Neutral Citation Number: [2010] EWCA Crim 1150
Case No: 2008/00131 D4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
MR JUSTICE GOLDRING
T20067360
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/05/2010
Before:

LORD JUSTICE HOOPER
MR JUSTICE DAVID CLARKE
and
MR JUSTICE OPENSHAW
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Between:

	Peter Connolly	Appellant	
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	The Crown	Respondent	

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Mr A J Arlidge QC and Mr J Anders for the Appellant 
Mr M Austin-Smith QC for the Respondent 

Hearing dates: 19 February & 12 May 2010
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Judgment

LORD JUSTICE HOOPER: 
1.	At the conclusion of the hearing we announced our conclusion that the appeal against conviction was dismissed. We now give our reasons.
2.	On 10 December 2007 the appellant (“Connolly”) was convicted of the murder of 18 year old Christopher Alaneme (count 1) and of wounding 29 year old Mark Davies, aged 29,with intent to cause grievous bodily harm (count 2).  Both offences were committed shortly before midnight on Friday 21 April, 2006. 
3.	The attack on Mark Davies started at about 23.56.20 and was over by about 23.56.34. These timings were obtained from CCTV cameras, although Davies himself was not caught on the CCTV at the moment of the attack. Mark Davies was stabbed five times, four in the chest and one in the buttock next to the anus. Mark Davies was so drunk that he had no memory of the attack. 
4.	The attack on Christopher Alaneme, which took place a few yards away from where Davies was attacked, probably started during the attack on Davies. Alaneme was stabbed once in the abdomen, causing a wound from which he was to die. It is likely that he was stabbed after Davies had been stabbed.
5.	Both Davies and the deceased and others involved in the incident were residents of Sheerness. 
6.	Although in theory there could have been more than one knife involved in the incident (the pathologist could not exclude that) and more than one knifeman, the overwhelming probability was that only one knife was used and only one person used it. No witnesses saw a knife during the incident and no knife could be seen on the CCTV footage.
7.	The appellant had gone to Sheerness that evening from Peckham, with four friends, Terence Beaney, Andrew Giblin, Sean Duhig and Gerry Duhig.  All had consumed large quantities of alcohol and drugs had been taken by some.  All five were charged with murder. 
8.	Sean and Gerry Duhig were acquitted of murder on the direction of the judge at the close of the prosecution case. The judge ruled that the jury could not properly be sure that they had used, or were aware of, the knife. They were not charged on count 2. 
9.	Beaney and Giblin were acquitted of counts 1 and 2 by the jury. It seems likely that they were acquitted because the jury could not be sure that they had used, or were aware of, the knife.  
10.	In the light of the verdicts the jury must have been sure that Connolly had the knife and used it to stab both victims.
11.	There was, and this is not disputed, sufficient evidence to convict Connolly.  Connolly admitted in evidence that he was in the vicinity of the two incidents and admitted that he had been involved in a struggle with Christopher Alaneme – indeed he could not have denied it.  Evidence from a forensic scientist established that Connolly’s DNA was found on Alaneme’s left glove. Furthermore Connolly’s DNA was found in blood staining on Alaneme’s left index finger.  Since Connolly was bleeding from the lip, the judge said – no doubt correctly – that as a matter of common sense the blood on Alaneme’s glove and finger must have resulted from contact between Alaneme’s glove and Connolly’s wet blood. This, as the prosecution put it, "demonstrated contact between the two men in circumstances of violence". Moreover, the prosecution argued that such a deposit of blood could only have resulted either from two blows delivered by the Alaneme himself (the first blow to cause an injury or cut to spill the blood and the second to deposit it on the glove), which the appellant denied, or alternatively, a single blow from Alaneme following upon an earlier injury caused during the course of his violent contact with Davis, which conclusion would implicate the appellant in the attack upon Davis.
12.	The evidence against Connolly included:
a)	Evidence that he had confessed whilst in a car returning to London after the incident; 
b)	evidence from Beaney and Giblin that Connolly had a knife earlier that evening;
c)	adverse inferences from his failure in interview to give the account which he was to give in evidence; 
d)	evidence that he had left the scene and gone on the run for two weeks; 
e)	evidence from which the jury could infer that he had deliberately got rid of the clothes he was wearing and the mobile phone he was carrying at the time of the attack (all of which could well have been bloodstained); and 
f)	evidence from which the jury could infer that he pretended that he had been wearing on the night other clothes which had similarities to the clothes he was wearing on the night. 
