Yam v R. [2017] EWCA Crim 1414

[2017] EWCA Crim 1414

Case No 201601968C3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CENTRAL CRIMINAL COURT

OUSELEY J

T20067402

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/09/2017

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

MR JUSTICE SWEENEY

MRS JUSTICE MAY DBE

Between

WANG YAMAppellant

REGINARespondent

Peter Wilcock QC for Appellant

Duncan Atkinson QC (instructed by CPS) for Respondent

Hearing Hearing dates: 18 July 2017

Judgment Approved

Lord Thomas of Cwmgiedd, Mr Justice Sweeney and Mrs Justice May:

This is the judgment of the Court, to which we have all contributed.

Introduction

[1]In early 2008 the Appellant, Wang Yam, who is now aged 55, was tried before Ouseley J in the Central Criminal Court on an Indictment containing six Counts. Count 1 charged the murder, in May 2006, of Allan Chappelow (“the deceased”) – an 86-year-old reclusive writer, who lived alone in Hampstead in North London. Counts 2 and 3 were alternative charges of burglary and theft relating to the stealing of four cheques, mail and a mobile telephone from the deceased’s home. Count 4 charged, in the further alternative, handling the cheques, the mail and the mobile telephone. Count 5 charged obtaining a money transfer in the sum of £20,000 by deception, and Count 6 charged theft of £20.

[2]On 31 March 2008, the Appellant was convicted on Counts 5 and 6. The following day he was convicted on Count 4, but the jury was unable to reach verdicts on Counts 1-3.

[3]On 16 January 2009, at the conclusion of a retrial, again in the Central Criminal Court, and before the same judge, the Appellant was convicted of murder (Count 1) and burglary (Count 2). On 29 January 2009, on Count 1, he was sentenced to life imprisonment, with a minimum term of 20 years, less 852 days spent on remand. On each of Counts 2, 4 and 5 he was sentenced to 54 months’ imprisonment concurrent, and on Count 6 to one month’s imprisonment concurrent.

[4]On 5 October 2010, this Court, differently constituted, quashed the conviction in the first trial for handling stolen goods (Count 4), on the basis that it was inconsistent with the failure, in that trial, to acquit on burglary and theft (Counts 2 & 3); but dismissed an appeal, which had been advanced on various Grounds, in relation to the conviction in the second trial for murder (Count 1), upon the ultimate basis that the Court entertained no doubts about the safety of that conviction – see

[2010] EWCA Crim 2072

[5]The Appellant now appeals again against his conviction for murder upon a Reference dated 26 April 2016 by the Criminal Cases Review Commission (“CCRC”) under section 9 of the Criminal Appeal Act 1995, on the basis that: i) The Police failure to reveal to the CPS an incident, reported in February 2007 by Mr Jonathan Bean, and potentially similar to the case alleged against the Appellant, led to material non-disclosure and denied the Defence the opportunity to present an alternative suspect for the jury’s consideration. ii) Taken along with the lack of any evidence directly connecting the Appellant with the murder of the deceased, there was a real possibility that the conviction would be considered unsafe.

[6]At a Directions hearing on 15 March 2017, the Appellant notified the Court of his intention to seek permission to rely not only on the fresh evidence of Mr Bean, but also on the fresh evidence of two further witnesses, Peter Hall and Michael Dunne - who, like Mr Bean, had come forward in response to continued media coverage about the case but not, in each of their cases, in time for their evidence to be considered by the CCRC.

[7]During the ultimate hearing of the appeal, we heard evidence de bene esse from all three witnesses.

Background

[8]As we have touched on above, the deceased was a reclusive writer who was aged 86 when he was murdered. He had lived alone for many years in a large house at 9 Downshire Hill in Hampstead. He had, in the past, been a motorcycle enthusiast. However, the evidence from his neighbours was that, by 2006, he was very deaf, very frail, pale and quite lame – walking with a stick. He would, nevertheless, make a daily trip to the library to read the newspaper. When out, and whatever the weather, he would always wear a very old long black leather motorcycle coat with string for a belt. His immediate neighbour, Lady Listowel, said that they would chat sometimes, that he was very intelligent, and that once he did get talking he could not stop.

[9]By 2006, the house at 9 Downshire Hill had become very dilapidated, and its front garden was very overgrown. The interior was squalid – with the deceased apparently sleeping in a sleeping bag in a room on the second floor (later designated ‘Room 16’). He did not allow people into the house, save for Tom Carr, his handyman since 2001. Mr Carr’s evidence was that, in 2004, the deceased had also allowed into the house a man who was helping him (Mr Carr), and that neither of them smoked (which was of some significance given later DNA findings). Mr Carr said that his last visit to the house had been at Christmas 2005, when he had endeavoured to deliver a present.

[10]Because of the obvious dilapidation of the house, it was not uncommon for neighbours to find people in the overgrown front garden who thought that the house was unoccupied, and for people to make enquiries of Camden Council (to which the deceased paid his Council Tax monthly in cash) expressing an interest in acquiring the house.

[11]The deceased had a Motorola mobile telephone, with an Orange network SIM card with a telephone number ending 8642. Significantly, the Orange network routinely recorded the unique number of the handset used to make each call with that SIM card. The deceased’s Motorola handset was later designated ‘Handset 1’.

[12]The deceased had four active bank accounts (the correspondence for each of which was sent to 9 Downshire Hill), namely: i) An account with the Alliance and Leicester, for which he had a chequebook and a debit card. As at 26 April 2006, when a statement was sent, the account was in credit in the sum of £418.63. ii) An account with HSBC, for which he had a chequebook but no cards, and used to attend local branches to make cash withdrawals by cheque. As at 17 May 2006, when a statement was sent, the account was in credit in the sum of £1,172. iii) An account with RBS. As at 15 May 2006, when a statement was sent, the account was in credit in the sum of £669.26. iv) An ING Direct Savings account. As at 6 April 2006, when a statement was sent, the account was in credit in the sum of £52,167.79. Monies could only be withdrawn from the account by way of transfer to the deceased’s RBS account. A transfer could only be achieved by telephone contact with ING and the successful answering of various security questions. The deceased had not taken up the additional option of arranging a facility for transfers to the RBS account to be made online.

[13]The deceased also had a Sainsbury’s Visa Card, the account for which was administered by HBOS. A statement was sent each month to 9 Downshire Hill.

[14]The house at 9 Downshire Hill had an outer front door that was relatively flimsy and not very secure. That door had a letterbox from which post, which was delivered daily, if fully pushed through, fell into a small hallway. There was then a far more secure inner door leading to the rest of the house.

[15]On 26 March 2006, the deceased went to the United States for a holiday. As he was expecting correspondence to be delivered whilst he was away (in particular bank statements, dividend payments from his substantial shareholding in the Rank Group and a cheque from the Inland Revenue), he made arrangements with Lady Listowel for any post that had not been pushed through the letterbox to be pushed, and that was done (albeit that the two postmen who made deliveries said that they always pushed the post all the way through anyway).

The events of May and June 2006

[16]It is necessary to set out and analyse in considerable detail what then happened in May and June 2006 and in particular the involvement of the Appellant in relation to the deceased’s mobile phone and SIM card and the deceased’s bank accounts and the relationship of those matters to what can be established about the murder.

[17]The deceased returned from the United States (where he had bought a laptop computer) on Monday 1 May 2006. He found that the outer front door had been forced, that his post (which, as it turned out, did not include the expected cheques from the Inland Revenue and the Rank Group, which were actually issued after his return) had been stolen, and that an attempt had also been made to force the inner front door. He reported the theft to the police on Tuesday 2 May 2006 – saying that the outer front door had been “jimmied”. That day, and over the following two days, the police called round to the house on a total of three occasions to try to speak to the deceased about the theft, but there was no answer.

[18]Also on Tuesday 2 May 2006 the Inland Revenue cheque, which was in the sum of £4,268.35, was issued by HMRC (which had, by then, taken over the functions of the Inland Revenue), and was thereafter posted to 9 Downshire Hill.

[19]On Wednesday 3 May 2006 EDF sent an electricity bill to 9 Downshire Hill.

[20]On Thursday 4 May 2006, the deceased voted in the local elections, topped up his mobile phone, tried to ring his handyman, Mr Carr, rang two locksmiths, and sent a letter to the USA. He used his mobile telephone phone again on Saturday 6 May 2006.

[21]On Monday 8 May 2006, the deceased called HMRC to see if the cheque which he had been expecting had been issued. The call was routinely recorded. At the end of the call somebody said “Bye bye, thank you,” and a voice was thereafter heard to say “Alright, then” and “Mmm”. A voice expert for the Defence, Mr Hirson, gave evidence that it was possible that the latter remarks could have been made by someone who was with the deceased. The Appellant also relied upon the fact that the deceased’s last words included:

“Yes, it would have fallen into the wrong hands otherwise, as you say….”

Which words, it was argued, did not refer to anything that the recipient of the call had said, and therefore implicitly supported Mr Hirson’s conclusion that there was someone else with the deceased.

[22]At all events, that telephone call on 8 May was the deceased’s last known action. He did not use his mobile telephone again after that date.

[23]On Thursday 11 May 2006, the Rank Group issued three dividend cheques totalling £9,886.60 to the deceased. The largest of the cheques was for over £9,000. All three cheques were posted to 9 Downshire Hill after which, like the HMRC cheque for £4,268.35 and the deceased’s mobile telephone, they were stolen during a burglary (Count 2).

[24]On about Friday 12 May 2006, or possibly a week later, at about 10.15 – 10.30am, the regular postman, Mr Sullman, was unable to deliver the post at 9 Downshire Hill because of thick branches that were blocking the outer front door. The branches were about three to five feet deep and about three feet high. Mr Sullman had never come across such an obstruction at the house before, and was unable to move it. He returned to the sorting office and left the mail for no.9 there. He then picked up the mail for the next part of his round and set off again. It was thereafter, about an hour after he had tried to deliver at no.9, that he was approached by a man at the corner of Heath Hurst Road and Keats Grove (not far from Downshire Hill). The man asked if he had any post for 9 Downshire Hill. Mr Sullman said that he did not, and explained why he had not been able to deliver. The man said that he was the nephew of the man who lived at no.9, and that he would get the branches cleared.

[25]The encounter struck Mr Sullman as being odd at the time. His impression was that the individual was a fifty-year-old-ish half-Chinese half-Western man. Chinese but Westernised - at any rate not a typical Chinese man in appearance or accent. Mr Sullman said that the man spoke very good English, and was pretty sure that his accent was English, or from South East England, and, he thought, a bit American. The man was a bit shorter than his own height of 5’ 8” to 5’ 9”, and was quite stocky. He wore a beige jacket. His hair was black or a bit grey, shoulder length with a fringe, and he looked like he needed a haircut. He wore thick black glasses like those worn by the late comedian Eric Morecambe (albeit that the lenses were not thick), was stubble-chinned, and was carrying a satchel. Mr Sullman also recalled that, when he next delivered the post to 9 Downshire Hill, the branches had been removed.

