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Cite as: [2001] EWCA Crim 2808

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Hughes, R v [2001] EWCA Crim 2808 (18th December, 2001)

		Neutral Citation Number: [2001] EWCA Crim 2808
		Case No: 00/0895/Y1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CHESTER CROWN COURT
(STEELE, J.)

Royal Courts of Justice
Strand,
London, WC2A 2LL

18 December 2001

B e f o r e :

LORD JUSTICE MANCE
Mr. JUSTICE PENRY-DAVEY
and
MR. JUSTICE LEVESON
____________________

R
Respondent

- and -

VICTOR JOHN HUGHES
Appellant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Lord Martin Thomas QC & Linda Knowles (instructed by the CPS for the Respondent)
Gordon Cole (instructed by Messrs De Cordova Allis & Filce for the Appellant)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Mance:

The appellant, Victor Hughes, was convicted of the offences of murder of Jerome Ligale and assault occasioning actual bodily harm on Robert Jones in the Crown Court at Chester before The Honourable Mrs Justice Steele on 14^th July 1995, and was sentenced to respectively life imprisonment and 2 years concurrent. He now appeals against his conviction for murder with leave of the Full Court given on 1^st May 2001, after the registrar had granted the necessary extension of time.

The conviction related to events occurring late on the evening of 25^th November 1994 at the junction of Pen y Bryn and Tenters Square in Wrexham. About 80 yards from that junction is the Swan Public House. It is common ground that at about 11.00 p.m., two young men, Robert Jones (nickname Nino), who was white, and the deceased, Jerome Ligale, who was black, were asked to leave the Swan, having apparently upset other customers and the landlady, Mrs Christina (“Tina”) Lewis, by their drunken dancing. They walked to the corner with Tenters Square. There an incident took place, in the course of which Jerome Ligale suffered a fractured skull, as a result of which on 9^th December 1995 he suddenly collapsed and died. The Crown’s case was that he had been head-butted, punched or pushed to the ground by the appellant, that he had hit his head in falling on the roadway or pavement and that the collapse on 9^th December 1995 was the direct result of this and not of some intervening problem. At trial, the Crown adduced a considerable body of medical evidence on the question whether the fracture to the deceased’s had contributed significantly to his death on 9^th December 1994 and on the possible causation of the fracture. The jury was evidently satisfied that the Crown had established its case that the fracture resulted from the deceased hitting his head when falling onto the ground and that it contributed significantly to his later collapse and death.

The appeal now brought relates to the circumstances in which Jerome Ligale fell and so fractured his skull. At trial, the Crown called a number of witnesses on this aspect. They included Mr Goodwin, the appellant’s foreman, who had left the Swan with or at about the same time as the appellant, Mr Eddie Haftavani, the owner of a chip shop with a flat above it at 41 Pen y Bryn, his then girl-friend (now his wife), Abbie Bond, Mrs Lewis, the landlady of the Swan, and her husband, Mr Lewis. Abbie Bond, Mr and Mrs Lewis all failed to come up to proof and were treated as hostile witnesses. The judge directed the jury to disregard their evidence totally, if they concluded that they were not credit worthy, and gave them a strong and appropriate warning as to the danger of placing any reliance upon it.

This left the evidence of Mr Goodwin and Mr Haftavani. Mr Goodwin had been drinking in the Swan with the appellant, and had had on his account some ten pints. He said in evidence that he had followed the appellant out of the Swan; that there he had seen the appellant head-butt first a white man to the ground and then go to head-butt but either brush or catch a black lad who also went to the ground; that the appellant then picked up the black lad by his lapels and head-butted him so that he flew to the floor, where he landed on his back and stayed; that the appellant had again picked up the black lad by the shirt or jacket, whereupon Mr Goodwin had grabbed him, saying “Let us go” and calling him a stupid bastard; and that the appellant then finally threw the black lad down. Mr Goodwin grabbed the appellant by the arm and they started to walk back to the Swan, but, according to Mr Goodwin, the appellant broke loose and went back and hit the white lad, who was trying to get up, once more on the side of the head, before returning to Mr Goodwin and saying “No witnesses”.

