Case No: 2006/00331/D3 
Neutral Citation Number: [2007] EWCA Crim 3052
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Monday, 26th November 2007
 
B E F O R E:
 
LORD JUSTICE MOORE‑BICK 
MR JUSTICE WILKIE
THE RECORDER OF CHESTER 
(sitting as a judge of the Court of Appeal, Criminal Division) 

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R E G I N A 

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CHRISTOPHER MACIAN JONES
 
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Mr G Elias QC and Mr ARF Vines appeared on behalf of the Applicant 
Mr R L Thomas QC and Ms S Ferrier appeared on behalf of the Crown 
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J U D G M E N T
1.	LORD JUSTICE MOORE-BICK:  On 19th December 2005 in the Crown Court at Cardiff, before the Recorder of Cardiff, His Honour Judge Griffith Williams QC, the applicant, then aged 21, was convicted of murder.  On 21st December 2005 he was sentenced to life imprisonment, with a minimum term of 13 years.  Also on 21st December 2005 the applicant's brother, Stewart Jones, then aged 31, having earlier pleaded guilty to the murder, was sentenced to life imprisonment with a minimum term of 15 years.
2.	The applicant applies for leave to appeal against conviction, his application having been referred to the Full Court by the Single Judge.
3.	The applicant, Christopher Jones, is one of three brothers: Stewart, who is known as “Sam”, Christopher, the applicant, and Matthew.  Stewart Jones was referred to throughout the trial as "Sam" and we propose to do the same.
4.	The deceased, Mrs Shirley Oliver, had a grown‑up daughter Stephanie who had some time previously been in a relationship with Matthew Jones.  It appears that during that relationship Matthew had paid for some repairs to her car and may not have been reimbursed for them.
5.	On Friday 4th February 2005 Mrs Oliver went out for the evening, as did Sam and the applicant.  Towards the end of the evening they were all at the same nightclub.  At about 4.0 am CCTV cameras outside the nightclub recorded her, the applicant and Sam walking to a car park, where they all got into the applicant's motor car and drove off.
6.	About half an hour later, Mrs Oliver's body was seen lying in a side road.  The police were called, but at the time they arrived, which was about 5.30 am, she was dead.  Her neck had been broken.
7.	Meanwhile, the applicant and Sam had gone to Sam's flat and, after changing their clothes and showering, had gone to a garage, where they were again recorded by a CCTV camera.  The applicant then drove to a shrubby area, where Sam hid Mrs Oliver's handbag.
8.	The applicant and Sam were both arrested and on 11th February were interviewed.  Subsequently, they were both charged with the murder of Mrs Oliver.
9.	In due course Sam admitted that he had killed Mrs Oliver and on 7th September 2005 he pleaded guilty to her murder.
10.	The applicant did not dispute that Sam had murdered Mrs Oliver, but he denied having been a party to the crime.  He was interviewed on no fewer than eleven occasions and in the course of those interviews he described how a row had broken out between Sam, who was sitting in the back seat of the car, and the deceased, who had been sitting in the front passenger seat, over the outstanding amount due in respect of the repairs that Matthew had carried out to her daughter's car.  The applicant said that Sam had put his arm around the deceased's neck, strangling her, while he, the applicant, was driving.  The applicant stopped the car in a narrow lane and pulled the lifeless body (as he then believed it to be) from the car.
11.	The applicant originally told the police that he had lent his shoes to Sam, but later he admitted that he had been wearing them. He admitted that he had lied about that because he was worried that there might have been blood on them. 
12.	In the applicant's tenth interview, having had what he described as a ‘flashback’, he said that Sam had yanked Mrs Oliver's head back and that he had heard a crunching noise.  He said he could do nothing to stop it.  He said that by mistake or in panic he might have run on top of her body as it lay on the ground, but he said any contact with her was accidental and he thought she was by that time already dead.  The applicant also said by way of explanation that he had been bullied by Sam for many years and was frightened of him.  He said that throughout the whole of the incident he had obeyed Sam's instructions out of fear for his own safety.
13.	The trial at Cardiff Crown Court took place between 5th and 19th December 2005.  A pathologist, Dr Derek James, gave evidence that the cause of death was blunt force to the neck.  The injuries were consistent with strangulation and hypertension, which broke the deceased's neck, but other injuries were also found on the body, in particular serious bruising of the breast and ribs.  Those, he said, were consistent with stamping and must have been caused before death.  There were finely detailed marks of footwear on the deceased's body.