[26]At a VIPER (video) identification parade on 4 July 2006, Mr Sullman identified the Appellant’s image as being the most likely to be the man, but was unable to make a positive identification. The Appellant was, however, the only participant in a beige jacket, and in an unshaven state.

[27]At the material time the Appellant was in his mid-40’s, and was renting a flat at 13c Denning Road in Hampstead – a short distance away from Downshire Hill. The Appellant was born in China and had married there, but had left following involvement in background events relating to the Tiananmen Square demonstration in 1989. In 1992, he came to this country to seek refuge, and was later joined by his wife. They had a daughter. The Appellant became a British citizen on 10 June 1998. He was highly educated and obviously very intelligent – with no indication in his background of any propensity to violence.

[28]Although apparently initially successful in business in this country, the Appellant’s life had taken a substantial financial down-turn by 2005. He had spilt up from his wife and there were contested matrimonial property proceedings – in particular, in relation to the former matrimonial home. In September 2005, he had been made bankrupt – owing £1.1 million to various creditors. He also had a demonstrable history of lying about his status, financial and otherwise – variously under oath in the matrimonial property proceedings, under oath in the bankruptcy proceedings (in which he failed to reveal the ownership of a large number of domain names, and the existence of some overseas bank accounts), and to various estate agents (to two of whom he produced false bank accounts) and car dealers.

[29]It was in June 2005 that the Appellant, using the name ‘John Wong’, had rented the flat at 13c Denning Road, where he lived with his girlfriend Hui Dong, who was in her mid-20s. She became pregnant in March/April 2006 and stopped work - from around which time, based at 13c Denning Road and in local coffee shops, the Appellant had begun a small computer repair business. Whatever the value of the undisclosed domain names, or of the balances in the undisclosed accounts, the Appellant (who had tried, without success, to find a job and was in receipt of benefits) had constant difficulty in paying the rent for the flat at 13c Denning Road, such that in April 2006 the owner, Anna Toma, had obtained an order against him to vacate by 10 May 2006 - later extended to 20 June 2006. Also in April 2006, the Appellant had closed his Barclays account in the Strand owing £1,100, and had opened a Royal Bank of Scotland account in the name of a company called First Front - but that account was not in funds either, and various cheques drawn on it bounced. His only other active account was one with Nationwide – into which his job seeker’s allowance and housing benefit were paid.

[30]At all events, as touched on above, in May 2006 the Appellant was still living at 13c Denning Road, with Hui Dong. There were two telephone landlines at the flat, one of which was stopped on 24 May 2006. From February 2006 onwards access to the internet at the flat was via a ‘Bulldog’ line (which the Appellant had subscribed to in the name of ‘John Richards’, and which required a user name and password to be entered before it could be used), and a wireless router. The Appellant also had two mobile telephone numbers (respectively ending 888 and 909), and three mobile telephone handsets (later respectively designated ‘Handset 2’, ‘Handset 3’ and ‘Handset 4’).

[31]The deceased had no email address and no recorded internet use. However, also on Friday 12 May 2006 (the day after the Rank dividend cheques had been issued and posted to 9 Downshire Hill, and possibly on the day of the encounter with Mr Sullman) an email account Allan.Chap@hotmail.com was created by “Allan Chappelow, New York 10,006 UK” from an internet café called the Internet Lounge at 138 Charing Cross Road - which the Appellant frequented. The Appellant’s use of his mobile phone number ending 909 that day was consistent with his being in the broad vicinity of the Internet Lounge at the relevant time.

[32]As indicated above, on Monday 15 May 2006 an RBS statement, showing a balance of £669.26, was posted to 9 Downshire Hill.

[33]On Tuesday 16 May 2006, the Hotmail account was accessed for the first time – via the ‘Bulldog’ line at 13c Denning Road. There was also a call to the RBS digital online facility.

[34]As indicated above, on Wednesday 17 May 2006, an HSBC statement, showing a balance of £1,172, was posted to 9 Downshire Hill. That same day, there was an attempt to pay in at least the stolen HMRC cheque (in the sum of £4,628) and the largest of the stolen Rank dividend cheques (in the sum of more than £9,000) at the Barclays branch in Charing Cross. As touched on above, the Appellant had closed his Barclays account at the nearby Strand branch a few weeks before. For some reason, the cheques did not get past the back office of the Bank and so were not formally entered into the Bank’s computerised records, but were marked with the Branch’s sort code. In the late evening of 17 May 2006 there was further access to the Hotmail account via the ‘Bulldog’ line at 13c Denning Road.

[35]On Friday 19 May 2006, there was a telephone call to the Alliance & Leicester from a man purporting to be the deceased, saying that he had lost his debit card, and seeking a replacement. The caller gave the correct name, address, date of birth and place of birth, but was unable to give the maiden name of the deceased’s mother. He was told that the account had been blocked until he attended a branch (he selected the one in Victoria) with identification. No one ever attended. Starting minutes later, the Hotmail account was accessed on three occasions – again from the Internet Lounge at 138 Charing Cross Road. There were also a number of telephone calls between the Appellant and Money TT International (a company which specialised in transferring money from the UK to China). That evening there were 3 calls, totalling 21 minutes, from the flat at 13c Denning Road to Barclays Bank (where, as indicated above, there had been an attempt to pay in at least two of the stolen cheques two days earlier). At some point, it seems thereafter, the cheques and the Barclays paying in slip were returned to the person who had paid them in.

[36]On Saturday 20 May 2006, three calls to Voicemail were made using the deceased’s SIM card (which had not been used since 8 May 2006). The first two were made with the SIM card in the Appellant’s ‘Handset 2’. The third was made with the SIM card in the deceased’s Motorola handset – ‘Handset 1’. Thereafter the deceased’s SIM card was used in the Appellant’s ‘Handset 2’ (which he also used with his 909 SIM card) until 31 May 2006; and in the Appellant’s ‘Handset 3’ (which he also used with his 888 SIM card) from 23 May 2006 until 1 June 2006; and in the Appellant’s ‘Handset 4’ (which he had also used, but not after 2005, with his 909 SIM card) from 1 – 14 June 2006. ‘Handset 2’ and ‘Handset 3’ were recovered when the Appellant was eventually extradited from Switzerland. ‘Handset 1’ and ‘Handset 4’ were never recovered.

[37]On Monday 22 May 2006, the Appellant, filmed on CCTV, went to the Tottenham Court Road branch of HSBC and paid in the four stolen cheques, totalling £14,154.95, to the account of Z Jian at the Bank of China in Manchester. Zhao Jian was the Cantonese name of the Appellant’s friend of more than a decade, Jenny Zhao, whom the Appellant had asked in April or early May about using her bank account to pay in some money so as to enable a bank statement to be produced to the authorities to show that a student had the means of support required to obtain a visa. The money, the Appellant had told her, would be coming from him and maybe his family, and once the bank statement had been produced the money was to be returned to the Appellant, who said that he could not use his own account because he had no regular income, and that nor could Hui Dong use her account. The Appellant had asked for Jenny Zhao’s account details in May. He telephoned her on 22 May and told her that he had paid the money in. Also that day, a statement in relation to the deceased’s Sainsbury’s Visa card was posted to 9 Downshire Hill.

[38]On Tuesday 23 May 2006, the deceased’s Voicemail was accessed again, this time via the use of his SIM card in the Appellant’s ‘Handset 3’.

[39]On about Wednesday 24 May 2006 Jenny Zhao was in contact with the Bank of China who informed her that the money paid into HSBC had not been received and that, as her account had been inactive for a year, she had to attend the Bank with her passport.

[40]On Thursday 25 May 2006 EDF sent a reminder to the deceased at 9 Downshire Hill about the electricity bill which he had been sent on 3 May 2006, but which had not been paid. The Appellant telephoned the Bank of China about the fact that the money had not been credited to the Jian account, and then went to the HSBC branch in Tottenham Court Road where he spoke with Dawn Gregory - showing her the stamped paying in counterfoil for the four cheques, which she copied. She said that she would investigate and let him know.

[41]On Friday 26 May 2006 Jenny Zhao went to the Bank of China in Manchester and paid some money into her account in order to reactivate it. She was told that the money from the cheques that the Appellant had paid in had not arrived and she telephoned the Appellant to inform him. The Appellant telephoned the Bank of China and then went to the HSBC branch in Tottenham Court Road, where he again spoke with Dawn Gregory – asking that HSBC ring the Bank of China to sort the situation out. She decided that no money was going to be moved unless Mr Chappelow himself confirmed the payment. In the result, later that day, HSBC wrote a letter to the deceased at 9 Downshire Hill, which was posted the following day, asking him to speak to one of two named employees at the branch. That evening, the Hotmail account was accessed via the ‘Bulldog’ line at 13c Denning Road (around the broad time when the Appellant’s own SIM use put him in the Hampstead area), and there was an online application to set up an online service for the deceased’s RBS and ING accounts.

[42]At lunchtime on both Saturday 27 May 2006 and Sunday 28 May 2006, the Hotmail account was accessed via the ‘Bulldog’ line at 13c Denning Road. Monday 29 May 2006 was a Bank Holiday.

[43]On Tuesday 30 May 2006, the Appellant made telephone calls from 13c Denning Road to the Bank of China, HSBC and Jenny Zhao. He also went to the HSBC branch in Tottenham Court Road where, again, he saw Dawn Gregory. He said that both he and the lady whose account was to be credited knew Mr Chappelow well, and that the money was a gift from Mr Chappelow to enable the lady to put her son through university. He explained that he would get Mr Chappelow to come in and see Ms Gregory. She explained that the best way to achieve the desired result was for Mr Chappelow to pay the money into his own HSBC account and then to write a cheque in favour of the lady. It was nevertheless possible, she said, to continue the current process – but only if Mr Chappelow came into HSBC, which the Appellant indicated he would. Thereafter there was a phone call from a public call box, purportedly from the deceased, to Brenda Hurst (one of the two employees named in the letter posted to 9 Downshire Hill three days earlier), who passed him on to Sue Yates (the other employee named in the letter). The caller, who sounded oriental and younger than a man in his 80’s, knew the deceased’s date of birth and credit limit, the source of the cheques, and (almost exactly) the number of Rank shares that the deceased owned. The caller said that he had received the HSBC letter (posted on 27 May 2006) that morning, and that Jenny Zhao was a Chinese doctor. He spelled her name correctly in Cantonese (Jian). The money was, he said, intended to be a loan to her, but he asked that the cheques now be credited to his own HSBC account – for which he gave the correct number. That same day, in response to the call made to them on 16 May 2006 (above), RBS posted an online activation code to 9 Downshire Hill.

[44]On Wednesday 31 May 2006, there were three calls, each using the deceased’s SIM in the Appellant’s ‘Handset 2’ and made via the telephone mast at the Royal Free Hospital in Hampstead - to Voicemail, to EDF (about the outstanding bill) and, admittedly by the Appellant, to RBS (in fact about the online activation code). The Appellant was also in contact with Jenny Zhao.