Mr Goodwin had made a number of prior inconsistent statements. Initially, he had said that he had not left the Swan that evening. On 6^th December 1994 he said that he had seen the appellant head-butt the white male, and move towards the black male as if to grab hold of him, that they then went out of sight and that by the time he reached them the black lad was on the floor apparently unconscious with the appellant standing over him. Only on 13^th December 1994 did he give an account consistent with that which he gave in evidence. On 19^th December 1994 he was himself cautioned and interviewed by the police, with reference to allegations about his own involvement which had by then, on 15^th December 1994, been made to the police by the appellant in interview on 15^th December 1994. In his interview Mr Goodwin repeated the substance of what he had said on 13^th December 1994, and denied the appellant’s account.

Mr Haftavani had been seen by the police and had made a statement dated 27^th November 1994. His oral evidence was that he had looked out of his flat window; the agreed plan shows this to have been 125 feet from the area of the incident diagonally across Pen y Bryn. He said that he had seen a white and a black man walking and stopping near the corner; that others were walking behind them and came up, that one of the people following was a tall man, wearing a white top, who (it is common ground) was the appellant; that this tall man head-butted the white man, who fell to the ground; that the black then came up close to the tall man and was twice pushed by the tall man to the ground, where he lay on the second occasion, kicking or moving about. Then according to Mr Haftavani in chief, there was further talking or answering back, the tall man had hold of the black man’s collar as he was on the floor, the black man got punched, and his head just banged hit on the curb - an audible bang. Mr Haftavani said that he thought it was the tall man who got hold of the collar but was not one hundred percent sure who delivered the punch. In cross-examination Mr Haftavani accepted that another of the persons present, a “plumpish” man (referring, as is common ground, to Mr Goodwin) had held the black lad by his clothing in the last minutes before the fight finished, and said that this man “was trying to separate them or he was talk [sic] to him”.

The appellant’s case at trial was that he had been aware of some trouble in the Swan on the evening of 25^th November 1994, that at one point he had told a man called Colin Bagnall to behave, that later he observed Tina Lewis ask Nino and Jerome to leave, and that Jerome became involved in heated discussion with John Goodwin, during the course of which Jerome pointed in the appellant’s direction. Nino and Jerome then left; the appellant went over to ask John Goodwin why Jerome had pointed in his direction; John Goodwin could not answer this, but said that Jerome had been saying that he could get people from Moss Side to sort the appellant out.

The appellant then decided to go out for chips, at Mr Haftavani’s shop; it was, he said, the time of night when he normally did this, and it was about ten to twelve minutes after Nino and Jerome had left. John Goodwin also came out. Nino and Jerome were standing down the street on the left, on the same side of the road as the Swan, and on the opposite side of the road to and beyond Mr Haftavani’s chip shop. The appellant approached Nino and asked him “what the f’ing hell” he had been pointing at him for, to which Nino’s answer was to “mind your f’ing business”. According to the appellant, Nino lifted his arm as if to hit the appellant, the appellant then struck him in self defence and Nino went down in the road. Jerome then came at the appellant from the side, and in self-defence the appellant punched him in the mouth and told him to “f” off. Jerome appeared to back off. The appellant turned back to Nino and saw him still on the floor. He then saw that John Goodwin now had hold of Jerome. At this, the appellant head-butted Jerome to the side of his face, saying that he had told him to “f” off. The appellant walked back to Nino, and picked him up by his jacket, formed the view that he was not going to cause any more trouble and threw him back down again, before going off back to the Swan.

At no stage, according to the appellant’s evidence, did Jerome go down on the floor in the appellant’s presence. The last that the appellant saw of Jerome was being held very tightly by John Goodwin. In the Swan, the appellant went to the toilet, from where he heard John Goodwin returning; on returning to the bar area, he saw John Goodwin standing by a table at which Geraldine Phillips was sitting with John Goodwin’s wife, and heard John Goodwin “going on about niggers and saying: “No nigger is telling me what to do”. A witness called for the appellant said that he had seen John Goodwin return to the public house, hyped up and saying: “You should have seen it. It was like left, right, good night, they were out of it” and “I am not having no f’ing nigger tell me he is from Manchester” and going on about black men, whereas the appellant seemed calm and collected.

