No:
200106173/X3-200106616/X3
Neutral Citation Number:
[2003] EWCA Crim 1966
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Friday, 6th June 2003
B E F O R E:
LORD JUSTICE AULD
MR JUSTICE SILBER
MR JUSTICE OWEN
- - - - - - -
R E G I N A
-v-
WAYNE DANIEL JONES
MATHEW JENKINS
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
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- - - - - - -
MR D AUBREY QC appeared on behalf of the APPELLANT JONES
MR R MARKS QC appeared on behalf of the APPELLANT JENKINS
MR P HARRINGTON & MR G WALTERS appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE AULD: On 23rd October 2001, before Pitchford J and a jury in the Crown Court at Swansea, the appellants, both aged then 16, were convicted of the murder of a 53 year old man called Leonard Proctor. The judge sentenced each of them to be detained during Her Majesty's Pleasure, specifying the periods under
section 82A
of the
Powers of Criminal Court (Sentencing) Act 2000
at nine-and-a-half years for Jones and 9 years for Jenkins. By leave of the Single Judge, both appellants appeal against conviction, and Jones also appeals against the specified period of nine-and-a-half years.
2.
The prosecution arose out of an incident that began on the evening of Christmas Day 2000 in the Miners' Arms public house, Trimsaran in South Wales. The prosecution case, in summary, was that towards the end of the evening, the two appellants followed Proctor out of the public house and, together, attacked him, causing him serious injuries which caused his death.
3.
The appellants ran what might be called modified cut-throat defences. Jones' case was that they had both been party to the assault on Proctor; each had inflicted violence upon him, but that they had not caused the serious injuries from which he died. He suggested that the fatal injuries could have been caused subsequently by Proctor falling or wandering into the road and being struck by a vehicle.
4.
Jenkins' case was that he had been present and close by when Jones attacked Proctor, but that he, Jenkins, neither took part in the attack, nor encouraged it. On the contrary, he had twice called on Jones to stop his violence.
5.
There is broad agreement as to what led to the initial attack on Proctor. Jones, with his girlfriend, NS, and Jenkins with his girlfriend, Lindsay Powell, were drinking and talking in the bar of the Miners' Arms. Also drinking there that night was Gavin S, the brother of N, and another youth called Matthew Roberts. Sitting in his usual seat was Proctor who, as the evening wore on, became rather drunk.
6.
In the course of the evening the appellants fell to talking about an incident, many years before, in which, according to Jones' girlfriend, N, Proctor had indecently assaulted her. Jones decided that he would, that night, exact some revenge on Proctor, by giving him a beating.
7.
At about 9.45 pm Proctor left the public house to go home. The two appellants followed him. There is no doubt that shortly afterwards someone assaulted Proctor a short distance away from the public house. No one other than the appellants saw what happened. On both their accounts at trial, Jones punched him and did so in the presence of Jenkins. On Jones' account, Jenkins punched him too. Whoever did what to Proctor, it caused him to bleed. Some of his blood was later found on the road.
8.
It is common ground that, shortly after that assault, both appellants returned to the public house. It is also common ground that, about 10 minutes or so later, they both left again, and found Proctor still only a short distance away from the public house. Together they walked him a few 100 yards up the road. They stopped in the vicinity of a house called Glyncoed. There, one or other, or both of them, assaulted Proctor for a second time. Again, there were no eyewitnesses to the assault but the two of them. According to Jones' account at trial, Jenkins head-butted Proctor. According to Jenkins' evidence at trial, Jones punched him to the ground and then, when Proctor was on the ground, kicked him and stamped on him.
9.
There was disagreement between them at trial about the severity of Proctor's injuries after the second attack. Jones maintained that they were not serious and Jenkins acknowledged that they were.
10.
The prosecution case was that this second attack on Proctor caused very serious injuries and further bleeding. A considerable quantity of Proctor's blood was found on the driveway of Glyncoed, where his body was found on the following morning. There was also blood on a brick pillar and on a kerb stone, which had also come from Proctor.
11.
There were also signs of blood on Jenkins' boots and trouser bottoms when they were recovered from him following his arrest, which indicated his closeness to, though not necessarily his participation in, one or other of the attacks on Proctor.
12.
The two appellants left Proctor on the ground, in or in the vicinity of the driveway to Glyncoed, and returned again to the Miners' Arms. There Jones heard that another youth in the bar had, in his absence, been pestering his girlfriend, N. He began to shout out and fight with the youth, as a result he was evicted from the public house.