13.	As to e) and f),  good quality CCTV images showed that Connolly was wearing a polo shirt with coloured hoops, the well-known Lacoste crocodile logo on the left breast, and a couple of black buttons fastening the neck opening.  Later on that evening at the time of the incident, he had put on a black jacket, but underneath one can still clearly see the Lacoste hooped T-shirt.
14.	When Connolly surrendered at Wimbledon police station on May 5 2006, he brought with him a holdall containing clothing, including a Lacoste polo shirt, which he suggested was the polo shirt he had been wearing at the time; it had the same coloured hoops, with the Lacoste crocodile logo, but a close examination showed that the logo was in a different place to that shown on the shirt in the photographs, and furthermore, there was a different arrangement of buttons. Consequently, the shirt which Connolly had brought to the police station was not the shirt which he had been wearing at the time of the incident.  The jury were invited to draw the inference that the shirt he had been wearing at the time was bloodstained, and therefore he had disposed of it and later he, or someone on his behalf, had gone out and bought a similar Lacoste T-shirt, hoping to pass it off as the one he had been wearing at the time, which, of course, would not have tell-tale bloodstains on it.
15.	As far as his mobile telephone is concerned, Connolly is seen using it immediately after the incident.  It may reasonably be supposed that the person who had a knife to the deceased would have blood on their hands.  If this was Connolly, there would be blood upon his mobile phone.  Consequently, he would have a compelling reason to dispose of it.  There is no record of the use of this phone afterwards. The jury were invited to conclude that Connolly had disposed of it, because it was bloodstained.
16.	The ground of appeal on which leave was given concerns only a narrow issue in the trial, albeit one of importance. That issue related to CCTV footage which, the prosecution claimed, was consistent with Connolly being involved in the attack on Davies, an attack which, undoubtedly, took place just outside Bar One. Mr Arlidge   QC submits that the judge should not have allowed the prosecution to make this point.
17.	The prosecution had CCTV footage which showed without doubt Connolly and the other four coming towards the area where the attacks were to take place and what the five were wearing. CCTV footage also showed Davies sitting outside Bar One, getting up and moving out of sight of the camera to the spot where he was to be attacked.  
18.	The appeal concerns CCTV footage from a camera inside Bar One (“Bar One interior camera”). That footage principally showed what was happening inside Bar One but there were a few shadowy images of what was occurring outside Bar One, visible to the camera through the windows and door of Bar One.  
19.	It gives some idea of the complexity involved in understanding the images filmed by the Bar One interior camera that it took over two hours of painstaking explanation by Mr Austin-Smith QC to demonstrate to us the prosecution’s case. By taking all the CCTV footage and evidence from witnesses such as the Bar One doorman, he demonstrated what he described as a logic trail leading to the conclusion that Davis was attacked in an area hidden from the camera by the exterior wall of Bar One between about 23.56.20 and about 23.56.34.
20.	He relied upon the evidence of a Mr Bryant to support the prosecution’s case that three men were involved in the attack on Davies, one of whom was wearing what he described as black or navy blue clothing.
21.	Central to Mr Austin-Smith’s logic trail was the inference, which he asked the jury to draw, that whoever attacked Davies must have been a member of the Peckham group.  There was no evidence to suggest, so he submitted, that Davies had been attacked by a local person.  
22.	Mr Austin-Smith relied upon evidence which showed, and this was not contradicted, that the Duhig brothers were on the other side of the road when Davies was attacked. Indeed they did not face trial on the Davies count. That left, so he submitted, three possible attackers on Davies, namely the other three members of the Peckham group.
23.	During the trial Mr Austin-Smith invited the jury to conclude that the CCTV footage showed that two men near where Davies must have been could be identified by their clothes as Beaney and Giblin. Indeed both Beaney and Giblin made limited admissions in evidence that the prosecution was right in this assertion. The CCTV footage also appeared to show that Giblin was attacking Davies. 
24.	There was, so the CCTV footage shows in about five different shots before, during and after the attack on Davies, a third man wearing on his top clothes which appear to be black or dark. Connolly, of the three, was the only one wearing a black top. It was impossible to identify the third man as Connolly from his facial features, which were completely indistinct. One frame could be interpreted as showing that man with a raised arm.