There were put to the appellant quite different accounts which he had given in interview. He said that these were lies told to protect himself, his job or his foreman, John Goodwin, although he did not claim to have seen John Goodwin involved in any actual violence, apart from holding Jerome. On 27^th November 1994, he said that he spent the whole evening of 25^th November in the Swan with John Goodwin and his wife, and denied ever leaving it or hitting either Nino or Jerome. During the next three hours or so, John Goodwin and his wife were then evidently seen by the police and the appellant was re-interviewed. The appellant then said that he had told Colin Bagnall not to cause any trouble and that Nino and Jerome had left the Swan, shouting something as they went, and that he had himself then gone out the back way to go to see Nino, “cause it was really bugging me like …. What he was going on about”. In the road he had gone up to Nino, they had exchanged words, Nino’s voice had started getting funny, so, before Nino could hit him, he had punched him in the face; Nino fell on the floor, while Jerome backed off. Someone then shouted at him to leave Nino alone, and he had not hit either Nino or Jerome. Two other persons had however approached Nino and Jerome and one of these had “hit the pair of them”.

Later in the interview, however, after saying he could not “remember” hitting Jerome and was drunk as well, he said that Jerome had come over and he had just thrown him to the ground, pushed him out of the way, but not punched him, and that Jerome had then gone on the floor and hit his head, in a way “loud enough to hear it”. He accepted that, if he had hold of someone by the face and pushed them to the ground leading to them banging their head, then, with “the power I’ve got ….they’re going to hurt themselves bad ….”, and that, if Jerome was critically ill “that’s most probably when he’s banged his head on something then”. He also said that: “It all seems when I have ale it’s as if something else just kicks me off”.

In a third interview on 28^th November, he repeated this account and that “… if he’s gone bang on his head or caused anything with a bang on his head, alright, yeah, fair enough, that’s me”. However, on 15^th December 1994, he gave for the first time an account similar to that which he later gave in evidence, with the difference that on 15^th December 1994 he said that on the second occasion that he attacked Jerome (while Jerome was, he said, being held by John Goodwin) it was with another punch (rather than a head-butt). He said that he had been “sticking up for John …. keeping him out of the way” in his previous interviews, although he had not seen John Goodwin strike any blows.

The present appeal is brought in the light of developments relating to Mr Haftavani and fresh evidence which it was submitted that this court should receive both from him and from a Mr Peter Christie, who was not called as a witness at the appellants’ trial. With counsels’ agreement, we have heard de bene esse oral evidence from both Mr Haftavani and Mr Christie. In the case of Mr Haftavani, counsel’s initial submission, in circumstances to which we shall come in more detail, was that the court should itself call him as a witness, and that counsel for the appellant should in any event be permitted to cross-examine him. We ruled that the appellant could and should call him and, in the first instance, adduce whatever evidence he now wished to give. But we added that, if his evidence was not in accordance with draft statements which had been prepared for him to sign by the appellant’s solicitors in 1999, but which he had declined to sign, we would on application permit counsel for the appellant to cross-examine him. In the event counsel made no such application, and did not seek to take any such course. This was so, although Mr Haftavani’s evidence before us about the events of 25^th November 1994 consisted of substantial endorsement of the evidence that he had given at trial, with one exception relating to John Goodwin’s precise role in the last stages of events and with the insertion into events of an account of telephone calls made by him and (probably) Abbie Bond.

We turn to the developments with regard to Mr Haftavani since the trial. We start with a letter dated 7^th February 1998 written out for him by Abbie Bond. The letter was addressed “To whom it may concern” and sent to Woolcombe & Sons, London solicitors who were at that stage representing the appellant’s interests. It read:

“I E. T. Haftavani of the above address was a witness to one of your clients, Victor Hughes, who’s now serving time. In my opinion what Mr Hughes got convicted for was totally unfair and justice was not served on him properly. What I witnessed on that night was only a typical Wrexham street fight but it was unfortunate that the dark lad died of his injuries that to me was a pure accident. I wanted to explain this in Chester Crown Court, but they never gave me the opportunity.

I spoke to my solicitor many times to express my feelings towards this unfair justice, he advised me to write a letter to you explaining my feelings as you being Mr Hughes solicitor to act on this as soon as possible. I’m sending you my solicitor’s name and address so if there is anything we can do to get Mr Hughes’ freedom back and free my conscience please get in touch with my solicitor for him to take matters in hand.”

This letter is as notable for what it does not say, as for what it says. Mr Haftavani was not suggesting in it that his evidence at trial about the appellant’s involvement or actions was in any way inaccurate, but was evidently concerned about a conviction for murder arising from what Mr Haftavani calls “a typical Wrexham street fight”. In June 1998, after asking the appellant’s solicitor, Mr Haftavani went to see the appellant in prison, a journey of some 120 miles, going with the appellant’s sister and cousin.