13.
The events of the night, so far as they are relevant, continued with Jones, N, her brother, Gavin, and the third youth, Matthew Roberts, walking together along the road away from the public house. Jenkins, it seems, went home separately in someone's car. The four, as they walked along the road, were noisy and argumentative, so much so that Mrs Ruth Rees, who lived at a house en route and had gone to bed, was disturbed by them. On looking out of her bedroom window, she saw, in the darkness, a youth and a girl walking in the middle of the road and two youths on the pavement. Because of the darkness she could not, and was not asked to, identify them, though she gave some descriptions of them and their clothing which do not matter for the purpose of these appeals.
14.
What does matter, in the case of Jones' appeal, is the conversation that she said she saw and heard. One of the two youths on the pavement shouted: "I don't care if I go down for murder, I don't care." The second of the two youths on the pavement said: "Look I've got blood on my hands". He then turned towards the couple in the middle of the road and shouted: "Wayne, Wayne, can I go to your house to get this off?" The youth with the girl in the middle of the road said "yes". The significance of that evidence was that it could suggest that one of the two youths on the pavement was acknowledging his responsibility for the fatal attack on Proctor and that it could not have been Wayne Jones. That is because he was the youth with the girl in the middle of the road, who had been so addressed by the second youth on the pavement.
15.
As we have said, the following morning Proctor's dead body was found in the driveway of Glyncoed. The post-mortem showed many serious injuries that could have resulted from heavy punches and or kicks and/or by blows from a blunt object. The injuries were to the head, including several fractures of the left jaw and the larynx, to the chest, including fractures of the ribs, and to the arms.
16.
The pathologist was unable to say precisely what had caused the various injuries, other than that it was a blunt object or objects, for example, a fist or footwear. He said, in cross-examination, that some of the head injuries could have resulted from a bang on the pavement, and that some of the injuries could have resulted from a glancing blow from a passing vehicle.
17.
On arrest, neither appellant produced to the police the clothes that they had been wearing at the time of the attacks on Proctor; they produced others.
18.
In interview, Jones gave an account, which he was broadly to repeat in his evidence at trial. Jenkins, on the advice of his solicitor, declined to answer any of the police officers' questions in their interview of him.
19.
Jones, in his evidence, gave the following account. He and Jenkins decided in the Miners' Arms to follow Proctor when he left and give him, as Jones put it, "a couple of slaps". They followed him out, and each of them punched him twice, not hurting him badly. They returned to the public house. Ten minutes later, and without saying why, Jenkins went outside. He, Jones, followed him. They found Proctor, and together walked him up the road. When they reached the vicinity of Glyncoed, Jenkins, without warning or reason, head-butted Proctor in the face. He, Jones, let go of Proctor, who fell to the ground. Jenkins then propped him up against the wall. He, Jones, did not assault him at all on this occasion.
20.
They ran back to the Miners' Arms, where he and Jones had a fight with a youth who had been pestering his girlfriend, N.
21.
Later, as he walked along the road on the way home with N, her brother, Gavin, and Matthew Roberts, they were a bit noisy, talking about his fight in the public house. He could not understand how Mrs Rees could have heard one of them comment about going down for murder.
22.
Jenkins too gave evidence notwithstanding his earlier silence in interview. This is what he said. In the Miners' Arms Jones said that he was going to teach Proctor a lesson for what he had done to N. When Proctor left the public house, Jones followed him out. He, Jenkins, followed Jones. They caught up with Proctor. Jones punched him two or three times. He, Jenkins, did not hit him, and he told Jones to stop it.
23.
They returned to the public house. Ten minutes later he left in order to help Proctor. This time Jones followed him. They helped Proctor along the road for a while and then Jones attacked Proctor again. He punched and kicked and stamped on him. He, Jenkins, took no part in the attack and eventually managed to pull Jones away. By that stage, Jones' shirt was covered in blood and he took it off.
24.
He, Jenkins, said that, when he finally left for home that night, he could not see Proctor where they had left him, propped against the wall.
25.