14.	Another expert witness, Dr Peter Williams, gave evidence that the footwear marks were consistent with the applicant's shoes.  None of that expert evidence was challenged.
15.	The applicant, who was of previous good character, gave evidence.  He said that Sam had bullied him for years, but he went about with him from time to time because he did not like going out on his own.
16.	He described meeting Mrs Oliver at the club.  He said she was drunk and that he had offered her a lift home.  He described the argument and said that he had just turned up the music and kept on driving.
17.	He then described how Sam had put his arm round Mrs Oliver's neck and with his other hand had yanked her forehead back.  He said she sounded as though she was struggling for breath.  Shortly after he heard a crunching sound and she stopped sounding as though she was struggling for breath.  The applicant said that he had continued to drive in a state of what he described as panic, and largely at his brother's direction, until he was told to stop in a narrow lane.  There he said Sam told him to get Mrs Oliver out of the car and he did so.  He did not think that she was still breathing at that time.
18.	He said that as he was heading back towards the car he saw Sam staring nastily at him.  He panicked and, terrified and hoping to avoid being hit by Sam, he stamped twice on Mrs Oliver's body, but not with full force.  Again he said he thought that she was already dead at that time.
19.	He then described how he and Sam had driven to Sam's flat where they had both had a shower and he had changed his shoes.  They had a smoke and went to their mother's house for the rest of the night.
20.	The applicant's mother gave evidence that the applicant had low self‑esteem, poor concentration and had needed special schooling.  She also confirmed that Sam had been abusive towards him and had bullied him from his youth onwards.
21.	The applicant's other brother Matthew gave evidence.  He said that Christopher was hard to get on with and frightened of both his brothers.
22.	The issue for the jury in this case was whether or not the applicant had been a party to the murder with Sam. By their verdict they made it clear that they were sure that he had.
23.	The only ground of appeal which now remains is that new evidence has become available since the trial which casts such doubt on the applicant's guilt as to render the conviction unsafe.  This is not an uncommon ground of appeal, but this case is perhaps unusual in as much as the evidence takes the form of new evidence from Sam describing the circumstances in which Mrs Oliver met her death.
24.	We have been provided with a written statement made by Sam on 10th January 2006 and two affidavits of Mr Neil Evans, the solicitor acting for the applicant, who also acted for him at trial.  We have also been provided with copies of various documents brought into being prior to and in connection with the trial, including copies of proofs taken from Sam for the purposes of the trial and other material.
25.	To put the present application in context, it is necessary to say a little bit more about the background.
26.	On 10th February 2005, in the course of an interview, Sam read a prepared statement in which he admitted killing Mrs Oliver.  He said that his recollection was patchy, but the description he gave of events that had occurred after leaving the nightclub was generally consistent with the evidence subsequently given at trial by the applicant.  Following the receipt of advice from a consultant psychiatrist on 7th September 2005, Sam pleaded guilty to the murder of Mrs Oliver.
27.	On 12th September Mr Evans approached Sam's solicitor, Mr Malekin, with a request that he be allowed to interview Sam with a view to calling him as a witness for the defence.  Mr Malekin said that he would have to speak to his client and to counsel before he could respond to that request.  On 23rd September Mr Evans put his request in writing in the form of a letter to Mr Malekin, but he received no response.  He wrote again on 11th November, but again received no reply.  Eventually, however, on 28th November Mr Evans managed to speak to Mr Malekin, who said that he would be advising Sam about the disadvantages of giving evidence in support of his brother.  Finally, on 6th December Mr Evans received a letter from Mr Malekin stating that both he and counsel considered that it would be inappropriate for him to approach Sam.  Enclosed with that letter was a document signed by Sam and dated 4th November 2005 stating that he had been advised by his solicitor not to give evidence and appreciated the reasons for that advice.
28.	As a result of those exchanges Mr Evans considered that it would be unprofessional for him to seek to obtain a proof from Sam and no further steps were taken to call him as a witness at the trial.  However, on 21st December 2005, after the applicant had been sentenced, Sam wrote a letter to Mr Evans saying he had not refused to give evidence but that his lawyers had advised him against doing so.  That prompted Mr Evans to take further steps.  In due course he took a statement from Sam on 10th January 2006 in the form that we now have before us.
29.	We considered that it would be of assistance for the court to hear Sam give his evidence in case we decided that it would be appropriate, after hearing legal argument, to receive it in support of the appeal.