Next in sequence is a draft, unsigned statement dated 7^th May 1999, which was put to Mr Haftavani in cross-examination before us, in which he said that, after seeing the appellant head-butt Nino to the ground and then twice push Jerome to the ground, he had gone to another (back) room to telephone the police, before returning to the front window to see John Goodwin and some others (none of them the appellant) arguing with Nino, and at that stage “I saw the coloured lad hit the floor with some force”. In a second draft dated July 1999 the quoted sentence and any reference at this point to Jerome was simply omitted. Also in July 1999, on 27^th July, Mr Haftavani evidently signed and dated another letter, which was handwritten by some person unknown and in which his own name was misspelt, saying that he was writing “in support of Mrs Geraldine Phillips’ letter”. (It appears that she wrote a letter to the trial judge, Mrs Justice Smith, which Mr Haftavani confirmed before us that he did see.) The letter which Mr Haftavani signed read:

“I would like to say to my believe Victor Hughes did not commit this murder even though the police officer put words in my mouth, I do not have good understanding of the english language and every time I tried to say what I know happened that night the police officer would write some-thing totally different and told me that it was put down right, again I told them I felt this statement was wrong but they did not write this down.

Also when I was a witness in Court I never said it was Victor Hughes, all I said it was the taller of the two, I did not mean Victor Hughes also the statement that was in Court was not the one I made. Yes I admit I signed it but the police stopped me in street and I was told to sign they didn’t let me read it.

My wife also received phone call from the police insinuating things about the case.

I would ask that with all the information now given from different people you would look into how this case was handled and we come out with the truth.

Yours sincerely

[Signature and date]

PS I have a lot more detailed information to this case but I would need to speak to someone person to person and have time to explain myself clearer.”

As is apparent from the letter dated 27^th July 1999, by this stage Mrs Phillips, now Mrs Hughes, was by then active on the appellant’s behalf. It is right to add that (although it is not formally part of the material which the parties agreed should be put before us in evidence) the bundle before us includes a statement from Mrs Hughes confirming this; she indicates that she approached Mr Haftavani after seeing his letter dated 7^th February 1998 and that both his draft statements were prepared by the appellant’s solicitors. The appellants solicitors took the view, for understandable reasons, that Mr Haftavani needed to have the advice of his own solicitors, before signing any statement. Mr Haftavani’s own solicitors wrote expressing various concerns. These concerns included whether Mr Haftavani would be the only witness on any appeal, what exactly he had said at the trial in 1995 and whether anything that he might now say on oath could lay him open to a charge of perjury. They also included suggestions in September 1999 that Mr Haftavani was “subjected to what almost amounted to ‘harassment’ from the North Wales Police in order to get him to sign his original statement”, coupled with concern that this might be repeated if he withdrew his original statement of 27^th November 1994, and that Mrs Phillips, now Mrs Hughes, was “in constant contact” with Mr Haftavani in a way which was “probably having a detrimental effect on Mr Haftavani”. Eventually, in July 2000, Mr Haftavani’s solicitors indicated that he was not in a position to assist in any way.

Before us in evidence, Mr Haftavani confirmed that he had not signed or been prepared to sign either of the draft statements. He said that he had been advised not to sign them, and that they should be disregarded. As regards the letter of 27^th July 1999, he acknowledged that the signature and dating were in his writing, but said that he had no recollection of it or of the other writing in which it was written. His basic attitude was that it should be disregarded until he could see the original. However, the original appears to have been sent to Mrs Justice Smith, and there is no reason to doubt that Mr Haftavani did sign a document in the terms of the letter dated 27^th July 1999. In answer to questions put to him on this basis, Mr Haftavani agreed that, when he had spoken at trial of the “taller man”, he had meant the appellant wearing a white top. Although counsel for the appellant submits that the appellant and John Goodwin were in fact about the same height, at trial the former was clearly being identified by witnesses as the tall man in a white top and the latter as the plumpish man. The second paragraph of the letter dated 27^th July 1999 does not reflect the appellant’s account either at trial or before us. We accept that the appellant signed the letter dated 27^th July 1999, and therefore signed a statement which was inaccurate in this respect. But his evidence on oath has been consistent, and, bearing in mind amongst other things that the letter was written for him by a person unknown (although we may speculate that this may well have been Mrs Hughes) and signed in circumstances which are also unknown, we cannot regard Mr Haftavani’s signature of it as undermining the account which he gave on oath at trial and before us.