[45]On Thursday 1 June 2006 HSBC wrote to the deceased about the four cheques. The Appellant made a call from 13c Denning Road to the Bank of China. The RBS activation code (which had been sent to 9 Downshire Hill two days before) was used at the Internet Lounge at 138 Charing Cross Road to generate a password and PIN, and to view the deceased’s account. Thereafter, using the deceased’s SIM card in the Appellant’s ‘Handset 3’, two calls were made from the West End to ING by a man purporting to be the deceased, who said that he wanted to withdraw money from the account, but had forgotten his PIN. However, he was unable to give the memorable date for the account, which was then blocked. The caller was told that a new PIN would be sent to him.

[46]On Friday 2 June 2006, the Appellant was again in touch with Jenny Zhao. Also, using the deceased’s SIM card in the Appellant’s ‘Handset 4’, a call purporting to be from the deceased was made from the Camden area (where the Appellant was at the broad material time) to HSBC. The caller wanted to know the balance on the deceased’s account, gave the deceased’s place of birth as Copenhagen, but was not able to provide the relevant memorable word. He was told to go into his local branch. Also that day, again using the deceased’s SIM card in the Appellant’s ‘Handset 4’, a call purporting to be from the deceased was made from Hampstead (where the Appellant was at the broad material time) to Sainsbury’s. The caller gave the correct password (which was later found recorded in the deceased’s address book at 9 Downshire Hill), said that he had lost his Visa card, and asked for a replacement to be sent. He also changed the security password on the account. Later that day a PIN for the new Sainsbury’s card and, separately, a new PIN for the ING account, were posted to 9 Downshire Hill.

[47]On Monday 5 June 2006, a man purporting to be the deceased called EDF about the outstanding electricity bill for 9 Downshire Hill, and asked to set up a Direct Debit. The Appellant went to the Internet Lounge at 138 Charing Cross Road where he accessed the internet. Thereafter the deceased’s RBS account, and (using the new PIN) his ING account, were both accessed online at Crystal Amusements at 61 Charing Cross Road. There was a problem with accessing the ING account because the memorable date on the account was also required. A call, using the deceased’s SIM in the Appellant’s ‘Handset 4’, was then made to ING by a man purporting to be the deceased - during the course of which the memorable date was changed to 13 November 1998 (which is the birth date of the Appellant’s daughter). The ING account was then accessed online (again from Crystal Amusements) and £20,000 was transferred from the ING account to the RBS account (Count 5) - with £10,000 of that marked for transfer to ‘Money TT International’. That same day the Appellant went to a Volvo dealership in Euston Road in London where, giving the name John Wong and his former matrimonial address in Wimbledon, he looked at an estate car for £23,000. He wrote a First Front cheque for £500 (which later bounced) as a deposit.

[48]On Tuesday 6 June 2006, the Appellant was involved, for much of the day, in court proceedings relating to his eviction from 13c Denning Road, and there were no activities in furtherance of the fraud on the deceased. The Appellant viewed a flat in Belsize Grove and wrote a First Front cheque (which later bounced) to the owner, Mrs Jacobs, in the sum of £1,850.

[49]On Wednesday 7 June, the Appellant (using the name John Wong) and Hui Dong viewed a flat that the owner, Mrs Sheppard, was letting in Southall Park – with the Appellant saying that he was a banker, and that he was on the board of several banks. Using the deceased’s SIM card in the Appellant’s ‘Handset 4’, calls were made from the Hampstead area variously to Camden Council (asking to pay the deceased’s council tax by direct debit), to Voicemail, to Directory Enquiries, and to Sainsbury’s – three of which were made via the mast that partly covered the road where Mrs Sheppard’s flat was. That same day the £20,000 transferred two days earlier from the deceased’s ING account was received by the deceased’s RBS account, which was accessed twice online from Qaran Express in Pratt Street in Camden - during the course of which a ‘Money TT’ account was validated for transfers and a transfer of £10,000 was made to that account (‘Money TT reference Jenny’ at Barclays Bank). However, RBS suspected fraud and froze the online banking service on the deceased’s account. The deceased’s ING account was also accessed via Qaran Express, but no transaction was carried out.

[50]On Thursday 8 June 2006 Sainsbury’s posted a new Visa card to 9 Downshire Hill. The Hotmail account was accessed from Phone City in Kentish Town, and attempts were made to access the RBS account online from both Phone City and the Town Net Café (which was also in Kentish Town) – all at times broadly consistent with those when the Appellant was shown to be in Kentish Town. Latterly, that included an attempt to make an application for a new online facility for the deceased’s RBS account. The ING account was accessed from Phone City. There was also a later attempt to access the RBS account from the E Café in Golders Green, from where the ING account was accessed and an attempt made to link it to the deceased’s HSBC and Alliance & Leicester accounts – all at times consistent with those when the Appellant’s own mobile phone number and Oyster card showed that he was in Golders Green. There were also telephone calls, using the deceased’s SIM card in the Appellant’s ‘Handset 4’, to HSBC, RBS (on a number of occasions - as to the inability to use the online service), and ING (during which the caller requested the transfer of the remaining £10,000 back into the ING account, and was told that the account had been blocked).

[51]On Friday 9 June 2006 RBS posted a letter to the deceased at 9 Downshire Hill asking him to call their Helpdesk. The £10,000 transferred from the ING account via the RBS account arrived into the account of ‘Allan Chappelow, reference Jenny’ at Money TT (but was frozen by Barclays Bank), and the ING account was accessed online from Crystal Amusements in Charing Cross Road (which the Appellant was shown to have been in the broad vicinity of about an hour earlier) but no transactions were attempted.

[52]On Saturday 10 June 2006, there was a call to RBS, using the deceased’s SIM in the Appellant’s ‘Handset 4’, from a man purporting to be the deceased – saying that he had received the letter sent the day before. He was able to answer various security questions, but was told to go into his local branch. The following day, Anna Toma, the owner of 13c Denning Road, delivered a Note to the Appellant – reminding him that the bailiffs would be attending on 20 June.

[53]On Monday 12 June 2006, the Appellant went to the Internet Lounge at 138 Charing Cross Road - from where he attempted to make substantial online payments, to a company of which he was a customer, via the Sainsbury’s Visa card (which, as indicated above, had been posted to the deceased on Friday 8 June), which resulted in the card being blocked. Following a call, purporting to be from the deceased, to Sainsbury’s the card was unblocked, and was used to make two purchases – one from Network Solutions (a company of which the Appellant had been a customer in the past) and the other by the Appellant at Foyle’s Bookshop in Charing Cross Road (where he was caught on CCTV buying books for £74). The Hotmail account was then accessed from the Internet Lounge, and there were applications for a Morgan Stanley credit card and an American Express card (both in the deceased’s name) using the Hotmail address. Telephone evidence was consistent with the Appellant still being in the Charing Cross Road area at that time. That night, following telephone calls to them during the day, the Appellant went to Money TT, and complained to the owner, He Jia Jin, about the behaviour of his staff in relation to the non-transfer of the funds.

[54]Meanwhile, earlier on Monday 12 June, HSBC had alerted the police to their concerns about the activities in relation to the deceased’s cheques and account. In the result, uniformed Officers in marked vehicles had attended the house at 9 Downshire Hill on a number of occasions that afternoon. Entry was forced and the interior was searched – but no one appeared to be there. Credit card statements, National Insurance documents and an unused chequebook were recovered. One of the rooms (later designated ‘Room 6’, and which was said to be “seldom used”) was noted to have a 3-4-foot-high pile of manuscripts lying on the floor, but the Officers who attended noticed nothing suspicious about that.

[55]On Tuesday 13 June 2006, the Appellant made three attempts (caught on CCTV) to use the Sainsbury’s Visa card at a cashpoint in Kentish Town to withdraw cash. He then moved (also caught on CCTV) to another cashpoint nearby where he withdrew £20 (Count 6). The Hotmail account was then accessed from Phone City in Kentish Town – from where attempts were made, using the account, to obtain an online facility in relation to the Sainsbury’s card (which was then blocked), and to obtain credit facilities from Capital One Bank. The deceased’s ING account was also accessed from Phone City, but no transactions were attempted. That evening there were attempts, using the Sainsbury’s card, to withdraw more cash. The Appellant (giving the name ‘Allan’) then tried, using the correct PIN, to pay for a restaurant bill for himself and Hui Dong with the Sainsbury’s card, but payment was refused – even though he spoke to Sainsbury’s on the telephone. The bill was eventually settled in cash. During the course of that day, two uniformed Officers, in a marked car, had taken two Detectives to 9 Downshire Hill - where they had spent about an hour, but nothing had been found. A decision was, however, made to return the following day with a specially trained sniffer dog.

[56]On Wednesday 14 June 2006, there were calls, using the deceased’s SIM in the Appellant’s ‘Handset 4’, to HSBC (trying to obtain a cheque book and credit card on the deceased’s account) and to Sainsbury’s. During the call to Sainsbury’s the caller, who insisted that he was Allan Chappelow, was agitated and upset. Sainsbury’s called back on the deceased’s number (which was in the Hampstead area). In the result the block on the card was lifted but, after unsuccessful attempts by the Appellant to withdraw cash at the Nationwide Building Society followed by the successful withdrawal of £20 at Hampstead Tube Station (all caught on CCTV), the block was re-instated. Later, after the Appellant had travelled to Oxford Circus, the Hotmail account was again accessed from the Internet Lounge at 138 Charing Cross Road. There was also another call, purporting to be made by the deceased, to Sainsbury’s. The caller answered all the security questions correctly, but the recipient of the call said that he had a foreign accent (which she thought was Asian), and sounded much younger than 86. She told him that he had to go into a branch.

The discovery of the deceased’s body on 14 June 2006

[57]During the further search at 9 Downshire Hill on 14 June 2006, the specially trained sniffer dog signed the presence of a body in the room with the manuscripts (‘Room 6’). The deceased’s body was found on the floor under them. Each bundle of manuscripts was poster-sized, folded over, and heavy - like a heavy binder or several books combined. There was around half-a-tonne of such papers covering the body. From around 3pm onwards, a Police cordon was put around the house.

[58]Scientific examination of ‘Room 6’, which (as indicated above) was said to have been “seldom used”, showed that the murder (Count 1) had been carried out in it. A jacket was found scrunched up beneath the deceased’s neck area, and he was wearing two pullovers, a back support, braces and trousers. There was no trail of blood indicating an attack at the front door or in the hallway area. The cause of death was at least five severe blows to the head with a blunt instrument (such as a mallet or hammer), which was not recovered, or possibly by a shod foot – which blows had been delivered while the deceased had been close to, or lying on, the floor. There were also three separate further uses of force: on the neck (as a possible method of strangulation) and to the upper and lower left ribs. There was also burning to the right forearm and chest of the deceased, burning of his clothes and the presence of melted wax on his clothing. It was unclear whether that was inflicted before or after death, as torture or as an abandoned attempt to dispose of the body. From the state of flies found in the room, it was estimated that the death could not have occurred after 15 to 23 May 2006, and the Pathologist favoured death having occurred fairly soon after the deceased was last known to have been alive – i.e. fairly soon after Monday 8 May 2006.