30.	In his evidence Sam described what took place in the car after he and the applicant left the nightclub with Mrs Oliver.  He says that he attacked her in the car after an argument, putting his forearm round her neck and strangling her from behind.  The applicant, who had avoided becoming involved in the argument, had driven the car at his direction to a narrow secluded lane.  When they reached the lane, he said the applicant had pulled Mrs Oliver out of the car and dragged her a short distance from it.  He (Sam) then attacked her again.  As he was leaning over the body the applicant approached him wielding what he described as a crooklock from the car in a threatening way as if to make him stop and grabbed him by the arm.  Sam told us that he had pushed the applicant away and as the applicant moved away he turned and stamped twice on Mrs Oliver's torso, but not, he thought, very hard.  Then the applicant drove off, while he made a further attack on Mrs Oliver.  Sam said he then left on foot, following the route taken by the car and to his surprise found the applicant waiting for him with the car at the end of the lane.
31.	In the course of his evidence Sam confirmed that he had bullied the applicant throughout his youth and on one occasion had grasped him by the throat as if to strangle him.  At that point he was pulled off by his brothers or his mother.
32.	Counsel submitted in the course of argument that the account given by Sam to this court was broadly consistent with the various accounts he had given throughout the period leading up to his plea of guilty.
33.	Section 23 of the Criminal Appeal Act 1968 provides, so far as material to this case, as follows:
"23.  Evidence.
 (1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice — 
...  
 (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. 
 (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to —  
 (a) whether the evidence appears to the court to be capable of belief; 
 (b) whether it appears to the court that the evidence may afford any ground for allowing the appeal; 
 (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and 
 (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
34.	Evidence from Sam concerning what had occurred after he and the applicant left the nightclub in the company of Mrs Oliver would, we accept, have been admissible at the trial.  Indeed, apart from the applicant, Sam was the only person who could give direct evidence about the circumstances in which Mrs Oliver met her death.  That leads to a consideration of whether the evidence he gave appears to be capable of belief, whether we consider that it may afford grounds for allowing the appeal and whether there is a reasonable explanation for the failure to adduce it at trial.
35.	We propose to deal first with the question whether there is a reasonable explanation for the failure to adduce the evidence at trial.  In substance, what is said is that Sam through his solicitors had expressed an unwillingness to give evidence.  It was therefore professionally or practically impossible to obtain a proof from him, and in those circumstances (in the words of Mr Elias) tactically inconceivable to compel his attendance at the trial by means of a witness summons.
36.	The question whether an appellant should be allowed to rely in support of an appeal against conviction on evidence from a co‑defendant who could have been, but was not, called to give evidence at the trial has been considered by this court in a number of cases.  We were referred to the case of R v Boal and Cordrey [1965] 1 QB 402, an appeal arising out of the prosecution of the Great Train Robbers, and to R v Stokes (unreported, 2nd May 1997).
37.	It is unnecessary to refer in detail to the decision in Boal and Cordrey, (although we found it helpful to have it drawn to our attention) because since 1965 changes to the statutory regime governing appeals have given the court wider powers to receive evidence in support of an appeal. Stokes, however, remains an important case as far as this application is concerned.  In that case the appellant sought to challenge his conviction for importing controlled drugs by reference to evidence from a co‑defendant, Quinton.  Quinton had pleaded guilty and had therefore not appeared at the trial.  At that stage he had been unwilling to give evidence in support of Stokes, mainly, it appears, because he was advised by his lawyers that to do so might adversely affect his own case when it came to sentence.
38.	Although Quinton was a competent and compellable witness, the defence decided not to compel his attendance by means of a witness summons because they knew he was unwilling to give evidence in support of their case.  Judge LJ, giving the judgment of the court, noted that the evidence of Quinton would have been admissible and referred to the explanation for the failure to call it.  He continued:
"The problem with this explanation is that it overlooks an essential principle, which is that there should be one trial and in the course of that trial each side must put before the jury the evidence on which it seeks to rely.  When the defence is aware of a potential witness available to be called and elects not to call him merely because of an expressed unwillingness on the part of the witness to give evidence, there will very rarely be occasions when the court would regard that as a reasonable explanation for failing to call him."