Before us, Mr Hafavani did not endorse his solicitors’ comment about “constant contact” by Mrs Phillips, trying to get him to sign. He said that she just asked him to sign, “popping into” his shop, and that he had replied to any such requests by saying that he was leaving it to his solicitors. As to his original statement of 27^th November 1994, we mention at this point that this was consistent with Mr Haftavani’s evidence at trial of an assault by the appellant on first Nino, and then twice on Jerome, in each case causing falls to the ground, followed in relation to Jerome by a further assault before Jerome had got up causing Jerome’s head to go down backwards and bang on the pavement loudly. The statement goes further than Mr Haftavani’s evidence in referring positively to a punch by the appellant as the cause of Jerome’s final movement backwards and down onto the pavement.

Asked before us whether he had made his statement of 27^th November 1994 “quite freely”, Mr Haftavani said “Yes and no”, because he had wanted to go into further details, such as telephoning the police, but he confirmed that he had signed its contents as being the truth. He had signed it at a meeting with police in the street, rather than when it was taken in his shop or flat. He said that he did “not think” that he had refused to sign out of fear of the appellant’s family. The reason he gave to us for not signing it when first taken was that he had not been quite sure; he had said at the time that he was busy.

We find ourselves unable to accept this aspect of Mr Haftavani’s evidence. The Crown has put before us and counsel for the appellant has admitted without challenge evidence from the police officers involved in the original taking of Mr Haftavani’s statement. According to them, Mr Haftavani read the statement when first taken on 27^th November 1994, and agreed its contents, but declined to sign on the ground that he was scared or concerned about reprisals on him and his business from the appellant’s family. Abbie Bond, when she made her statement on the previous day, had also been reluctant to sign, for similar reasons, but had signed (although later at trial she did not give evidence in accordance with it). According to DS Lloyd, at about 8.45 p.m. on 27^th November Mr Haftavani telephoned to say that he was now prepared to sign, and arranged to, and did, meet DS Lloyd and WDC Usher outside the Maes Gwyn Hall for the purpose.

Mr Haftavani told us that at the time of such meeting and signature, he was with his wife in one car, while a DC Yarwood and his wife and others were in another. They were all going out for dinner, since Mr Haftavani and DC Yarwood were evidently friends. Mr Haftavani told us that DC Yarwood had nothing to do with the case involving Jerome Ligale’s death, and was not involved “as far as I know”. DI Randles records, however, in his statement that DC Yarwood told him that he had given Mr Haftavani reassurances and this may have been an influencing factor in his decision to assist. That seems to us likely. Be that as it may be, there is no basis for concluding that any improper conduct or pressure induced Mr Haftavani’s original statement - still less his evidence at trial, which he endorsed before us. DC Yarwood is currently awaiting trial on charges relating to drugs and to misconduct as an officer of justice (consisting of alleged failure to recover drugs unlawfully in the possession of another), but there is nothing in that or in the other circumstances before us to throw doubt on the general truthfulness of Mr Haftavani’s original statement or of his original evidence or evidence before us.

Before us, Mr Haftavani in answers to counsel for the appellant described the appellant’s assault on Nino and then twice on Jerome, who went down on each occasion. He said that he then went to telephone for the police, and on returning to the window, he saw around Jerome on the floor a crowd, which at this stage included the appellant (we interpose to note the contrast with the two draft statements). He said that he called an ambulance, later explaining that it was Abbie Bond who probably went to make the call. Asked whether at this last stage he had seen the appellant do anything or did not remember, he said that he did not remember. But in answer to counsel for the Crown he confirmed the evidence that he had given at trial to the effect that at the last stage of events, the tall man (the appellant) had had hold of Jerome’s collar as he lay on the floor, Jerome had got punched and that his head had then banged on the floor loudly after which, he said to us, he did not get up and the tall man went away. As regards the plumpish man (John Goodwin), Mr Haftavani said at trial, as we have earlier recounted, that he was there at the last stage of events, “trying to separate them or he was talk to him”. Before us, when this passage was put to him, Mr Haftavani said words to this effect: “I don’t know, but he was there. There was no need to try to separate them because [Jerome] was drunk.” John Goodwin was not actually “physically separating”. Mr Haftavani also said however that he had been trying to tell the truth to the best of his knowledge at trial.

