WLR 1660. In that case, Lord Brown of Heaton-under-Heywood in a speech giving with which the of the majority agreed said, at paragraph 31: "In the board's view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view 'by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict': R v Pendleton [2002] 1 All ER 524 at [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP [1973] 3 All ER 762, [1974] AC 878 at 906, and affirmed by the House in R v Pendleton: 'While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe].' 32. That is the principle correctly and consistently applied nowadays by the criminal division of the Court of Appeal in England - see, for example, R v Hakala [2002] EWCA Crim. 730 ... R v Ishtiaq Ahmed [2002] EWCA Crim. 2781 ... It was neatly expressed by Judge LJ in R v Hakala, at [11] thus: 'However the safety of the appellant's conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe'." ][34]Mr Birnbaum in his skeleton arguments and in oral submissions summarises the case for the appellant under four main headings. First, he submits that on the evidence it is inherently unlikely that the appellant was on that night involved in the attack on Atherton and Curless. Among the submissions upon which he relies in respect of the evidence is the submission that the appellant left the Clubhouse to walk home with Henderson and Bird having bought a carry-out of beer. He submits that does not have the hallmark of someone who was going on an expedition like this. Secondly, his submits there are what he calls frailties in the identification evidence. By this he means that Atherton's identification of the appellant was made in circumstances which render that identification suspect or at least weak. It was, he submits, a fleeting glance identification at night in the dark by someone who had just woken up and been surprised by the two assailants entering the bedroom. He also submits that the description by Atherton of the way in which he pulled up the balaclava was unlikely. Thirdly, he submits that there are now doubts about Atherton's credibility in view of his evidence to this court. Fourthly, he relies heavily on the evidence to this court of the witnesses Simpson, Jones, Bird and Henderson. His principal general submission on this evidence is that there is no evidence of collusion between the witnesses and Mackin. In the circumstances it would be an incredible coincidence if for no apparent motive all three were now prepared to give perjured evidence to support the appellant's case.[35]Mr Brown submits that the fresh evidence is firstly not truly new evidence; secondly, none of the witnesses are credible; thirdly, although there may be no direct evidence of collusion between the witnesses it would not be safe to assume that there was no contact or communication between them and Mackin. He points to the evidence of correspondence between Mackin and three of the witnesses.[36]We have given very careful consideration to the submissions made on behalf of both the appellant and the respondent. So far as Mr Birnbaum's first two main submissions are concerned, these raise arguments which do not involve any new evidence. They are arguments which undoubtedly must have been made by counsel in final speeches to the jury. They were clearly rejected by the jury. We accept of course that they may have some impact in this appeal depending upon our findings in respect of the third and fourth main submissions.[37]We turn to the third main submission made by Mr Birnbaum which concerns the evidence of Jason Atherton. Despite Mr Birnbaum's submission that his identification of the appellant was weak and that he had now genuinely recanted by saying he had been mistaken, we find Atherton an unsatisfactory witness. He conceded that he had known the appellant for many years having grown up with him. He had seen him frequently before the incident in September 1998. He knew of Chadwick and had been involved in an incident with him not long before the September 1998 incident. But he did not know him as well as he knew the appellant. He said that he had not wanted to name his attackers but had been persuaded to do so to protect his girlfriend. In the circumstances, he would obviously have wanted to name the right men. In one of his earlier letters to Mackin following the incident he described the man who attacked him as having a different build to Chadwick. The evidence shows that Chadwick was six foot tall of medium build and that Mackin was five foot eight inches tall and weighing 15 stone. One of the next door neighbours who saw the two men who had left 18 Vincent Road on the evening of the incident, without the benefit of her spectacles, described them as of similar height and build. Mr Birnbaum relies on the comment in the letter as evidence that Atherton was not being pressured into changing his evidence. In subsequent letters to Mackin relied on by Mr Birnbaum, Atherton described Curless telling the police it was the Mackins who had attacked them. At first he denied hearing this. When reminded of what he had said in the letters he agreed that he had heard the remark, but thought that it had not influenced him in his identification. However, we gained the clear impression from Atherton's evidence and from the tone of some of his letters to Mackin that after he arrived in prison he had been influenced to change his evidence given at trial. A sentence in one letter, after telling Mackin what he would say to his solicitors, contained the following:
"In that statement I will say that I believe I mistakenly identified you as my attacker and now believe that it was Barry Chadwick and also that I must have mistaken your friendship with Simmy as a partnership and my dealings was always done with Simmy and none actually done with you. Is that okay?"