[59]Unknown DNA was found in the lock area of the outer front door. Two unidentified finger marks were found on the inside of the door – although they could have been made by the deceased as, because of decomposition, prints could not be taken from all of his fingers. Marks were found on manuscripts from ‘Room 6’ – three of which were shoe marks and two of which might have been shoe marks. The marks were consistent (save for one group where it was not possible to identify the pattern or the part of the shoe involved) with having been made by Police and a forensic examiner. Eight rolled-up cigarette ends were found on a tray in ‘Room 7’ (which was next to the room in which the body was found), which bore the DNA (which it was not possible to age) of a man who was not the deceased, the handyman Mr Carr, or the Appellant. A candle was found in ‘Room 9’, and the computer which the deceased had bought in the USA was found in ‘Room 12’, along with his mobile telephone phone charger, and a Sainsbury’s statement dated 20 March 2006. In ‘Room 16’, on the top floor, which (as indicated above) it appeared that the deceased had used as his bedroom, the items found included the deceased’s passport; his part-used RBS chequebook; two address books; an ING statement dated 5 May 2005 with handwritten notes on it of the deceased’s personal reference, memorable date, and PIN; an unused Visa card issued in February 2006; an unused Alliance & Leicester chequebook; and the box for the deceased’s Motorola mobile telephone. A bottle of urine and a copy of the Daily Mail dated 6 May 2006 were found in an upstairs bedroom. The deceased’s SIM card, his Motorola handset, and his keys for the house were never found.

Arrest and trial

[60]On Thursday 15 June 2006, the Appellant (leaving various debts behind him) travelled, on a return train ticket, to Brussels. On Saturday 17 June 2006, the Hotmail account was accessed from Brussels, from where the Appellant then travelled to Switzerland. The Hotmail account was never accessed again. Hui Dong flew to Switzerland on Monday 19 June 2006. That same day the Police searched the flat at 13c Denning Road – including seven rubbish bags containing financial documents going back to 2003 that had been left outside. Whether there or at 9 Downshire Hill, no DNA or other scientific evidence was found to connect the Appellant directly to no.9 or to the deceased.

[61]The Appellant was extradited from Switzerland, charged with murder, burglary and other offences concerning the identity and banking fraud. As indicated above, there were two trials before Ouseley J.

[62]A number of the telephone calls purporting to have been made by the deceased to the various banks had been routinely recorded. It was not disputed that the caller had a distinct, if not strong, Chinese accent. There was conflicting expert evidence from Dr Holmes (for the Crown) and Mr Hirson and Professor Xu (for the Defence) in relation to the identity of the caller. Dr Holmes and Mr Hirson were broadly agreed that the calls had all been made by the same person. Dr Holmes (who did not use the HSBC calls in her analysis) concluded that, when compared to her reference tape of the Appellant speaking, the ING and Alliance & Leicester calls were distinctive in similarity, and the RBS calls were moderately distinctive in similarity – such that the caller was consistent with being the Appellant. However, she accepted that the speakers could well be different. Mr Hirson concluded that, when compared to his reference tape of the Appellant speaking, it was fairly likely that the caller was not the Appellant. However, he accepted that that did not exclude the real possibility that the caller was the Appellant. Professor Xu, relying on pitch, was very much more certain that the caller was not the Appellant.

The Crown’s case

[63]The Crown’s case was that the burglary, mail theft, identity fraud and murder were connected events, and that all were carried out by the Appellant acting alone. The Crown asserted that the Appellant had burgled the house, that he had not planned to murder the deceased, but that he had done so by way of an uncharacteristic reaction to a chance encounter with the deceased in what the Appellant no doubt thought was an unoccupied house. It was, said the Crown, entirely fanciful to suppose that someone had murdered the deceased, left the property and had no more to do with him or his money, and along had come someone else who had decided that the deceased was ripe for the taking and somehow found his SIM, his mobile phone, his four cheques and knew about the accounts that he had. The only rational conclusion was that it was the Appellant who was the identity thief; that he was responsible for the theft of mail and for getting mail sent to 9 Downshire Hill; that he knew that he could access it safely because he knew that the deceased was dead; and that the only way he could have known that was because he had killed him. The motive in covering up the body was to delay discovery for as long as possible - so as to enable full advantage to be gained from the identity takeover.

[64]The key evidence relied upon in support of that circumstantial case was as follows: i) The Appellant’s dire financial circumstances. ii) The fact that he lived close to the scene. iii) Mr Sullman’s evidence as to the encounter on 11 May 2006 and as to the identification procedure on 4 July 2006. iv) The setting up of the Hotmail address in the deceased’s name on 12 May 2006 at an internet café which the Appellant frequented. v) The fact that, thereafter, the Hotmail address was accessed from the Appellant’s home and from internet cafes that he was shown to be in the vicinity of at the material time. vi) The important use of the deceased’s SIM in the Appellant’s ‘Handset 2’, then in the deceased’s ‘Handset 1’, and then in the Appellant’s ‘Handset 2’, ‘Handset 3’ and ‘Handset 4’ (and in no other handset). vii) CCTV, Oyster card, telephone and other evidence putting the Appellant in the vicinity of the locations from which telephone calls (which were recorded), and/or internet connections, were made to banks and others. viii) The use, on 5 June 2006, of the Appellant’s daughter’s birth date as the new memorable date on the deceased’s ING account. ix) The Appellant’s role in the obtaining and use of the Sainsbury’s Visa card. x) The Appellant’s departure to Brussels on 15 June 2006 - the day after the deceased’s body had been found and a police cordon put up. xi) The fact that the Hotmail address was accessed from Brussels on 17 June 2006, and that thereafter fraudulent activity ceased.

The Appellant’s case

[65]The Appellant underlined that there was no fingerprint, DNA or other forensic evidence to link him to 9 Downshire Hill, or to the murder of the deceased, and that it was possible that another person had been with the deceased when he had telephoned HMRC on 8 May 2006. The Appellant emphasised his own non-violent good character; the fact that there was no evidence of forced entry to the inner front door of no.9, and that the deceased’s house keys had not been found; the presence of unknown DNA on the lock area of the outer door; the presence of unknown DNA on the cigarette butts found in ‘Room 7’; and that other materials of interest to a fraudster, including bank documents and a chequebook were left inside the house.

[66]The Appellant called as a witness another neighbour of the deceased, Mrs Dennis, who spoke of the theft of a chequebook that had been sent in the post, and of the use of one of the cheques on 20 April 2006 to try to buy items from a mail order company for delivery to London E9.

[67]The Appellant variously denied: i) Ever knowing or meeting the deceased, or ever being inside the house or in the garden of 9 Downshire Hill, or ever having the deceased’s phone. ii) Being the person seen by Mr Sullman – asserting that Mr Sullman’s description of the man as having an English accent, being less than 5’ 8” tall, and having shoulder length hair, all excluded the Appellant from being the man in question. iii) Any deliberate or knowing participation in the takeover of the deceased’s identity. iv) Creating or accessing the Hotmail account in the deceased’s name – whether via his home address or via internet cafes (which he admitted using). v) Making the recorded telephone calls to the financial institutions, or undertaking the attempted transfers from the various accounts. vi) Any involvement in using the internet at his home for fraudulent transactions (particularly on 26, 27 & 28 May when, he said, he did not have a computer), or in using the deceased’s SIM card in one or more of his own telephone handsets or, on 20 May 2006, in the deceased’s handset, to make calls.

[68]The Appellant admitted only what was not practicably disputable, namely that: i) He had paid in the four cheques at the Tottenham Court Road branch of HSBC on 22 May 2006, had thereafter gone into the branch on three occasions to discuss the position, and had also telephoned Bank of China about the cheques. ii) He had been in possession of the Sainsbury’s Visa card, had used it on a number of occasions, and had spoken to Sainsbury’s about it.

[69]However, the Appellant denied acting dishonestly. He asserted that the items had been given to him by members of a gang who he named as Gaz, Ah Ming, and Xaio Dong. He had, he said, loaned his mobile telephone, minus the SIM card, to Xaio Dong, and had given ‘Handset 4’ to Ah Ming in early June 2006. In any event, he relied on the fact that it was technically possible for it to be made to appear that a SIM card had been used in a particular handset when it had not, and for someone else to have been using his ‘Bulldog’ internet account without his knowledge. His home computer had, he said, been broken since April 2006. One of the others, he said, must have got his daughter’s birth date from a photograph of her in his flat.

[70]The Appellant’s evidence was that in April or early May 2006, having set up his small computer repair operation, he had received an inquiry from Gaz, who was aged 35 – 40, of Albanian descent, had an Eastern European accent, was a graduate in computer science, owned a business called Digital Vision, and wanted him to fix a faulty computer, which he did. Thereafter, having been told by Gaz that the passwords for two computers had been forgotten, he had gained access to them for him. Gaz had introduced him to Ah Ming (who was Chinese, aged 35 – 40, worked for a food company in King’s Cross, and also worked for Gaz) and Xiao Dong (who was Chinese with a tanned face, aged 30 – 32, had a travel business and had worked for Gaz in both France and the UK). Gaz had come to the Appellant’s flat briefly, but Ah Ming had done so many times in April, May and June 2006, and would go into the sitting room where the Appellant’s wireless router and a sticker with the password for it were. From the beginning of May 2006, until the 22nd, he would meet Xiao Dong on a daily basis in Tottenham Court Road and Hampstead, but after that he had seen much more of Ah Ming. He had not seen Gaz again after 22 May, and was told that he had gone to France. The telephone number that he attributed to Gaz turned out (on investigation by the Police) to be a number in Harlesden where the occupiers, who had been living at the relevant address at the material time, had not heard of any of the people named by the Appellant.

[71]The Appellant accepted that the description given by Mr Sullman did not match Gaz, Ah Ming or Xiao Dong, and that nor did it match a man called Atai (who was aged 40 – 45, and was the boyfriend of Liu Ming, who owned an internet café at 80 Shaftesbury Avenue). Nor did any of the tape-recorded telephone calls sound like Gaz, Xiao Dong, Ah Ming or Atai – although he thought that the caller could be Atai’s driver.

[72]Atai, he said, had asked him if he would help sell his (Atai’s) car for £12,000, for which the Appellant would receive a commission of £2,000, and he had agreed. A few days later Gaz and Ah Ming had asked him to help cash some cheques, the proceeds from which Gaz was going to use to buy Atai’s car. Gaz and Ah Ming could not use banks because they owed the banks money. The Appellant said that he had been at pains, so that he would get his commission, to keep Atai and the others apart. He had told the others about a place in Golders Green (Money TT), but a few days later they had said that the place wanted £900 in commission to cash the cheques, which was too high. He had not been involved in the attempt to pay in the cheques at Barclays on 17 May 2006. Eventually however, said the Appellant, he had offered to cash the cheques himself - so that he would get his commission on the car.