25.	Mr Austin-Smith pointed to the evidence of a witness, Henry Cooper, who had a good view of the incident from the upstairs floor of Bar One and whose evidence supported the case that only three men were involved in the attack on Davies and that all three afterwards went over to where Alaneme was already involved in a scuffle with the Duhig brothers and joined in. That Connolly was involved in some way in the attack on Alaneme was not disputed. 
26.	Mr Arlidge QC relied on the fact that Cooper had no independent memory of the evening and that the jury had to rely on his statement taken at the time. 
27.	He contested the submission that no-one other than members of the group of five would have been involved in the attacks on Davies and Alaneme and pointed to the fact that Christopher Alaneme and his friends were seriously impaired by alcohol and that his friends had a history of violence.
28.	He pointed to evidence of eye witnesses from which it could be concluded that more than the five were involved in the attacks.
29.	There was, we add, an added complexity in that the person’s trousers appear light coloured whereas Connolly’s were not. Mr Austin-Smith explained this by reference to the fact that the lower part of the windows through which the images were being captured was frosted. 
30.	If the man in dark clothing seen on the CCTV very close to the point where Davies was being attacked was consistent with being Connolly, that offered some limited support to the case against Connolly. If the CCTV images showed that Connolly was not the man in dark clothing, then that would be powerful exculpatory evidence in favour of Connolly. If he was not involved in the attack on Davies (and his evidence was that he was not) then it could not have been he who stabbed Davies. Given that in reality there was only one knife and only one knifeman, he would not be guilty of the murder of Alaneme. 
31.	Having considered the logic trail put forward by Mr Austin-Smith we have no doubt that a reasonable jury was entitled to follow that trail. The jury were entitled to conclude, in the light of all the evidence in the case, that Davies had been attacked by members of the Peckham group and that the Duhig brothers were not involved. That left three candidates and the evidence that three men were involved. Given their admissions and the CCTV footage the jury were entitled to conclude that Beaney and Giblin were involved in some way in the attack on Davies. They were entitled to conclude that the third man was Connolly. 
32.	We turn to what happened at the trial. 
33.	On 16 November 2007, towards the close of the prosecution’s case, the prosecution submitted to the judge that the prosecution should be permitted to establish that the CCTV footage was consistent with Connolly being involved in the attack on Davies. 
34.	The judge ruled:
Mr Arlidge, as I have said, does not suggest the CCTV should be excluded. He submits that Mr Austin-Smith should not be permitted to make the assertion regarding Mr Connolly, to do so would now be unfair. Such a suggestion has never before been made by the prosecution. An expert witness who was served was, in the end, not relied upon by the prosecution, never made such a suggestion. The image in question is not at all clear. It is not at all easy to discern a movement such as that suggested by Mr Austin-Smith. Had he known that such a suggestion was to be made, he would have instructed an expert to deal with it. It is now too late for we are at the end of the prosecution case.
With a little hesitation, I have concluded that it would not be right in the circumstance for Mr Austin-Smith now to make the point he wishes in respect of Mr Connolly. It is too late.
35.	After Beaney had given evidence the prosecution repeated the earlier unsuccessful application on Thursday 22 November.
36.	The judge ruled:
Mr Austin-Smith has reopened the point raised previously in respect of ‘the man in black,’ as we have referred to him, who can be seen on a careful viewing of the CCTV from inside Bar One. Mr Connolly was dressed in black.
Mr Austin-Smith has raised the point again for a number of reasons. First, he submits that things have changed since the ruling. Mr Beaney has given evidence, and been cross-examined. He has accepted that this was an incident involving only the five from Peckham and the five from Sheerness, or may be taken so to have accepted on one reading of his evidence. Two of those from Sheerness, the Duhig brothers, were on the other side of the street. That leaves the three defendants of those from Peckham, on that possible interpretation of his evidence. On one possible view of what Mr Beaney said, Mr Giblin can in effect been seen as the man, on the face of it, striking down to someone in the position of Mark Davis. Second, it is, submits Mr Austin-Smith, a possible interpretation of the CCTV in the light of Mr Beaney’s evidence that at the time Mr Giblin was inflecting the last blows in the direction of Mark Davis, Mr Beaney, while nearby, was not physically joining in. At the time of the possible blows, the man in black, Mr Connolly, was running off.