Mr David Aubrey QC advanced three grounds on appeal on behalf of Jones, all complaints of misdirection by the judge. The first concerned his treatment of the evidence of Mrs Rees who had heard the noisy quartet, including Jones, walking away from the Miners' Arms that night. Mr Aubrey submitted that her evidence, on the face of it, indicated that the first of the two youths on the pavement, the one who had made the self-inculpatory remark about not caring if he went down for murder, was not Jones. Jones was the youth in the middle of the road with a girl, whom the second youth on the pavement had addressed as Wayne - Jones' first name. That, and other aspects of her evidence, he submitted, suggested that if those self-inculpatory words were said, they were said by either Gavin S or Matthew Roberts, not Jones.
26.
It appears that prosecuting counsel, Mr Patrick Harrington QC and Mr Aubrey were at one about that. Although Mr Harrington commented to the jury in his closing speech that Mrs Rees' evidence might have been wrong. Apparently she was an impressive witness, but Mr Harrington did not concede her accuracy. Also, Jenkins' counsel, Mr Richard Marks QC, relied on her evidence in suggesting to the jury that either Gavin S or Matthew Roberts may have been involved in a further and fatal attack on Proctor.
27.
Despite the unanimity of counsel at the trial as to the exculpatory effect, so far as Jones was concerned, of Mrs Rees' evidence, the judge did not make that point to the jury. On the contrary - and this is Mr Aubrey's complaint - he invited the jury to consider which of the three youths may have made the self-inculpatory remark, S, Roberts or Jones. He made plain its significance, certainly as to Jones' admission of only modest violence, that the maker of the statement knew he had caused Proctor serious and potentially fatal injuries.
28.
This is how the judge put the matter to the jury, in two of the main passages in which he focused on this evidence. At page 57 D to E of the first transcript, he asked them:
"Were these words spoken? If it was Waynes Jones and he was so upset as to be giving the impression of being in tears and talking about going down for murder, why was he speaking in that way?"
The judge returned to the point at page 61A to D of the second transcript:
"I do realise... that I have spent some time analysing the evidence relevant to the walk home and the reason for that is that it has to be faced at one time or another it has been suggested that Matthew Roberts, Gavin S and Waynes Jones was the individual who made the remark about going down for murder. Only if you were sure that the evidence, on careful analysis, establishes that, first, the words were spoken, secondly, that it was Wayne Jones who uttered them and, thirdly, that when he did so he cannot have been referring to a fight with Mark Powell [that is the youth in the public house] could you regard this as evidence relevant to his case. But if you are sure that is the proper conclusion, it is relevant, is it not, to the question what knowledge did he have of what had happened to Leonard Proctor."
29.
Mr Harrington submitted that, in those passages of the judge's direction, and generally in his treatment of this evidence of Mrs Rees, he was correct. He made two points. First, Mrs Rees was looking down through a window on a dark night. There was clear scope, he submitted, for her to be mistaken as to who said what to whom. Second, he maintained that it was difficult to see who else of that quartet but Jones could have made the remark "I do not care if I go down for murder". There had been no evidence or evidence-based suggestion that either Gavin S or Matthew Roberts had been involved. The only one present of the three, who had in fact been involved in an attack on Proctor, was Jones.
30.
In our view, this was a misdirection and one capable of causing significant and unfair prejudice to Jones' defence, which, as we have said, was not a denial of any violence to Proctor, but a denial of fatal violence. Mrs Rees was an independent witness in a case where, on the critical issue for the jury - who did what - independent witnesses were thin on the ground.
31.
Of course, Mrs Rees may have misheard what was said or have confused who said what to whom. Or it may have been, as at least three of the four road walkers said in evidence, that the reference was not to the attack on Proctor, but to the fight that Jones had just had in the public house with Mark Powell.
32.
Whatever the possibilities, it is unfortunate that the judge left to the jury one possibility adverse to Jones that the effect of her evidence excluded, if the jury accepted it.
33.
The second ground of appeal advanced by Mr Aubrey on Jones' behalf is that the judge failed to warn the jury that the evidence of Jenkins, a co-defendant running a cut-throat defence, should be treated with caution.
34.
Certainly the judge's summing-up contained no such conventional warning to alert the jury to the danger of accepting possibly self-serving evidence of one defendant incriminating a co-defendant.
35.
Mr Aubrey, with some initial diffidence, having regard to the case of
R v Burrows
[1999] 2 Crim LR 48, CA, submitted that some warning of this sort should have been given in accordance with the general guidance given by this Court in
R v Cheema
(1994) 98 Cr App R 195, 204.