[73]By 22 May 2006, when he was asked to pay the cheques into HSBC, he had thought that Gaz and Ah Ming were into stolen computers and people smuggling. Xaio Dong had asked him to find students whose accounts could be used to move gambling money. Gaz had given him the four cheques, which were payable to AG Chappelow, and he had thought that the “G” in the name was for Gaz. He was suspicious about the cheques, which were accompanied by a Barclays paying in slip, but did not think that it was a fraud. He had contacted Jenny Zhao before paying the cheques into her account and had been hoping that the cashing of the cheques would mean that he would get both a bank statement for a student visa and his commission for the sale of the car. He had filled out an HSBC paying in slip – writing that the person paying in was AG Chappelow. Thereafter there was increasing pressure from the others to sort out the payment – that was why he had been back to HSBC and spoken with Dawn Gregory three times, and had also telephoned the Bank of China. It was only after his last visit that he had realised that Gaz would have to go into the branch to sort it out for himself.

[74]Having initially said that he had had a meeting with Gaz and Ah Ming the day before his final meeting with Dawn Gregory on 30 May 2006, when then reminded that the person, purporting to be the deceased, who had called HSBC on 30 May, had given the same explanation that the Appellant had given to Dawn Gregory, the Appellant said that he had had a meeting with the others after he had seen Dawn Gregory, and had passed on what had been said. At one stage, he said that he had never talked about students with Gaz; at another that he had just told Gaz that it would support a student or generate a bank account.

[75]The Appellant said that by the beginning of June 2006 his view of the others had changed, and he thought that the others were gangsters, but did not feel unsafe as he had done nothing to harm them. By 8 or 9 June only Atai was chasing him, but the others were still interested in buying the car. By 10 June he had spoken with Gaz who always said that the money would be transferred, and thus he had still thought that he was going to get his commission.

[76]He had been given the details of the Sainsbury’s card and, at the Internet Lounge on 12 June 2006, had made the attempts to make payments using those details – which had included the deceased’s date of birth. He had thought that it was a card that was being used, with the card holder’s consent, for money laundering, but did not think that it was stolen. Ah Ming owed him £100 for fixing computers and had given him the card to take the money, or to buy goods to the value of £100. Hence, he had used it to buy the books for £74 from Foyles on 12 June. He had met He Jia Jin at Money TT on 12 June because he wanted to make friends with him and was still hopeful of getting his commission.

[77]On 13 June 2006, in Kentish Town, he had made three attempts to use the card to withdraw cash, and had then succeeded in withdrawing £20 from a cash point – which was again part of the £100 that he was owed. The remaining £6 of the debt had been paid to him in cash. He had not been involved in the further attempts to obtain cash that evening, but had attempted to use the card at the restaurant and had spoken to Sainsbury’s merchant services. However, he had not made any other calls to Sainsbury’s – those were perhaps made by the person who he feared was trying to frame him.

[78]On 14 June 2006 Ah Ming had come to his flat wanting the Sainsbury’s card, but the Appellant had refused to give it to him. Thereafter, using the card, he had attempted to withdraw money at Nationwide in Hampstead, and had succeeded in withdrawing £20 at Hampstead Tube Station.

[79]His decision to leave the country had had nothing to do with the Police cordon going up at 9 Downshire Hill on 14 June, and he had intended to return. He did not tell any of the others that he was going to leave, but had sent them a message letting them know that he was in Belgium.

[80]It is clear that, in cross-examination, numerous weaknesses, inconsistencies, gaps, and contradictions in the Appellant’s account were exposed, together with various changes by him of that account to try to meet the points being made.

[81]As already indicated, at the conclusion of the first trial the Appellant was convicted of 3 offences: handling stolen property (Count 4); obtaining a money transfer by deception (Count 5) and theft (Count 6). The jury, having failed to reach agreement, were discharged from returning verdicts on the remaining Counts of murder, burglary and theft.

The re-trial

[82]The judge’s summing up at the re-trial was crystal clear, fair and thorough. He directed the jury that if they were not sure that the Appellant was guilty of burglary or theft then they could not convict him of murder, but emphasised that it did not follow that guilt of burglary or theft meant that the Appellant was necessarily guilty of murder. He directed the jury that it was for them to decide if, on objective and fair analysis, the only reasonable conclusion was that the Appellant was guilty of murder. If the evidence permitted some other reasonable inference to be drawn, then the verdict must be not guilty.

[83]After a detailed circumstantial evidence direction, and because the extent of the Appellant’s involvement in the identity takeover was crucial, the judge took the circumstantial evidence direction a stage further, and directed the jury that, unless they were sure of five points, they could not begin to conclude that the Appellant was guilty of murder. The five points were that: i) It was the Appellant who, after 8 May 2006, had made the phone calls using ‘Handset 1’ and all the calls using the deceased’s SIM card (because the handset and SIM were particularly important aspects of the case as, when the deceased had had them, it was very likely, even certain, that the two were not separated, and that the handset would have been on the deceased’s person or in the house with him). ii) It was the Appellant who had set up and accessed the Allan Chappelow Hotmail account on all the occasions that it was accessed. iii) It was the Appellant who had carried out all the other internet activity connected with Mr Chappelow’s accounts, or in attempts to set up accounts in his name. iv) It was the Appellant who had arranged the transfer from ING to RBS and on to Money TT. v) It was the Appellant who had used the Sainsbury’s Visa card on all the occasions when it was used.

[84]The judge went on to explain to the jury that the reason they had to be sure of all those matters was that, if they were not sure that it was the Appellant who did those acts, which it was not disputed that somebody had done, then that would mean that they regarded it as possible that someone else was acting, either instead of or with the Appellant, which would give rise to the possibility that the other person alone had committed the murder and burglary/theft. Hence, he directed the jury that if they were not sure of those matters, then there could be no possible basis for a finding that the Appellant was responsible for the death.

[85]The Judge went on to point out that even if the jury were sure of the Appellant’s sole responsibility for the fraud, that could not of itself demonstrate that he murdered the deceased; they had to go on to ask whether all the evidence, taken together, drove them to the conclusion that he was also the murderer. If, for instance, they could not exclude the possibility of anyone else being involved at the house at the time of the murder, then they could not be sure that the Appellant was responsible and his acquittal of murder must follow.

[86]In January 2009, at the conclusion of the re-trial, the jury convicted the Appellant of burglary (Count 2 - unanimous) and murder (Count 1 - by a majority of 9:1).

The original appeal against conviction – October 2010

[87]At the original appeal, the Appellant challenged his conviction for handling stolen goods - on the basis that it was an alternative to the burglary and theft Counts upon which the jury could not agree. Having failed to reach agreement on the principal Counts, no verdict should have been taken, it was argued, on the alternative Count of handling. This court agreed and set that conviction aside.

[88]As to his conviction for murder, the Appellant criticised the trial judge’s order for in camera hearings at trial; his direction to the jury on the identification evidence given by the postman, Mr Sullman; and his directions on the voice identification evidence generally and, in particular, as to the call to HMRC on 8 May 2006. Whilst it was conceded by experienced Leading Counsel, then appearing on the Appellant’s behalf, that the evidence linking the Appellant to the fraudulent use of the deceased’s identity and bank accounts was “compelling”, it was contended that, in the absence of any direct evidence of the Appellant’s connection with the crime scene, the judge should have acceded to the Defence submission of no case; and that there was a lingering doubt.

[89]This Court (Hughes LJ, Vice-President of the Court of Appeal (Criminal Division), Saunders and Thirlwall JJ), albeit granting leave in relation to the Ground concerned with Mr Sullman’s evidence, and the combination of the Grounds concerned with the recorded telephone calls, dismissed the appeal on 5 October 2010 - finding that there was no reason to doubt the safety of the appellant’s conviction for murder.

[90]At [52] & [53] the Court said:

“There was indeed compelling evidence connecting the Appellant to this fraud. It included, but was by no means limited to, the following: The first attempt to pay in the stolen cheques had been at Barclays Bank but had been refused. The follow up call by the fraudsman to Barclay’s had been made from the defendant’s landline. The defendant was then caught on CCTV entering an HSBC branch just up the road from Tottenham Court Road Station to pay the same cheques in for the credit of a Bank of China account held by a friend of his who gave evidence that he had asked to use her account. The fraudulent Email account in the name of the deceased was accessed on numerous occasions from the broadband connection at the defendant’s flat. It was also accessed once from Brussels on the day that the defendant was there after leaving England abruptly the day after the body was found when police activity at the home of the deceased was obvious. The ‘Money TT’ account which was the intended destination of the £10,000 was connected to the defendant. He was shown by CCTV or identification evidence to have used the Sainsbury’s card in a restaurant, a shop and an ATM. Further, the same card had been used online to make a purchase for a business connected to him. When the fraudsman persuaded RBS to alter the security codes for the deceased’s account, the memorable date employed was the birthday of the defendant’s daughter. Cellsite and oyster card records consistently put the defendant in the same area as actions committed in the course of the fraud. The SIM card from the mobile telephone of the deceased was used for many of these transactions, not only in the deceased’s handset, but also in one of three handsets belonging to, or used by, the defendant. The defendant admitted only a very small part of this evidence, in effect where it was not practicably disputable. He admitted trying to pay in the stolen cheques at HSBC, but said that they had been handed to him by one of the gangsters with a request to pay them in. He admitted using the Sainsbury’s credit card, but said that the gangsters had given it to him. He admitted the connection to the Money TT account, but said that it was all part of the efforts of the gangsters to cash the cheques. He said that the telephone call to Barclays had been on an entirely innocent topic. He suggested that his daughter’s date of birth must have been used deliberately by the gangsters, having spotted it on a photograph in his flat. Otherwise he denied any part in the fraud.”

[91]At [54] & [55] the Court continued:

“Mr Robertson’s contention that none of this entitled the jury to conclude that the defendant was not only the fraudster but also the murderer proceeds on the basis of attacking various of the more theoretical aspects of the Crown’s suggested scenarios for the mechanics of the murder. We accept that there were arguments to be advanced against some parts of them, such as the theory that the murder must have been committed in the porch, even if the deceased had indeed surprised the thief interfering with his post. But such hypothetical scenarios are often ventured, and they may or may not end up convincing when the whole of the evidence is examined. If some details turn out not to be, that does not mean that there is no case at all to answer. Similarly, there were certainly arguments to be advanced for the defendant. There were cigarettes in the room next door to the one where the body was found, which enabled there to be the suggestion that there had been a number of people there, although they could not of course be dated. We agree also that the defendant was able to say that there was no scientific evidence linking him to the murder, and that a killing could be said to be out of character with what was known of him, and quite a lot was. All those arguments were, however, for the jury. The evidence that he was the fraudster, the fact that he denied what could be proved, and, most of all, the evidence that he had regularly used (in three different handsets) the sim card which must have been stolen at the same time as the murder, all created the plainest possible case to answer. We have asked ourselves whether the state of the evidence in this case leaves us with a lurking doubt as to the safety of the conviction. We have reminded ourselves of Mr Robertson’s complaint that the police approached the investigation after a certain point with the assumption that the defendant was responsible, and that there were other enquiries which might have been made but were not. In an investigation of this size it is always possible to find some such possible enquiry. The evidence was long, detailed and thorough. Its assessment was for the jury and not for us, but we have no doubt that the jury was entitled to conclude that it demonstrated that the defendant alone had been the fraudsman, that his suggestions that his actions had been motivated only by trying to obtain evidence against gangsters was untrue, and that he must have been the killer. We are not left with any doubt about the safety of its conclusion.”