Mr Connolly is about to give evidence.
Mr Austin-Smith submits that, in the light of what Mr Beaney has said, and a proper viewing of the CCTV evidence, the man in black cannot simply be ignored. On one view, the fact that Mr Beaney and the man are seen as they are on the CCTV might help them. In any event, this is evidence, submits Mr Austin-Smith, which the interests of justice require should be fully ventilated. The jury have the CCTV, it is in evidence; they might well ask about the man in black.
Mr Arlidge has not changed his stance. He submits that this evidence should be excluded to the extent of any observation or cross-examination regarding the man in black. Nothing has changed since the ruling. It is now too late. He will take the risk of the jury taking an adverse view of this evidence as far as his client is concerned.
I have to say that, having seen the CCTV as it was carefully gone through by Mr Austin-Smith in cross-examination of Mr Beaney, the position regarding it has become clearer. The figure in black can clearly be seen. I have already remarked on one possible view of the evidence that only the three people from Peckham were in the area of Bar One. I have already remarked upon one possible view of Mr Beaney’s evidence, and his comments regarding Mr Giblin. It seems to me that this obviously intelligent jury is unlikely to miss the man in black on the CCTV. It is in evidence anyway. It is not satisfactory simply to leave it, and pretend, as it were, that the man in black is not there. It is, as it seems to me, in the interests of justice, viewing it in the round, that the nettle is grasped. That means that Mr Austin-Smith may be permitted to cross-examine upon the man in black. He may comment upon what can be seen. If, of course, he makes bad points, they will soon be apparent to this, as I say obviously intelligent jury.
37.	Mr Arlidge applied for the jury to be discharged and an adjournment until Monday to see whether it was possible to obtain expert evidence. On Monday the judge was told that it would take three weeks to obtain a report. The judge refused any further adjournment and the trial continued. 
38.	Mr Arlidge assured us that he first fully understood that the prosecution were going to submit that Connolly could be identified from CCTV images as the third man involved in the attack on Davies shortly before 16 November. He described what the prosecution were seeking now to do, in so far as Connolly was concerned, as a “significant change”.
39.	Mr Austin-Smith disputed that there had been a significant change but accepted the assurance given by Mr Arlidge. Notwithstanding that acceptance, both parties spent time on the history of the case to resolve whether there was, or was not, a significant change. Not without some reluctance we shall rehearse the arguments.
40.	The prosecution had obtained and served before trial an expert report. The expert had viewed the CCTV images and identified a person on one still image as consistent in appearance with Connolly. It was agreed by the parties that the expert would not be called.
41.	Mr Austin-Smith’s speaking note for his opening address to the jury in relation to the Bar One interior camera reads as follows:
You may also be helped by some footage from inside Bar One, looking out through the windows, in which activity on the outside can be seen. See JB p77 [RJB/35] in which you can seen the direction the camera is pointing. [PLAY CCTV FROM INSIDE BAR ONE]
In the following series of photographs JB p78-98 [RJB/59-79] an attempt has been made to clarify it for you by removing all foreground action inside Bar One and just leaving the important parts, namely what is happening outside. We may have to look at those in detail in the course of the trial.
In a further attempt to assist you, the footage from inside and outside have been matched so that you can see both at the same time. [PLAY COMPOSITE CCTV]
These taken together confirm that something is happening outside and the presence of people with clothing consistent with Giblin JB p84 [RJB/65], Connolly JB p88 [RJB/69] and Beaney JB p89 [RJB/70], but the prosecution do not suggest that this footage is sufficiently clear to make any positive identifications, let alone to be sure as to what the figures depicted are actually doing. But it may go some way to confirming the other evidence available to you.
42.	The image referred to (RJB/69) in the last paragraph was one second after the image to which the expert referred (RJB/67). 
43.	During the trial a great deal of work was done by the prosecution team on the Bar One interior camera footage and on about 30 October it was realised that much more could be obtained from an analysis of the footage that had been so far realised.  That led to the application to the judge on 16 November to which we referred earlier.