36.
Here, as it happens, the defences are not cut-throat in the full sense because Jones was saying that their combined violence was insufficient to cause death, whereas Jenkins maintained that all the violence had come from Jones and that it was sufficient to cause death. Evidence of Jenkins against Jones was crucial. The evidence of Jones against Jenkins was not so crucial.
37.
Mr Harrington submitted that the approach in
Burrows
is to be preferred to that in
Cheema
in the circumstances of this case, because
Cheema
was not a direct cut-throat case, whereas
Burrows
was. Here, he characterised the defence of each appellant as: "I did not do it, you did."
38.
Mr Harrington also submitted that the judge's general directions to the jury as to how they should approach the evidence in this case sufficed in the circumstances. He referred to: the judge's direction, at page 9G to H in transcript I, as to the need for separate treatment of the cases for and against each defendant; to his general direction, at pages 6F to 7D of transcript 1, as to the need to consider the credibility of each witness in the case and whether it is self seeking or given to protect or to reflect badly on one defendant rather than another; and to his direction at page 9B to C of the first transcript, as to the need for the jury to take the same care in their consideration of the evidence of each of the defendants as they did in respect of any other witness in the case. Those three directions, submitted Mr Harrington, taken together, were sufficient for the purpose.
39.
Whether or not the defences are "mirror-image" cut-throat defences, the law, since
R v Prater
(1960) 44 Cr App R(S) 83, CA, has been that some such warning should normally be considered and given.
Burrows
was a case in which, as Judge LJ, giving the judgment of the Court said, "the difficulty facing the trial judge was somewhat stark". Any warning he might have given applied equally to each of the two co-defendants, whose cut-throat defences were almost a mirror image of each other. Each had given evidence casting all possible blame on the other. It may be, as Judge LJ said, that within the confines of that particular case, the trial judge could not warn the jury to approach the evidence of each defendant with care because he had an axe to grind, without indicating to the jury that he had formed an adverse view about the way in which it should be approached by the jury. Though, why that was so, even in the particular circumstances of that case, is not readily apparent to us.
40.
A judge, even in a case of a mirror-image cut-throat defences, in the separate interest of each defendant, should be able to tailor a warning about the evidence of each against the other in a way that would not indicate that he, the judge, had formed an adverse view as to the defence of one or the other or both. Even though the cross allegations are inextricably bound up in the defences of each, it is for the judge, in a neutral way, to give the jury such assistance as he can in their evaluation of the credibility of the evidence of each defendant as it is of that of all other witnesses in the case, whether for the prosecution or the defence.
41.
We see no reason to depart from the approach of this Court in
R v Knowlden & Knowlden
77 Cr App R 94
, and confirmed by it in
Cheema
, that a judge, in exercising his discretion as to what to say to the jury should at least warn them, where one defendant has given evidence adverse to another, to examine the evidence of each with care because each has or may have an interest of his own to serve.
Cheema
was, as Mr Aubrey has observed, a cut-throat defence.
42.
There was also, as Mr Aubrey commented in argument, a particular need for some such warning in this case, where Jenkins, unlike Jones, had refused to answer questions in interview and was therefore able, if he wished, to tailor his defence to the facts in evidence.
43.
In our view, the failure to give such a warning was a serious omission and unfairly prejudicial to Jones' defence, and also, though possibly to a lesser extent, to that of Jenkins. Accordingly, we do not consider that the general directions as to evidence of the judge to which Mr Harrington referred us were sufficient for the purpose.
44.
Our attention has been drawn to current guidance of the Judicial Studies Board in the form of a note to its specimen direction No 26, which advises a form of warning to a jury where one defendant has given evidence which may have an adverse effect on a co-defendant. The guidance in the note is that such warning should not be given where co-defendants have given evidence against each other. The authority given for that proposition is
Burrows
.
45.
It follows from what we have said that we consider that no such general principle can be extracted from the case of
Burrows
, where it is plain from Judge LJ's judgment that the Court was heavily influenced by the particular facts of that case.
46.
Mr Aubrey has ventured an approach, which may be appropriate in many or most cases where a trial judge has to consider what if any such warning to give where co-defendants have given evidence against each other. It seems to us to accord broadly with the general observations we have made about the principles derived from
Knowlden & Knowlden
and
Cheema
, subject always of course to what justice demands on the particular facts of each case.