39.	Judge LJ went on to explain why that should be so in the following terms:
"It is perhaps unnecessary in addition to spell out the obvious possibilities for manipulation and subversion of the entire trial process which could arise if it were possible for the defence to decide not to call a competent compellable witness to give evidence at the trial merely because of an asserted 'unwillingness' to be called, and then after conviction to seek after all to do so.  This consideration applies with particular force to a witness who was involved in, or connected with, the crime of which the appellant has been convicted.  One reason for not calling such a witness before a jury is that he may well be disbelieved by them, particularly if he has been convicted, whether on his plea or after a trial.  Certainly his evidence would rightly be approached by the jury with considerable suspicion, and if less than utterly convincing would serve to tarnish the defence case in the eyes of the jury.  In summary, even after the coming into effect of section 4(1) of the 1995 Act the defendant is not entitled to have the best of both worlds.  Save in a very rare case he simply cannot decide not to call a witness at his trial and thereafter if convicted seek to call him as additional 'fresh' evidence before the Court of Appeal."
40.	Mr Elias QC submitted that the present case could be distinguished from Stokes because in that case there had been a good deal of contact between the appellant and Quinton during the period immediately prior to the trial, the assumption being that the appellant knew what Quinton was likely to say if called as a witness, whereas in the present case there had been no direct contact between the applicant and Sam, and the contents of Sam's police interviews suggested that he could not remember very much about those parts of the incident that were important to the applicant's defence.
41.	Mr Elias also reminded us that ultimately the question for the court is not whether there is a reasonable explanation for the failure to adduce the evidence at trial, but whether the conviction is safe: see R v Jones (Steven) [1997] 1 Cr App R 86.
42.	In his skeleton argument Mr Elias drew our attention to two cases in which, despite the absence of any reasonable explanation for failing to adduce the fresh evidence at trial, the court received it in support of the appeal and quashed the conviction.  The facts of those cases are very far removed from those of the present case, but they serve to cast some light on the principles involved.
43.	The first of these cases was R v Loughran [1999] Crim LR 404.  We have been provided, by the courtesy of counsel, with a copy of the transcript of that case.  In that case the appellant had been convicted at a retrial of offences of rape and robbery.  He said that there had been an attempt at sexual intercourse with the consent of the complainant, but the penetration had not occurred.  He denied robbery.  At the time of the alleged offence he was suffering from a physical condition which might or might not, depending on the reaction of the jury, have assisted his defence if they had been made aware of it.  Both at the original trial and at the retrial the appellant had decided, on legal advice and for tactical reasons, not to place before the jury evidence of his condition.  Despite that, the court received the evidence which it considered cast serious doubts on the credibility of the complainant, and quashed the conviction, emphasising that ultimately the question for the court is whether the conviction is safe.
44.	The second case was R v Solomon [2007] EWCA Crim 2633 (unreported).  That was an even more unusual case.  The appellant was charged with the rape and buggery of two girls under 16.  At the trial he sought to rely on a video of their visit to his premises at which the offence was alleged to have been committed which itself showed nothing untoward taking place.  However, the video had been edited and in due course it was exposed as a fake.  The trial was abandoned and a new trial was ordered.  At the retrial the appellant again sought to rely on the video as showing everything that had occurred between him and the complainants.  He did not give evidence and was convicted.
45.	Some time after his conviction the appellant produced another video showing him indulging in consensual sexual activities with the girls, which did not disclose the offences of which he had been convicted but did disclose offences of a less serious nature.  For tactical reasons he had attempted to escape conviction altogether by using the edited video, and for that reason had not produced the genuine video in his defence.
46.	When giving the judgment of the court Lord Phillips CJ recognised that, even where there is no reasonable explanation for a failure to produce evidence at trial, the court can, if so minded, admit that evidence in support of the appeal if it concludes that it would have had a significant effect on the proceedings.  However, he also emphasised that it is only in quite exceptional circumstances that the court will admit fresh evidence on appeal where the evidence has been deliberately withheld at the trial for tactical reasons.  The court in that case did consider the case before it to be quite exceptional, because, as a result of the appellant's suppression of the evidence, he had been convicted of offences carrying significantly more severe sentences than the offences that he had actually committed, and indeed had served the sentences imposed upon him.
47.	In our view, the present case is not of an exceptional nature.  It is in truth simply a case in which the co‑defendant, acting in his own best interests and in accordance with legal advice, decided not to give evidence at the trial on behalf on behalf of the applicant, but has since volunteered evidence that tends to exculpate him.  In that respect it seems to us to be indistinguishable from Stokes.
48.	Once Sam had indicated that he would not give evidence voluntarily, those acting for the applicant were no doubt faced with a difficult decision.  Apart from the evidence linking his shoe to the bruise on the deceased's torso, which suggested that he had been an active participant at that stage, the case against the applicant was almost entirely circumstantial and relied heavily on the lies that he had told, both to his mother and interview; the fact that he had not attempted to stop the attack; the fact that he had continued to drive the car to a secluded place; and the fact that he had helped remove the body; together with the evidence of the CCTV recording of his behaviour at the garage.  In the absence of any evidence directly contradicting the applicant's account of what had happened, they may have thought that there was a good chance that the jury would not be able to be sure that he had participated in the murder.  Without having a clear idea of what Sam would say if called as a witness, there was an obvious risk that calling him would do more harm than good.