44.	In our view there was, as Mr Arlidge submits, a significant change or development in the case against Connolly. Indeed the judge must have reached that conclusion when ruling on 16 November that it was too late for the prosecution to make the point that the CCTV footage, particularly that from the interior camera in Bar One, showed, in the light also of other CCTV footage and of other evidence, that Connolly was involved in the attack on Davies. 
45.	Mr Arlidge points out that in his ruling of 22 November, the judge made no further reference to the lateness of the application.  If it was too late on 16 November, he submits it was even later on 22 November. 
46.	Mr Arlidge submits that the judge was right on 16 November and wrong on 22 November to allow the prosecution to make the point.  This court should acknowledge the judge’s error and order a retrial.
47.	In our view the judge was entitled to change his mind, given the developments in the case. Indeed, with a good deal of hindsight, it can be said that he was probably wrong to rule against the prosecution on 16 November, because although there had been a significant change or development, a fair trial could have been ensured. The judge could have allowed the prosecution, using a police officer very familiar with the images having looked at them many, many times and on specialist equipment, and/or counsel to identify for the jury the shadowy images seen through the windows and door of Bar One on the CCTV footage of the interior camera and explain the prosecution’s case in respect of them. 
48.	Having allowed the prosecution on 22 November to make its point against Connolly, the judge had to ensure that Connolly was not prejudiced by the change in such a way that he could not have a fair trial. 
49.	Mr Arlidge submitted to us, although he does not appear on the transcripts available to us to have submitted to the judge, that, if he had known that the prosecution were going to make this point against Connolly, he would have wanted to ask further questions of the various eye witnesses called by the prosecution. Mr Arlidge was unable to identify the relevant witnesses and relevant questions.  We can see no lines of cross-examination additional to those which he utilised.
50.	Mr Arlidge submits that the judge was wrong not to adjourn/discharge the jury pending the obtaining of an expert report.  
51.	In our view the judge was right to continue the trial in all the circumstances.  Albeit we have not seen any reasons he gave for continuing the trial without giving the defence enough time to obtain a report, the judge would have been entitled to conclude that the likelihood of an expert concluding that the man in black could not have been Connolly was not high.
52.	However, in the exercise of our jurisdiction to ensure that Connolly has had a fair trial, we concluded that Connolly should now be given an opportunity to obtain an expert report. With the agreement of Mr Austin-Smith, we adjourned the hearing to enable Connolly to take that opportunity and laid  down a time table. We should add this.  No criticism attaches to Connolly’s legal team for not having obtained such a report before trial. Without knowing how the prosecution would later put their case, it would not have been reasonable to seek such a report.
53.	Mr William Platts explained his experience and prepared a report for the adjourned hearing and gave evidence to us.  He rightly pointed out that there were a number of deficiencies with the CCTV evidence.  The footage only recorded two frames a second and not the standard 25 frames a second. But that is clear from the footage itself.  He points out that the quality of the footage is very poor, particularly the images seen through the windows. That was obvious to the jury. He shows how the “dead ground”, and the fact that there were only two frames a second, would have allowed a person to attack Davies without being seen on the footage at all.  That again was obvious, so it seems to us.
54.	In cross-examination Mr Platts accepted that he was unable to show that the man in black was not Connolly.  He accepted that the image of the man in black, notwithstanding all the possible deficiencies, was consistent with being Connolly.  He points out that in different frames at different times there were other men dressed apparently like the man in black, but that does not take the case any further.
55.	Having considered the matter carefully, we have no doubt that if the jury had heard the evidence of Mr Platts, the jury’s verdict would necessarily have been the same.
56.	In conclusion we wish to add that we have looked at the summing up to see how the judge left the issue of the CCTV footage to the jury. In one passage of the summing-up the judge records that Mr Austin-Smith was saying no more than that the clothing of the man in black was consistent with Connolly’s clothing. During the cross-examination of Connolly, Mr Austin-Smith, as he had to, put it in clear terms to Connolly that he was the man in black seen in about the five still images before, during and after the attack. The judge at the conclusion of the summing up reminded the jury that this was the prosecution’s case.  Nonetheless we have no doubt that the jury would have understood that the prosecution’s case was that the images of the man in black were consistent with being Connolly.  It was quite impossible to identify Connolly from the images, and no one suggested otherwise. 
57.	Having looked at the case as a whole we have no doubt that the conviction is safe.