It is significant that not only is Atherton now seeking to exculpate the appellant from being one of his attackers, but also to exculpate him from drug dealing. That evidence is quite inconsistent with his witness statement in which he described paying Simpson and Mackin for drugs and seeing them once or twice a week "when I would get gear". He also described how Mackin in a telephone conversation accused him of stealing some of his gear. This is quite inconsistent with Atherton's evidence to us that he assumed Mackin was Simpson's partner in the drug dealing. It is also an assertion which is inconsistent with evidence that Simpson gave that Mackin was involved with him in drug dealing, albeit they had their own customers.[38]Put shortly, we have no hesitation in rejecting Atherton's evidence before us and his attempts to exculpate the appellant. We have no doubt that at trial he was telling the truth and his recent evidence that he believes he was mistaken is not genuine. Of course we accept that whether or not his genuine belief that his identification was correct was a matter for the jury to decide. We add that he had no sensible explanation for retracting his evidence at trial as to Mackin's part in the drug dealing with him.[39]We propose now to turn to the evidence of each of the other witnesses to whom Mr Birnbaum referred in his fourth main submission. As to Simpson, we regard him also as a very unsatisfactory witness. We bear in mind the necessary caution which we need to exercise in relation to evidence given by someone who by his own admission not only gave perjured evidence at his trial but in doing so (if his evidence is now to be believed) saw his closest friend convicted of an offence which he knew he did not commit. It was not until some years later that he confessed to his part in the offence and sought to exonerate the appellant. By his own admission even then he did not tell the full truth to the authorities. Later still, when Chadwick was dead and could not refute the allegations made against him, Simpson apparently made a completely full confession to what had occurred on 13th September 1998 at 18 Vincent Road. For these reasons his credibility starts at a very low level.[40]There are, however, a number of other reasons for looking sceptically at his version of events as it applies to the appellant. His account of how he arranged to carry out the attack with Chadwick is, in our judgment, inherently unlikely. He did not know Chadwick well. According to him now, the attack resulted from a casual chance conversation with Chadwick that night in the Clubhouse. They then drove in Chadwick's car first to Simpson's mother's home and then to Chadwick's flat to collect balaclavas and knives. Clare Bird, whose evidence both sides accept as truthful, did not see any sign of either of them in the flat when she returned to it. Significantly she said that she and Chadwick walked from the flat that night to the Clubhouse. She thought Chadwick's car was parked outside the flat.[41]We regard it as inherently unlikely that Simpson would ask Chadwick to help him to threaten Atherton rather than ask the appellant, his closest friend and partner, or at least speak to the appellant about it. We are also of the opinion that it defies belief that Simpson would approach the appellant on the following morning to give him an alibi without first speaking to Chadwick. Despite his evidence of threats made by Chadwick to him about disclosing Chadwick's part in this incident, we do not accept that if Chadwick had been involved Simpson would not at some stage have spoken to him about it. Simpson says he did not. Finally we find his description of being driven by Chadwick on a circuitous route away from 18 Vincent Road as improbable. The car was parked only about 60 metres from Simpson's mother's home. It makes little sense for him to be driven some distance away from where the car was parked and to get a taxi back to 33 Kit Green, a distance of some 500 metres.[42]In the circumstances, we reject Simpson's evidence in so far as he says that it was Chadwick who took part in the attack on Atherton and Curless. Of course, that does not mean of itself that the appellant was the second man involved in the attack. However, it does substantially undermine the appellant's case in this appeal.