The fresh evidence on this appeal (i). Jonathon Bean

[92]At the time of the murder Mr Bean was living with his wife and child in a ground floor flat in a house at 14A Downshire Hill – which was on the same side of the street as no.9. Like the deceased’s house, Mr Bean’s flat was accessed via an outer door giving into a small hallway off which led an inner door giving access to the flat.

[93]Mr Bean’s evidence was that, in roughly the middle of the day in mid-February 2007 (Police records indicated that it was on 13 February - i.e. some nine months after the fatal events in relation to the deceased) he was packing up his flat in preparation for his and his family’s removal on 24 February 2007 to New York, where he had been transferred for his work. His wife and baby were at a friend’s house that day. He thought that his wife may have left the outer front door open. At all events, as he was packing up, he heard a rustling for some time in the hallway between the inner and outer doors. He opened the inner door, whereupon he saw a man wearing latex gloves, holding some of his (Mr Bean’s) mail, and carrying a knife.

[94]Mr Bean closed the inner door after less than a second. In the result, he did not get a good look at the man, but recalled that he thought he had dark skin. It was, he said, a very very quick look, and the hallway was dark (as the outer door was closed). When giving evidence, he was uncomfortable about venturing any description, believing that it would not be accurate. He recalled that he had said at the time that maybe the man had dark skin, but was not 100% certain about that, and had not been able to give a more detailed description. He said that the description that he had given to the Police at the time was the best that he could do when they had pushed him. At the time, he said, he had apologised for his lack of description. He was unsure because of the shortness of time in which he had had the man in view.

[95]The man (who did not have a Chinese accent) then spoke calmly through the inner door saying:

“We have been watching your house, if you call the police we will kill your wife and baby”

. Mr Bean listened further as the rustling in the hallway continued for some time. He was aware of the murder at no.9, and was therefore completely terrified. He went up to the mezzanine level of the flat to see if he could get out that way, but then decided (for self-preservation) not to try to get any further view of the man. When, about 20 minutes later, he was sure that the man had left, he had opened the inner door and found that the post was gone.

[96]Mr Bean reported the incident to the police at the time, expressing the view that it might be linked to the murder of the deceased some months earlier. It later transpired that one of the officers who dealt with his report had been one of those who had taken part in one of the initial searches at the deceased’s home.

[97]After the incident Mr Bean, his wife and baby never stayed at the flat again, but were put up by friends until their departure to New York. He had since found an email, dated 16 February 2007, in which he had said:

“I found the intruder with a knife going through our papers”

. He recalled that, on the day of the incident, he had been in contact with his banks to stop anything untoward happening to his accounts. He did not know if there had been any attempts, but he had not lost any money.

[98]Mr Bean said that he had discussed the deceased’s murder with the Police when he had reported the incident, as he had read in the press about the circumstances of the deceased’s death – namely that he had had his post stolen and had been murdered. He could not recall if he had made a statement to the Police, but had given his email address and telephone contacts.

[99]He had eventually returned from New York, and (in January 2014) had read about the Appellant’s case in an article in the press. What had struck him about the article was that the murder was connected to postal theft, and that (as reported) the defence was that there had been a postal theft gang operating. In those circumstances, he thought that it was strange that he had not been contacted and so he contacted the relevant journalist and, in February 2014, made a statement to the Appellant’s then solicitor.

[100]In cross-examination, he said that the incident had happened in the middle of the afternoon – albeit that Police records showed that he had called them at 8.50pm. By the time he reported it to the Police, he said, he had already contacted the relevant financial institutions, and had got his wife to do the same. The Police had come to the address of the friend where he, his wife and baby were staying, and he had given his account to them. It had, he said, always been his best recollection that the person was dark skinned, but it was hard to be sure because of the lack of light. He had had a brief glimpse of a glint of metal. He thought that it was a knife and that was why he had thought that what the man had said was more than an idle threat.

[101]The Police were adamant, he said, that the incident was not connected with the deceased’s murder and had tried to calm him down and to re-assure him. At the time, the Police did not seem that interested in the nature of the voice. He had not been sure then about the nature of the accent, and could not now accurately describe it – albeit there was a Police note, made at the time, that he had said that it was a London accent. Mr Bean said that the police had taken the view that the intruder had made threats the better to ensure his escape, and had classified the break-in as a theft. Mr Bean said that he was very concerned that the Police had said that the incident was not to do with the murder, and that that was because they already had the person who had done that.

[102]Police records confirmed that the Officer who had made an entry on 14 February 2007 about Mr Bean’s account was one of the Officers who had attended 9 Downshire Hill on 12 June 2006. (ii). Peter George Hall

[103]Mr Hall, who is gay, and a retired local councillor in his late 60s, now lives in Hornsea. He said that sometime in 2006 he had become aware that the deceased had been murdered. The first time that he had seen a photograph of the deceased was also at some point in 2006. It had been in the Camden New Journal or the Evening Standard. He had recognised the man in the photograph as being someone who he had seen on Hampstead Heath, which was a well-known cruising area for gay men (which Mr Hall had been visiting for many years). In the period between 1996 and 2006 Mr Hall would, on average, go to the Heath 3-4 nights per week – cruising from around 10pm until the early hours. By 2006 he was living in Highgate, and going to the Heath 1-2 nights per week. Part of the Heath was known as the spanking area. He could, he said, hardly recall a time (over that decade) when the man in the photograph had not been there.

[104]The man, said Mr Hall, was only there at night and would arrive at 10-11pm. He was always dressed completely in black – wearing a cap, waist length jacket, trousers and shoes. He never wore anything else. Initially, Mr Hall had thought that he was in his 60s. The man never deviated from the bench in the spanking area until it was time to go home. He would spank the bench with his paddle, or a belt, to attract like-minded people to that location. He also had an improvised cat o’nine tails with 10-12 cords.

[105]For the first two years, said Mr Hall, there was very little, if any, speaking between him and the man at all. People went there for action, not discussion. He had found the man to be very sophisticated. Some of their sessions, which had taken place privately in a deserted part of the Heath, had been more intense. The man had not had a regional accent, but had used old fashioned language. Mr Hall had known him as ‘Allan’.

[106]He thought that the man must have been local to visit so many times. On one occasion, the man had suggested going back to his place, but Mr Hall had not done so, as he had thought that the man might make a sexual advance to him, and he was not interested in him in that way. The man had said that he lived locally, and Mr Hall had seen him leave the Heath, with another, on two occasions, widely separated in time, in the broad period from 2004 to 2006. At the end of the night the man would hang around Jack Straws Castle. The persons he had left with were not black or oriental. They had left going in the direction of Heath Street.

[107]Mr Hall said he believed that the last time that he had seen the man, though he could not be precise, was sometime in late 2005 or early 2006. He was, he said, 95% sure of his identification of the man, who had a well-worn and craggy look and wore glasses.

[108]Mr Hall accepted that he had not gone to the Police in 2006. He did not, he said, buy newspapers, and did not (at that time) have access to the internet. He had heard only vague reports, and had not gone to the Police when he saw the photograph, because it had seemed to be an open and shut case. However, if there had been an appeal he would have gone to the Police. In 2016, he had seen an article in the Camden New Journal, had contacted the paper and, via them, solicitors acting for the Appellant – to whom he had eventually made three witness statements.

[109]In cross-examination, Mr Hall accepted that he had been in contact with the Police in the period between 2006 and 2016, and had had a number of opportunities to tell them about his identification of the deceased, but had not done so. There had been no point, he said, as the case was done. Nor had he mentioned to the Police that the man he had seen so regularly had suddenly disappeared – albeit that he (Mr Hall) had continued to go onto the Heath in 2006 – 2007. He accepted that in one of his witness statements he had said that he had not paid much attention to the man’s face (beyond that it was craggy). The man, he said, never wore anything other than a waist length black (not leather) jacket, a black shiny leather cap, dark trousers and dark boots. His paddle was leather - square and with a handle which was about 10” long. It would not appear that often. Nor did he produce the cat o’nine tails very often either – though it was easy to carry as it had no handle. The man would use that in their private sessions. He was a man of few words, without a regional accent. He had shuffled a bit while walking, but had not come across to Mr Hall as being physically frail. (iii). Michael Dunne

[110]Mr Dunne is an 86-year-old man who, in 2006, was living with his wife in Hampstead (where they had lived for many years) at an address which was about a 5-7 minute walk from the deceased’s home. He was aware of 9 Downshire Hill. It was, he said, a derelict building that stood out because it was in an upper-class area, and did not look right. He had understood that the person who lived there was a hermit/recluse with no friends. He had first read about the murder in the local newspaper. Mr Dunne said that about 4-5 weeks before the body was found (in his witness statement he had said 3-4 weeks) he had been walking home from the shops by a route that had taken him past no.9, in the vicinity of which he had encountered a man coming in the opposite direction. The man, who looked awkward, was carrying a piece of wood, which was new and about 6’ long by 2” thick. Mr Dunne stopped to let the man pass but, to his surprise, the man stopped at the gate to no.9, asked him to get out of the way, opened the gate and went into the garden.

[111]Mr Dunne said that the man had a Northern Irish accent. He was aged around 50, was about 5’7” tall - bald on top with dark hair to the sides. He did not wear glasses and had no facial hair. He was wearing a dark pullover, and dark trousers. Mr Dunne had not seen him before. They had spoken briefly – for possibly a couple of minutes. Mr Dunne said that he was concerned as to why the man was going in – as he thought that the occupant had no financial means. He had asked the man about the occupant’s welfare and the man had assured him that the occupant was hale and hearty. The man said that the occupant was in the book business.

[112]Mr Dunne said that there were two motorbikes in the front garden. They had been there for years. One was a large top of the range combination with a bespoke sidecar, and the other was a solo motorbike. Both looked as if they had been top of the range in their day. They had not been moved for a while and, said Mr Dunne, it would have been a struggle to get them out. The man nevertheless said that as little as 6-7 weeks before the occupant had been to Liverpool with the bike and sidecar. Mr Dunne said that he was amazed at that, because it was obvious that the bikes had not been moved for ages, and they were clearly not roadworthy. At the end of the conversation Mr Dunne said that he saw the man walk towards the house, but had not seen him go in.