47.
Mr Aubrey suggested that a judge, when dealing with the case against and defence of each co-defendant, might consider four points to put to the jury - points that would not offend any sense of justice and certainly would not cast the judge in the light of one who has formed an adverse view against either or both co-defendants. First, the jury should consider the case for and against each defendant separately. Second, the jury should decide the case on all the evidence, including the evidence of each defendant's co-defendant. Third, when considering the evidence of co-defendants, the jury should bear in mind that he or she may have an interest to serve or, as it is often put, an axe to grind. Fourth, the jury should assess the evidence of co-defendants in the same way as that of the evidence of any other witness in the case. That seems to us to be a useful - and suitably focused - approach when judges are faced with this particular problem, and we commend it.
48.
The third and last ground of appeal relied upon by Mr Aubrey for Jones is that the judge, in his summing-up, wrongly indicated that the defence suggestion that a road traffic accident may have caused the fatal injuries was unfounded. It will be remembered that the pathologist's unchallenged evidence was that some of Proctor's injuries could possibly have resulted from a glancing blow from a passing vehicle.
49.
The judge, in dealing with this suggested possibility said this to the jury at pages 15F to 16B of the first transcript:
"The second possibility which Mr Aubrey raised was the passing car. Suppose you regard it as a realistic possibility that Mr Proctor wandered into the road and was struck by a car, that would not necessarily be the result of the four blows admitted by Wayne Jones and the headbutt he alleges against Matthew Jenkins and there would be no way of knowing what further injuries Mr Proctor may have suffered as a consequence of such a collision. If this were the situation, therefore, you would not be able to find that the physical attack by the defendants, or either of them, made a significant contribution to death and you would have to find them both not guilty of any offence. You will appreciate, however, that there is no evidence that there was such a collision and there is evidence from Matthew Jenkins that Mr Proctor was physically beaten in a way which would account for all his injuries. It is only if you accept the possibility that only five blows were delivered that these questions arise at all."
Later, when dealing with the cross-examination of the pathologist the judge said, at page 73F to H of the second transcript:
"Dr Davidson described to you his overall impression of what had happened to Mr Proctor and dealt with each of the possibilities in the main areas of injury. And having heard all the evidence, not just the medical evidence, you will have to come to a conclusion whether he was subjected to a severe beating or to a maximum of possibly five blows, all other injuries being caused by stumbling, falling about and crawling."
50.
Mr Aubrey submitted that those directions did not do justice to the pathologist's and other evidence of the possibility of a road traffic accident having caused the fatal injuries: first, in the emphasis that there was no evidence of it; and second, by putting forward a misleading, as Mr Aubrey suggested, antithesis between injuries caused by deliberate violence and those capable of having been caused by stumbling, falling about, or crawling. That is, he made no mention in that second passage of the further possibility, unevidenced or not, of a glancing blow from a vehicle.
51.
Mr Aubrey suggested that the judge should have at least reminded the jury: first, of some evidence of an unexplained scuff mark on the pavement and coins in the gutter where Proctor's body was found; second, that Jenkins' account might be self-serving in this context, particularly given the judge's remarks at pages 15F to 16B of the first transcript that we have set out; and third, of the pathologist's evidence.
52.
Mr Harrington, in reply, submitted that the judge's direction about this was not only fair but generous. It was, he said, correct that there was no evidence to support such a possibility.
53.
It is to be noted that shortly before (at pages 72H to 73B of the second transcript) the passage containing the misleading antithesis of which Mr Aubrey complained, the judge reminded the jury of the pathologist's concession of the possibility that some of the serious injuries could have been caused by a passing vehicle. And, in our view, the evidence concerning the scuff mark and the coins were, at best, neutral and of very limited value as indicators of the possibility of Mr Proctor being a road traffic fatality.
54.
Perhaps the most serious part of this complaint is that the judge, in seemingly playing down this possibility, resorted to the evidence of Jenkins to scotch it, without, as we have said, having warned the jury to treat his evidence with caution for the reasons we have mentioned in relation to Jones' second ground of appeal.
55.
If this third ground had stood on its own we would not, however, have regarded it as sufficient to render Jones' conviction unsafe. But, for the reasons we have given, the first two grounds individually and cumulatively are, in our view, sufficient to render his trial unfair and his conviction unsafe.
56.