[43]Donna Jones. Mr Birnbaum relies heavily on her evidence. He submits that the strongest point in favour of this appeal is her evidence. He submits that there can be no possible motive for her after all these years, having admitted perjuring herself at the trial doing so again in this court. This is a powerful submission but in our view her evidence had to be seen in the light of our conclusions on the evidence as a whole. We have already given our reasons for not accepting either the evidence to this court of Atherton or Simpson. It follows that we do not accept that Simpson was being truthful about Chadwick's part in the attack. As at trial, Jones' evidence closely follows that of Simpson. She now says, as he says, that she was driven back to 33 Kit Green Road by Chadwick. This could of course be taken as supporting Simpson's evidence that Chadwick took part in the attack, but in our judgment it is not sufficient to overcome the inherent unlikelihood of Simpson recruiting Chadwick for this purpose. Her evidence must also be seen in the light of Bird's evidence that she and Chadwick walked to the Clubhouse.[44]We accept, as we have been informed, that since the trial Jones has distanced herself from the Marsh Green area and started a new life. She does however have a sister still living in the area. We were told that she was very distressed before giving evidence and wanted to ensure that she did not have contact with Simpson. In our judgment this indicates to us that she was in some fear. On many occasions in her evidence she said she was unable to remember some events about which she was asked. She could not, for instance, remember when it was that Simpson asked her to give him an alibi. Above all, her credibility suffers from the not inconsiderable handicap that at trial she said that although she loved Simpson she would not lie for him. However, the fact is that she did lie for him. In our judgment, for whatever reason, she has not told this court the truth.[45]Clare Bird. As we have already pointed out, both sides accept that she told the truth at trial and to this court. She said that when she left the Clubhouse with Mackin and Henderson she assumed Chadwick was outside and that they would meet up. Because he was not there she walked with Mackin and Henderson to the junction of Wessex Road, a short distance from the Clubhouse, where they parted. She said Henderson asked her to stay for a drink but she refused. We have already referred to the fact that she said that she and Chadwick had walked to the Clubhouse, something which is inconsistent with Simpson and Jones leaving in Chadwick's car. She also said that Chadwick never spoke to her about what happened on that evening.[46]Mr Brown, in our view, makes a telling point when he submits that if Chadwick had been involved in the attack it was to be expected that he would at some time discuss with her the question of her providing an alibi for him. She said he did not.[47]Amanda Henderson. She was a confident and articulate witness. Her evidence followed closely her witness statement made on 23rd September 1998. She was asked to explain why she had not given evidence at trial. She said she had got a job in Spain for six months. She had gone to Spain in May for one week but having been offered a job as a dancer in a club she came back to England for one week before returning to Spain to work. She did not know where she was going to be living until she got back to Spain. She said although she and Mackin had split up, she wanted to give evidence and would have done so had she been in this country. She said that after the incident in September 1998 she went to see Jones. She asked Jones if Simpson had been at home on the night of the attack. Jones was crying and said she could not remember. In evidence to us Jones said she had no recollection of this incident. However Mr Birnbaum points to a statement made by Jones' mother who had some recollection of an occasion when Henderson asked Jones to tell the truth.[48]The difficulty that we have with Henderson's evidence concerns her absence from England at the time of the trial. Although she told us she wanted to give evidence, she said to the CCRC in April 2003 that she was scared about giving evidence. In a written statement she said in answer to the question why she did not give evidence:
"There were two reasons: Firstly, Paul and I had rowed and were no longer together by the time his trial came up. Secondly, and more importantly, I knew that even though I was telling the truth, I would not be believed because I was Paul's girlfriend and people would say that I was giving a false account because of that. I believed that I would be given a hard time in the witness box and I was scared of that. I didn't want to go."