[113]Mr Dunne said that, about 5-6 days after the body had been discovered, he had attempted to tell the Police about what had happened. He had told a Police Officer on duty at the front gate of the house. The Officer had taken him to a clear area and had fetched a lady Police Officer (who he thought had been in uniform) who he told what he had seen. There was no reaction, save that the lady had asked him to leave his details. However, he did not want to do that as he did not want the Police to come around to his house and upset his wife. The Officer had said that if he was not prepared to leave his details he was no good to them, and had walked off. She had not asked him if he could come to the Police Station. He had had no further involvement.

[114]Years later he had seen an article in the Camden New Journal about attempts for a re-trial in the case, and for people to come forward. He had contacted the newspaper, and had eventually been contacted by a solicitor, and had made a witness statement dated 23 August 2016.

[115]Mr Dunne was not cross-examined.

Fresh evidence and safety of conviction – principles to be applied

[116]Fresh evidence will only be admitted on the hearing of an appeal against conviction where the conditions contained in section 23 of the Criminal Appeals Act 1968 (“the 1968 Act”) are met. By s.23(2) the Court is required to have regard 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”

[117]In R v. Pendleton

[2002] 1 WLR 72

, at paras 16-19, Lord Bingham discussed the principles to be applied to a consideration of the effect of fresh evidence on a conviction. At para 17 he observed:

“The Court of Appeal is entrusted with a power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury’s deliberations and must not intrude into territory which properly belongs to the jury.”

On that basis, where fresh evidence is admitted, the question on appeal remains whether the conviction is unsafe. As to the approach to be adopted, at para 19 Lord Bingham continued:

“…First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence that it has heard, but save in a clear case is at a disadvantage in seeking to relate that evidence to the rest of the evidence tht the jury heard. For these reasons, it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”

[118]In McInnes v. HM Advocate

[2010] UKSC 7

, the Supreme Court considered the proper test to be applied in circumstances where there had been non-disclosure of material able to undermine the case for the Crown, or assist the case for the defence. It held that the test was two-fold: first, whether the material ought to have been disclosed and second, whether in all the circumstances of the trial there was a real possibility that the jury would have arrived at a different verdict. Lord Hope observed:

“The question which lies at the heart of it is one of fairness. The question which the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant’s Convention right, the jury’s verdict should be allowed to stand. The question will be answered in the negative if there was a real possibility of a different outcome – if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence.”

The Arguments on this appeal The Appellant’s submissions

The Arguments on this appeal

[119]On the Appellant’s behalf, Mr Peter Wilcock QC accepted that the fresh evidence related solely to the conviction for murder; that the evidence at trial linking the Appellant to the fraudulent use of the deceased’s identity and bank accounts was “compelling”; that the jury must have concluded that it was the Appellant who had made the telephone call[s] using ‘Handset 1’ and all the calls using the deceased’s SIM card; and that the jury were entitled to conclude, on the evidence, that the theft, identity takeover and murder were connected. However, he submitted, that was not the same as accepting that the “only rational conclusion” that the jury could draw was that the Appellant was the murderer. On the contrary, there were obvious reasons why whoever murdered the deceased might have sought to use another to use the property stolen in the way that it was.

[120]The fresh evidence, Mr Wilcock submitted, provided a powerful basis for the suggestion that the Appellant’s conviction for murder was unsafe. He variously argued that: i) The evidence of all three witnesses met the criteria for admission set out in s.23 of the 1968 Act. ii) There were no known reasons, other than genuine ones, for all three to come forward. iii) Albeit that the judge had warned the jury to be “careful about assuming that what any of the neighbours knew was the full extent of what a private and reclusive man did”, the evidence of Mr Hall and Mr Dunne potentially indicated that the deceased allowed more visitors to his premises than his neighbours were aware of, and prevented any safe inference that the Appellant was solely involved in the identity takeover. iv) Mr Hall’s account was plainly genuine, albeit that the Court would have to make its own judgement as to the correctness of his identification of the deceased. Whilst, on the one hand, the circumstances of that identification were less than ideal, and no sexual paraphernalia had been found at no.9, on the other hand, as far as the public were aware at the time the Police had got their man, Mr Hall was recognising someone who he had seen on many occasions, and someone who he knew as ‘Allan’, and his evidence thus provided a further, non-trespassing, category of potential killer, and one not directly involved in identity theft. v) The weight of the witnesses’ fresh evidence had to be judged against the background of the fact that there was no direct evidence of the Appellant’s guilt, that the jury had to exclude the involvement of anyone else in the fraud and the murder, and that there was evidence that more than one person must have been involved in the murder and identity takeover – namely the finding of the cigarette butts with the DNA of the unknown male on them; the unidentified fingerprints on the inside of the front door; the unidentified marks on the manuscript(s) in ‘Room 6’; the fact that the sleeping bag was in a bedroom on the second floor of the house when there was another bedroom on the first floor; the finding of a bottle of urine and copy of the Daily Mail dated 6 May 2006 in one of the upstairs rooms, when there was evidence that it was thought that the deceased was “probably not a Daily Mail reader”; the contrast between the violence used and the Appellant’s non-violent disposition; the fact that the murder had taken place in the back of the house when it was suggested that a confrontation had taken place at the front door; the fact that no blood was found in the hallway between the two front doors whereas clear blood patterning was found in ‘Room 6’; the unlikelihood, if not impossibility, of one person being able to move all the paper over the body – especially given Mr Carr’s evidence that the paper had been in that room all along; the amount of tree branches used to block the door; the evidence of Mr Hirson and Professor Xu excluding the Appellant as being the person who called the banks pretending to be the deceased; and the evidence of Mr Hirson that there could possibly have been a second person with the deceased when he had made the telephone call to HMRC on 8 May 2006 (when it was suggested that the deceased was a recluse and a hermit). vi) It was no surprise that the identity takeover had stopped after the Appellant’s arrest. That did not mean that the Appellant was the sole person involved - others involved would have stopped too. vii) The Crown’s case had depended on theories. However, the evidence of Mr Bean now showed that local postal thefts had not stopped. Rather, the attack on his premises had clearly been planned and was carried out by a man armed with a knife, who had threatened to do what the Crown had alleged against the Appellant – and all just five doors away. viii) The unusual circumstances of the case and the colourful nature of much of the evidence relied upon by the Appellant at trial maximised the Court’s “imperfect and incomplete understanding of the full process which led the jury to convict”. The Court should apply the Pendleton test, without reference to any subsequent glosses, but it would be “wise” for the Court to ask itself whether the evidence, if given at trial, might reasonably have affected the decision of the jury to convict – given the lack of any direct evidence against the Appellant, the reliance on circumstantial evidence, and the weaknesses of the case. ix) The fresh evidence increased the illogicality of the Crown’s case – the high point of which was the evidence of Mr Sullman. However, it would have been odd for the murderer to have removed the barrier to entry to the house. In any event, the suggested inference that the person seen by Mr Sullman was the Appellant (albeit that the Appellant himself excluded Gaz, Ah Ming and Xiao Dong from being that person) was dangerous as there were real differences as between Mr Sullman’s description of that person and the Appellant – e.g. that he had an English accent, was smaller than 5’ 8”, and had shoulder length hair. Equally, as touched on in the summing up, it would not have been sensible for the murderer to have been the person who spoke with Mr Sullman - as he had, up to that point, got safely away from the scene, and to have revealed himself to Mr Sullman, unless he was a risk taker, would have involved taking an unnecessary risk. x) Mr Bean’s evidence would have had a dramatic impact on the jury, as it showed continuing burglaries, and interest in the post, in Downshire Hill after the Appellant’s arrest, and the existence of another possible intruder to 9 Downshire Hill. In the result, the jury would have been slower to reject the contention that the Appellant was not the only person involved. Indeed, the jury’s conclusion that the Appellant was the sole person involved might have been undermined if Mr Bean’s evidence had been heard. xi) It also had to be recalled that the scenario in which the deceased may have been murdered was not entirely explained at trial. The ferocity of the attack, the sign of possible torture, and the unusual circumstances of the hiding the body (which posed considerable logistical issues) were not consistent with the disturbance of a burglary by an elderly man. Equally, if the motive was to steal information about the deceased, a number of identity documents were found in an upstairs bedroom which had not been used or stolen. xii) Mr Dunne’s evidence put someone behaving suspiciously at the house around the time of the murder – the more suspiciously if it was after the murder. That person had deliberately misled Mr Dunne about how active the deceased was. That gave colour to the evidence about the DNA found on the cigarettes, and may have led to a different decision by the jury. xiii) It was not disputed that the jury were entitled to proceed on the basis that there was a link between the theft and murder, but not to the extent that it followed that the Appellant must have killed the deceased. It was part of the danger of the case that the strength of the evidence against the Appellant depended on view to be taken of his (discursive) evidence about the events. The jury would have been less likely to conclude that the Appellant’s account was untrue, and to reject the reasonable possibility that more than one person was involved, if they had heard the evidence that was now before the Court. xiv) Part of the difficulty facing the Appellant at trial was that not only was his evidence as to the existence of Gaz, Ah Ming and Xiao Dong heard in a vacuum largely without any evidence confirming their existence, but that the circumstantial inferences sought by the Crown were also heard against a background maximising the reclusive nature of the deceased. However, the fresh evidence fundamentally undermined the Crown’s case by introducing other potential scenarios and candidates for involvement in the murder – even if the jury did not accept the Appellant’s denials of the extent of his involvement in the identity fraud. Hence the appeal should be allowed.

[121]Mr Wilcock made clear that he did not rely on the materials that the Appellant himself had put before the Court.

The Respondent’s submissions

[122]On behalf of the Respondent, Mr Duncan Atkinson QC reminded us that the test in Pendleton was considered by the Privy Council in Dial v State of Trinidad and Tobago

[2005] UKPC 4

, in which Lord Brown of Eaton-under-Heywood observed:

“The law is now clearly established and can simply be stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, always assuming that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case…..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.”

[123]Mr Atkinson also reminded that that test was itself considered by the Court of Appeal in Noye

[2011] EWCA Crim 650

, in which (at [31])

Lord Judge CJ observed:

“The responsibility therefore rests with this court. In reaching our decision we reflect on how best to examine the fresh evidence and its possible impact on the safety of the conviction, and test our analysis to ensure that we have reached the right conclusion…..we were not making an assessment based on the advantages of seeing and hearing the witnesses; equally we do not know which parts of the evidence impressed the jury, and which did not. All this is clear enough, and we recognise the difficulties which can face this court when it is assessing the impact of fresh evidence on the safety of a conviction.”