We turn now to the appeal of Jenkins. The sole ground upon which Mr Marks, on his behalf, relied is that there is fresh evidence from a custodial officer that Jones, whilst awaiting trial, told her of his responsibility for this attack on Proctor and exonerated Jenkins. We have heard evidence from Mrs Susan Pearce, a custodial officer at the material time in the Young Offender Institution in which both appellants were placed on remand. We have heard that evidence with a view to our considering whether to "receive" it under
section 23(1)(c)
of the
Criminal Appeal Act 1968
, as amended, and, contingently on our doing so, with a view to considering whether the evidence, if given at trial, might reasonably have affected the jury's decision to convict.
57.
In her evidence Mrs Pearce has given an account of how, on three occasions in the course of her service at the Young Offender Institution, she had a conversation with Jones in which he volunteered information about the attack on Proctor. She has said that, on each occasion, he gave her the following account. He decided that he was going to teach Proctor a lesson because he was a pervert. He followed him out of the public house, punched him to the ground and then kicked him. Jenkins had followed him out of the public house and had tried to stop him. He did not stop. They both picked Proctor up but, because they had both been drinking he fell down again. He, Jones, then kicked him and stamped on his head. He had only wanted to teach him a lesson; he had not intended to kill him.
58.
Mrs Pearce also said that she had asked Jones why Jenkins was also on remand charged with murder. Jones replied that Jenkins had nothing to worry about; he had played no part in it; and he had only been involved because the police had found blood on his clothes.
59.
Mrs Pearce has explained why she did not come forward with this information before the trial. She said that she had believed that Jones would give the account at trial that he had given to her. And she said that she had also believed that he would possibly not be convicted of murder and that Jenkins would be acquitted completely, and that, accordingly, her evidence would not be required.
60.
It was only after she heard of the convictions that she felt that she should come forward, and did so a short time afterwards by making a witness statement to Jenkins' solicitor. Mrs Pearce had told no one in the Young Offender Institution before then of what Jones had told her. She should have done so, to comply with the rules of procedure in the Institution covering such information imparted to a custodial officer.
61.
When she learned, after the convictions, that Jones had not said in evidence at the trial what he had told her, namely that he alone had assaulted Proctor and that Jenkins had had nothing to do with it, she decided to make a statement about it to Jenkins' solicitor. She did that after seeking and obtaining permission from her unit manager, Miss Clare Marie Parkes, to take time off from work to do so.
62.
Mrs Pearce's evidence accorded broadly with the witness statement that she had made to Jenkins' solicitor. However, some time early in 2002, she decided to withdraw that statement, and she wrote to Jenkins' solicitor saying so. On her evidence to the Court, which is supported by that of a number of colleagues and superior officers who Mr Harrington called to give evidence, she took that course because of the invidious position in which she felt it had put her in relation to Jones and Jenkins, who were back in the section of the Institution in which she worked. Looking at it with hindsight she felt that she had been manipulated. She spoke to Miss Parkes in a high state of distress and told her that, for that reason, she wished to withdraw the statement.
63.
According to Mrs Pearce, she did not tell Miss Parkes or anyone that the statement was not true. None of the witnesses called by Mr Harrington has suggested to the contrary, none that is, save Miss Parkes. In her evidence, Miss Parkes had no independent recollection of the matter and, when prompted by her witness statement, made some months after the events, said that Mrs Pearce had told her that Jenkins, not Jones, had told her what she had spoken about in the statement. In cross-examination by Mr Marks, she acknowledged that she may have been confused about this attribution when she made her statement.
64.
At all events, Mrs Pearce was firm in her evidence to the Court that she had never said to Miss Parkes that her witness statement had been based on what Jenkins had told her. It had been based, she said, on what Jones had told her and in accordance with the evidence which she gave to this Court.
65.
In considering in the words of
section 23(1)
of
the 1968 Act
, whether to "receive" the evidence of Mr Pearce and, if so, whether to allow Jenkins' appeal, we apply the
Pendleton
test, namely whether her evidence if given at the trial, might reasonably have affected the jury's decision to convict.
66.
In our view, the evidence of Mrs Pearce is capable of belief. Whether it would have been believed, if called, or would be believed by a jury on a re-trial, when considered alongside the sort of evidence Mr Harrington has deployed in this hearing, is not for this Court to say. But, having heard her and all those witnesses, we are firmly of the view that it is capable of belief.
67.