49.	Nonetheless, this is not a case in which it can be said that the witness was not available, had the decision been made to call him.  Indeed, it is a case in which it can be said that the decision not to call the witness was dictated by perfectly sensible tactical considerations.  The applicant, or those instructing him, considered that on balance it was preferable not to call Sam as a witness than to call him.
50.	In our view, it is difficult to distinguish this case from Stokes.  The court in that case does not appear to have based its decision on the fact that the appellant knew what Quinton would say if called, which is itself by no means clear.  Indeed, whenever a co‑defendant who has pleaded guilty is unwilling to give evidence there must be doubt about exactly what he would say if he were compelled to testify.  Apart from anything else, he would have his own interests to serve, at least until sentence has been passed.
51.	Finally, in the conduct of litigation, including criminal litigation, finality is viewed as a matter of considerable importance and the courts have always been very reluctant to reopen final decisions on the basis of evidence that could have been, but was not, adduced at trial.  The dangers of any other rule are obvious and were spelled out by the court in Stokes.
52.	If the court were to receive fresh evidence in this case, it could only be on one of two grounds: that whenever a co‑defendant has refused to give evidence in support of the applicant there is a reasonable explanation for the failure to adduce the evidence at trial; or that it is one of those exceptional cases in which, having regard to all the circumstances, the evidence is of such importance that it clearly renders the conviction unsafe.
53.	As to the former, it is impossible in the light of the authorities to accept that a co‑defendant's unwillingness to give evidence itself provides a reasonable explanation for the failure to adduce the evidence at trial.  We have already referred to what was said in Stokes by Judge LJ on this point; the same point is made in other cases.
54.	As to the latter, the fact that the evidence tends to exculpate the appellant is not by itself enough, as again is clear from Stokes, in which the statement provided by Quinton purported to exculpate the appellant.  There must be something which enables the court to be satisfied that, despite the failure to adduce it at trial, the evidence is of such importance that it clearly undermines the safety of the conviction and so makes it necessary or expedient to receive it.
55.	We have already summarised Sam's evidence, which we have to say we did not find wholly impressive.  He was briefly but effectively cross‑examined by Mr Thomas QC, who was able to expose serious weaknesses in his account viewed from the perspective of the applicant.  In particular, Sam was unable to give any explanation for the applicant's stamping on Mrs Oliver's body and did nothing to undermine or explain the evidence of what had occurred after the murder, such as inexplicably finding the applicant waiting nearby with the car, his driving them both back to his flat, the subsequent visit to the garage to buy drinks and cigarettes, where the applicant was observed to be in a relaxed and jovial mood and the evidence of his acting generally in a manner that suggested he was supporting his brother.
56.	Mr Elias reminded us of the case of R v Pendleton [2002] 1 Cr App R 441, in which Lord Bingham observed that it is for the court itself to determine whether the evidence is capable of belief and whether it appears to afford grounds for allowing the appeal, although in doing so it is entitled to take into consideration what effect the evidence might be expected to have had on a jury.  Taking Sam's evidence as a whole, we recognise that much of it is consistent with what he said during the months prior to trial and we are prepared to accept that some parts of it, though not all, are capable of belief.  But it does little to advance the applicant's case in relation to those aspects of the matter that were central to his defence.  In particular, it failed to deal in a remotely satisfactory way with the matters that were put to him in cross‑examination and to which we have just referred.
57.	Accordingly, we do not consider that this is a case in which it is necessary or expedient in the interests of justice to receive this new evidence, both because no reasonable explanation has been given for failing to adduce it at trial and because we do not think that it undermines the safety of the conviction or affords grounds for allowing the appeal.
58.	A second ground of appeal based on the learned judge's direction to the jury in relation to participation in the offence is no longer pursued.  In those circumstances, the application must be dismissed.
59.	Mr Elias, thank you very much for your assistance.  There is nothing else we need to deal with, is there?
60.	MR ELIAS:  I think not, my Lord.
61.	LORD JUSTICE MOORE-BICK:  Mr Thomas? 
62.	MR THOMAS:  No thank you, my Lord.
63.	LORD JUSTICE MOORE-BICK:  Thank you very much as well. 
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