[124]Mr Atkinson then variously submitted that: i) The Crown’s case against the Appellant was that he was the thief and fraudster and that the murder had been committed because, at some point, he had encountered the deceased. ii) The jury were directed in clear terms (as summarised in [81] – [84] above) that they had to be sure not only that the Appellant was the sole thief and fraudster, but also had to be sure that he alone was responsible for the five areas of conduct which the judge identified (which included the complete rejection of the gangster defence) before they could begin to convict of murder. iii) The judge summed up all the factual points now made on the Appellant’s behalf (save in relation to the fresh evidence), but the previous constitution of the court were satisfied that the conviction was safe. iv) None of the fresh evidence began to undermine the jury’s assessment. v) It was accepted that Mr Dunne’s evidence was credible, and that there was a reasonable explanation for the failure to call him at trial. However, Mr Dunne was clearly uncertain as to the date of his encounter with the man, which may well have happened when the deceased was still alive, and had to be set against the background that there was evidence before the jury, from a number of the deceased’s neighbours, about seeing people in the grounds of the house, about motorbikes being in the garden, and about the deceased having previously been a keen motorbike rider. To that extent, therefore, Mr Dunne’s evidence was more of the same rather than something new. In any event, the man seen by Mr Dunne did not go into the house; the evidence was that the deceased himself did work inside the house and it would not have been unusual for someone to be delivering a plank; the description of the man was entirely different from the man seen by Mr Sullman; and was also entirely different from the description given by the Appellant of the three gangsters. vi) It was accepted that Mr Hall’s evidence was credible, and that there was a reasonable explanation for not calling him at trial – the question in his case was whether his identification of the deceased from a photograph, formally made ten years after the event, was accurate and reliable – especially given that he had only seen the man on Hampstead Heath at night and had not paid great attention to his face. The man described by Mr Hall was clearly not frail, whereas the evidence was that, by 2006, the deceased was frail and could not walk without a stick. There was no evidence at all that the deceased was gay. No relevant paraphernalia or clothing of the type described by Mr Hall was found at 9 Downshire Hill. The route that the man was said to have taken when leaving the Heath would be a non-direct route to Downshire Hill. The evidence from witnesses at trial was that, when out, the deceased always wore a very long black leather coat (whereas Mr Hall described a waist length jacket), and that he was very reluctant to allow anyone inside no.9. Mr Hall’s evidence did not provide a basis for establishing a credible candidate for the murder or the fraud. vii) It was accepted that Mr Bean’s evidence was credible and that there was a reasonable explanation for not calling him at trial. The failure of disclosure in relation to him had been inadvertent only – with the officer common to the two cases having only a limited role in the events in relation to the deceased, and the matter not being reported to the murder investigation. Likewise, the Police record of Mr Bean’s report did not refer to a knife, which might explain why the threat made by the man was treated as an empty one. viii) Mr Bean’s evidence had to be viewed against the background that the scientific evidence was that the fatal attack had taken place in Room 6, and that there was no evidence of an attack anywhere else. Equally there was evidence before the jury, from the Defence witness Mrs Dennis, of a chequebook being stolen in a similar way. It was the discovery of the death which had stopped the fraud, not the Appellant’s arrest. Given that the events described by Mr Bean took place some nine months after the murder, they would only be of real significance if truly similar, which they were not. Even if that was the case, the possibility of a copycat would need to be considered. ix) In any event, the man seen by Mr Bean was clearly different from the description of the man seen by Mr Sullman, and there was no room, on the Appellant’s account of events, for the involvement of that man – who did not fit the description given by the Appellant of the three gangsters either. It was the Appellant who had had the deceased’s SIM card throughout, and there was no evidence that anyone other than the Appellant was a beneficiary of the fraud, which stopped only when the Appellant left this country after the discovery of the body. x) In addition, the lengths gone to to conceal the body were for the clear purpose of allowing the killer to take advantage of the deceased’s death for as long as possible for the purposes of the fraud – which involved repeated visits to no.9 to collect items sent to that address (both at the fraudster’s request and otherwise), calls to Voicemail and to others to ensure that the death had not been (or would not be) discovered, and stopped when the death was discovered. As the court had made clear in the first appeal, there were always other lines of enquiry that might have been pursued. However, the connection between the fraud and the murder was inextricable, and there was simply no realistic possibility, on the evidence, of the participation in the murder or the fraud by the man seen by Mr Bean nine months later.

The Appellant’s reply

[125]Mr Wilcock re-emphasised that there was no direct evidence to incriminate the Appellant in the murder. He further submitted that: i) Mr Dunne’s evidence fitted into timescale and what the man had said to him was strange. On the evidence, the only person who could have carried out the work was Mr Carr, but he had last worked at the address towards the end of 2005. If it was not him, then who else was it and why were they lying? The other evidence about people being in the garden was very different. ii) As to Mr Hall’s evidence, it was floated at trial that the deceased may have been killed by someone who he had met on the Heath, and the wax burning may have been linked to an interest in BDSM. iii) The Officer who had taken part in one of the early searches at 9 Downshire Hill was the person who actually spoke with Mr Bean, and Mrs Dennis did not know at which point in the chain of mail delivery her chequebook had been stolen. iv) When considering the deceased’s frailty, it was important to remember that he had not long come back from a holiday in the United States.

Discussion

[126]The Crown’s case against the Appellant in relation to the murder charge was entirely circumstantial. Our task on this CCRC reference and appeal has therefore required us to look closely at the detailed evidence of all the circumstances which the jury had before them when making their decision as we evaluate the fresh evidence we heard de bene esse. It was not our purpose, in doing so, to find or follow the route by which the jury might have arrived at its decision: as Pendleton and subsequent cases make quite plain, that is an illegitimate approach to take on an appeal such as this. Our purpose, rather, has been to understand the nature and extent of the evidence bearing upon the particular decisions which the jury were called upon to make, in accordance with the full and careful directions of Ouseley J. If the new evidence which we heard on this appeal could not reasonably or sensibly have impacted upon that evidence, then it cannot be said that the new evidence “might reasonably have affected the decision of the trial jury to convict”.

[127]The key connection relied upon by the Crown at trial was between the (ab)use of the deceased’s handset and SIM card and attempts to access and mine the deceased’s various bank accounts, and the murder itself. As Mr Wilcock conceded on behalf of the Appellant, the evidence establishing the Appellant’s sole responsibility for using the deceased’s SIM card to make calls in Mr Chappelow’s name, along with accessing and attempting to control the deceased’s bank and savings accounts after the likely date of death on 8 May 2006, was compelling. The handset/SIM card, location and CCTV evidence demonstrating the Appellant’s unique involvement was very powerful.

[128]What emerges from the forensic analysis of the detail of the evidence which we have set out fully in this judgment, is the strength of the link between the activities undertaken by the Appellant and the death of the deceased. Many actions of the person using, or attempting to use, the deceased’s identity can only be explained or understood if done by someone who knew of the death and with an interest in delaying discovery of it. By way of example, there was a call on 31 May 2006 made from one of the Appellant’s handsets (Handset 2), but using the deceased’s SIM card, to EDF about a payment reminder which EDF had sent to the deceased’s address on 25 May, after his death (see paragraph 44 above); thereafter on 5 June a man purporting to be the deceased called EDF to set up a direct debit on one of the deceased’s accounts (paragraph 47 above). Similarly, on 7 June a call was made from another of the Appellant’s handsets (Handset 4) to the Council, using the deceased’s SIM card, asking to set up a direct debt for future payment of the deceased’s council tax (see paragraph 49 above). The person making such calls must have known that Allan Chappelow was dead, and must have intended that discovery of the body be delayed, or what other reason could there have been to discuss or seek to set up such direct debits? These are merely examples of the way in which the various elements of the detailed evidence combined to draw a unique connection between the Appellant and the death of Allan Chappelow. It is that unique and personal connection which was at the heart of this case.

[129]The jury were rightly directed that they needed to be sure about that unique connection before convicting the Appellant of murder. In returning their verdict, therefore, they clearly concluded that the web of activity undertaken by the Appellant in relation to the deceased’s identity and accounts was so thoroughly interwoven with the murder itself that he, and only he, could have been responsible for the latter. Our enquiry on this appeal has accordingly been directed to whether the new evidence is capable of disrupting the evidential web establishing the personal link between the Appellant and the murder.

[130]Mr Bean’s account was of a doorstep postal theft accompanied by a threat to kill made in the near vicinity of the deceased’s house some 9 months after the murder. Though doubtless very frightening to Mr Bean and his family, particularly given the murder the year before, there was nothing in the description of the perpetrator of that offence to connect him with any members of the gang described by the Appellant in his evidence at trial. In any event, there was no aspect of the incident described by Mr Bean which served to disrupt or dilute the evidence establishing a personal connection between the activities undertaken by the Appellant after 8 May 2006 and the murder. Our conclusion regarding the possible impact of Mr Bean’s account is bolstered by the fact that the jury heard evidence at trial from a neighbour of Mr Chappelow’s, Mrs Dennis, who gave evidence of a contemporary event of postal theft/fraud (see paragraph 66 above). They plainly rejected this as having any relevance to the central issue of the connection between the Appellant’s activities post-8 May and the murder.

[131]Mr Dunne’s evidence, the evident truth of which we fully accepted, likewise could not, in our view, have impacted on the evidence establishing the personal connection. We bear in mind the fact that there was evidence before the jury of different persons walking into the front garden of the property, out of curiosity or a desire to see if it was for sale, also of the deceased taking deliveries and carrying out repairs at the property himself. The possibility of unknown persons coming and going at the property evidently did not distract the jury in reaching its conclusion on the central issue.

[132]As to the evidence of Mr Hall, we do not doubt the truth of what he said about night-time activities on the Heath. However we agree with Mr Atkinson’s submission on behalf of the Crown that there is room for very considerable doubt about whether the man whom Mr Hall knew as “Allan/Alan” was the deceased. But even if the jury thought that the man described by Mr Hall might have been the deceased, again we fail to see how Mr Hall’s account could have impacted upon the evidence establishing the unique personal connection between the Appellant and the death of Allan Chappelow. Furthermore the jury had heard evidence indicating that another person(s) had been in the deceased’s house at some stage, including unknown DNA on the lock of the outer door and the presence of a number of cigarette butts with unknown DNA found in Room 7 at the house (see paragraph.65 above), and had plainly rejected this evidence as relevantly detracting from their conclusion.

[133]The evidence at trial sufficiently convinced the jury that the Appellant was solely and exclusively responsible for the activities involving the deceased’s handset/SIM card and their use in the identity theft and fraud after 8 May 2006, and that the connection between those activities and the death of Allan Chappelow established the Appellant as the only possible perpetrator of the murder. We cannot find any respect in which the evidence of the three witnesses which we heard at this appeal could have disrupted or diluted the unique connection between the Appellant and the murder established by that web of evidence. In our view, therefore, taking full account of all the circumstances of the trial, there was no possibility of a different outcome if the fresh evidence had been heard by any jury.

Conclusion

[134]As indicated above, we heard the new evidence de bene esse at this appeal. Having done so, we were satisfied that the evidence of all three witnesses was capable of belief (s.23(2)(a) of the 1968 Act), would have been admissible at the trial (s.23 (2)(c) and there was a reasonable explanation for the failure to call it (s.23(2)(d). On our analysis of all the evidence, however, we have come to the clear view that it would not afford any ground for allowing the appeal for the reasons we have given. We therefore do not admit the evidence.

[135]For the reasons given, we can see no basis for a conclusion that the new evidence would or might reasonably have affected the jury’s decision in this case. We are satisfied that the Appellant’s conviction is safe; accordingly his appeal is dismissed.