We are also of the view that Mrs Pearce's evidence may, and does, afford a ground for allowing the appeal of Jenkins, since it is clearly highly material to the central issue going to his guilt or innocence. It would have been admissible at the trial and, in our view, Mrs Pearce has given a reasonable explanation for not coming forward with it before the trial.
68.
All the factors in
section 23(2)
of
the 1968 Act
going into the exercise of our discretion whether to receive this evidence are therefore satisfied. For those reasons, we do receive it and, on the strength of it, allow the appeal of Jenkins also.
69.
Accordingly, we allow both appeals against conviction and we invite the submissions of counsel as to what consequential order should flow from that. In particular whether there should be an order for a re-trial.
(re-trial)
70.
LORD JUSTICE AULD: We direct a re-trial in both cases. The fresh indictment should be preferred within 2 months of the date of this order and the appellant be re-arraigned on the fresh indictment within 2 months, I think, thereafter. The appropriate order would be for the trial to take place on the same circuit although not necessarily at the same Crown Court. The question arises then, Mr Marks, Mr Aubrey about custody.
71.
MR MARKS: We have discussed with the prosecution and, although in due course we would wish to make an application for bail, which we gather the Crown may not wholly be unsympathetic to, there are logistical difficulties in pursuing such an application today, because of conditions that the Crown would want, particularly with regard to accommodation. In those circumstances, we feel the better course would be for such an application to be pursued at the Crown Court rather than here my Lord.
72.
LORD JUSTICE AULD: When you get there.
73.
MR MARKS: Yes.
74.
LORD JUSTICE AULD: In the meantime to remain in custody.
75.
MR MARKS: I think so, because the Crown in particular would want to be satisfied about any address at which the defendant may reside and I think it is going to be difficult to resolve to the satisfaction of the Crown today.
76.
MR AUBREY: My Lord Wayne Jones was granted bail as your Lordships know. One of the conditions was a condition of residence well away from the Trimsaran area. On enquiries made overnight, that address is no longer available to Mr Jones, but there is another address which is available at Cross Quays, Newport. The Crown will not have had a chance to check that as yet. But may we respectfully invite your Lordships to consider granting the appellant bail, with a conditions subject to the address being satisfactory to the Crown, and if it is found that it is not then appropriate applications can be made before the Crown Court.
77.
LORD JUSTICE AULD: Would the Crown Court have jurisdiction before the matter gets back to them?
78.
MR AUBREY: It would not, we just make sure we get back there as quickly as we can.
79.
LORD JUSTICE AULD: I think the order that I made may be wrong. I said that the indictment should be preferred within 2 months and arraignment within 2 months thereafter. It should be an arraignment within 2 months should it not, Madam Associate? I am told I was wrong. There should be an arraignment preferred and arraigned within 2 months of the date of the order. While we are talking about mistakes, my direction that the matter should be retried on the circuit was right but not sufficient, it should be referred to the presiding judge of the circuit to direct the court at which it should be tried.
80.
MR AUBREY: I think we all think that provisionally it may be sensible if the trial proceeds somewhere other than Swansea. That can be arranged with the presiding judge.
81.
LORD JUSTICE AULD: Representations can be made to the presiding judge. What about Mr Aubrey's suggestion about bail?
82.
MR HARRINGTON: I do not want to the take a stance. When the first trial was aborted, we were concerned about the question of accommodation, as my learned friend knows there was a serious breach of bail, when Jones was on bail on the last occasion. We want to satisfy ourselves that the accommodation is appropriate. My Lord, might I undertake to lodge the fresh indictment quickly. I would arraign on time. We will arrange that the case is listed within the next week or so.
83.
LORD JUSTICE AULD: That would probably be the best course, would it not Mr Aubrey?
84.
MR AUBREY: As long as it can be done expeditiously.
85.
LORD JUSTICE AULD: There is no reason why the indictment could not be preferred within a day or so. Once preferred the Crown Court has jurisdiction.
86.
MR HARRINGTON: It has.
87.
MR AUBREY: That is perfectly satisfactory.
88.
LORD JUSTICE AULD: That is the order we make that both appellants will be remanded in custody. Then it is a matter for the Crown Court, any different order made once the matter is back within the jurisdiction.
89.
Before concluding we would like to thank all counsel and those behind them for the assistance given in this case not only in the oral representations but the documentations. It has all been very helpful.