She said in evidence that she did not know the date of the trial. She did not inform the appellant that she was going to Spain, nor his solicitors, nor did she inform them where she was. However, when she arrived in Spain she telephoned her mother. She had given her mother's address to the police when she made her witness statement.[49]In cross-examination of him at trial, the appellant told counsel for the prosecution that Henderson was still his girlfriend. She did know the date of the trial and she was told to come to court. He told the judge, when asked if he knew her whereabouts, that she was in Salou. We find it very difficult to understand why the attendance of this potentially crucial witness was not secured for the trial. Both the appellant and Henderson must have appreciated the importance of her evidence if it was true. Yet we have been given no explanation for her not giving evidence other than that she was in Spain. We regret to say that we find Henderson's assertion that she wanted to give evidence completely at variance with the facts. We do not accept that she wanted to give evidence. In our judgment the only credible explanation for her going to Spain shortly before the trial (the date of which if the appellant's evidence was correct she knew) is that she did not want to give evidence. Further, her explanation to the CCRC that her reluctance to give evidence was due to the fact that she felt she would not be believed and would be given a "hard time in the witness box" is difficult to understand. We are reluctantly driven to the conclusion that the reason she did not want to give evidence was because she did not want to give false evidence. This conclusion obviously affects our assessment of her evidence to us.[50]Having set out our assessment of the evidence of the witnesses whom we have heard, it is necessary for us to put this evidence in the context of the appellant's evidence at trial. The transcript of his evidence is available and we have carefully read it. We recognise that it is not always easy to get the full flavour of the evidence of a witness by reading a transcript of his or her evidence. Allowing for this, we have nevertheless reached the conclusion that to say the least he was not a straightforward witness. In evidence-in-chief he said that he, Henderson and Bird left after everyone else. In cross-examination by counsel for Simpson he said that Simpson and Jones left a couple of minutes, five minutes, before. He was asked by counsel for the prosecution why he told the police at interview that he walked with Simpson and Jones as far as Wessex Road. It was suggested to him that he had lied to the police. This topic, as it now appears, is not unimportant because it is now suggested on his behalf that all the witnesses agreed that the two groups left separately. In answer to questions to prosecuting counsel, he sought to say that Simpson and Jones were just ahead of him. Of more importance was his evidence about visits to Atherton's home. He was asked about what he was doing at Atherton's home when he visited it with Simpson two months before this incident. He said several times he could not remember. Despite telling the police that he had been there with Simpson, he said he could not remember whom he was with. He was pressed to give an answer to questions about that visit and why in one interview he had referred to a grievance existing between Simpson and Atherton. His answers appear from the transcript to be at best evasive. In the course of those answers he denied being a drug dealer. Simpson has told this court that Mackin was a drug dealer, although Atherton was not one of his customers. Atherton told the jury that the debt he owed in respect of drugs was to both Simpson and the appellant. He also told the jury that Simpson and Mackin had asked him to sell crack cocaine and that Mackin had accused him of "stealing gear".[51]In the light of our conclusions about Atherton's evidence to us and what Simpson told us about Mackin's drug dealings, we are quite confident that Mackin's evasive replies on this topic at trial were lies designed to cover up his drug dealing. Unsurprisingly, he was convicted of the three counts of conspiracy to supply drugs.[52]This conclusion reinforces our assessment of the fresh evidence which we have heard. So far from Atherton's identification of the appellant as one of his assailants being weak, once one knows, as we do, but the jury did not, that Simpson admits that he was correctly identified by Atherton and we have concluded that the appellant was involved in drug dealing with Atherton, it becomes far more likely that the second man was the appellant and, against the background of the drug dealing with Atherton, inherently unlikely that Chadwick was the second man.[53]Taking all these factors into account and judging the fresh evidence in its totality in the context of the whole case, we are quite satisfied that the fresh evidence is not credible and does not afford the appellant any ground of appeal. Accordingly this appeal must be dismissed.[54]MR BIRNBAUM: May I mention briefly two matters? First of all, I thought with respect that you made a relatively small mistake in relation to Mr Atherton. I think you said that he agreed in cross-examination with me that he had confused Chadwick with Mackin. What I think he said was that in the dark it was possible to confuse them. It is a difference of emphasis.[55]The other matter, perhaps more importantly, may I ask when will a copy, either electronic or a hard copy, be available of your judgment?

LORD JUSTICE GAGE: I do not know. When the shorthand writer has transcribed it and it has been approved.

[57]MR BIRNBAUM: I know I and the commission will be interested obviously. Hopefully within a relatively short period?

LORD JUSTICE GAGE: Yes, it normally is, the shorthand writer is very good about it. It is a question of getting it to me and my doing the corrections. Thank you both very much.

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