The upshot after hearing Mr Haftavani’s evidence before us is that it gives no cause for any concern about the truthfulness or substantial accuracy of his evidence at trial. His evidence substantially endorses the truthfulness and accuracy of his evidence at trial. Such other information as is now available regarding developments in the meanwhile also contains nothing which undermines our confidence in the general truthfulness and accuracy. Mr Haftavani’s evidence before us therefore affords no ground for allowing the appeal, and, having heard it de bene esse, there is no basis for the exercise of any discretion under s. 23 of the Criminal Appeal Act 1968 to receive it. Alternatively, if it is treated as having been received, it is incapable of affecting the safety of the verdict.

We turn to Mr Christie. It is clear that no-one at trial had any idea that he might be a potentially relevant witness. He has for just over the last two years resided in Eire from where he came to give evidence to us. He told us that he was staying overnight at the Swan on 25^th November 1994. He was a friend of the landlady, Tina Lewis, and has remained so to the present date. He wanted to move permanently into the Swan (which he later did for, at least, three months in early 1996), but was in the meantime spending a night or two a week there. He played darts, in we understand the mid-1990s, for the Swan’s darts team, and accepted that he kept close contact with the Swan throughout the time that he lived in Wrexham, in other words until 1999.

Mr Christie told us that, in November 1994, he knew John Goodwin and had “a small idea” who the appellant was, since he used to come in with John Goodwin to drink. On 25^th November 1994, Mr Christie had, he said, been in the Swan. Two young lads, one white one black, making a nuisance, had been asked by Tina Lewis to leave, and had been taken to the door. The appellant and John Goodwin had gone out into the street after them, and he, Mr Christie, had followed. The two lads had started to walk up the street with the appellant, and John Goodwin and he had followed. John Goodwin had then told him to wait. The appellant had approached the white lad and hit him in the face. The white lad had fallen, and the appellant had picked him up. The appellant had then gone to the other (Jerome Ligale), hit him, with a punch, and he in turn had staggered back and fallen. At that point, according to Mr Christie, John Goodwin had gone up to the appellant and said something and the appellant had then come walking back towards the Swan and stood just past Mr Christie, and so about 30 yards from Jerome. John Goodwin had approached Jerome, held him, punched him and Jerome had fallen again. John Goodwin had then kicked him in the face while he was lying on the floor. Mr Christie at this point had turned round and walked back into the Swan. He said that he was not aware of, and never heard, Jerome banging his head on the floor. Mr Christie said that he was present in the Swan when the police arrived later that evening, and gave his name to a police officer the next evening, but that he was never interviewed or seen by any solicitor at or about this time.

Questioned by Lord Thomas for the Crown, Mr Christie said that it was just curiosity that caused him to go out of the Swan, not any expectation that something would happen. That was not to our mind a plausible answer. Asked whether there was anyone nearer the fight that he had been, he said no. He had not told the police that he was an eye witness or had seen anything, but he had given a policeman his name on the next night, and it was for the police to contact him, if they wanted a statement. He said he was expecting this. When giving the policeman his name, he had not given an address, but had simply indicated that he could be contacted through Tina Lewis, by whom he was sitting.

The Crown put before us, with the agreement of counsel for the appellant, a page containing two lists of potential witnesses with addresses composed by the police as of firstly 25^th November and secondly 2^nd December 1994, in the course of their investigations into the events of 25^th November 1994. On neither list does Mr Christie’s name appear (which, on Mr Christie’s account, would suggest some error on the police’s part).

More importantly, Mr Christie acknowledged that Tina Lewis, the appellant and John Goodwin must all have known that he was an immediate by-stander during the relevant events. But he said that he remained unaware at all times until 1999 that the appellant was being or had been tried for murder. At some date he had been told by Tina Lewis that the appellant had been sentenced and had got a hearing, and had been asked to make a statement. He had gone to the appellant’s trial solicitors, James, James and Hatch and had made a statement (in it appears mid-1996). This statement has not been produced or located – the appellant has had at least two changes of solicitors and we accept that no criticism attaches to the appellant in that regard. However, the inference from the fact that no steps at all were taken in 1996 to re-open the correctness of the appellant’s conviction is that whatever Mr Christie said in it cannot have been regarded as sufficiently helpful in that regard. (That this was, according to Tina Lewis, the view taken by the solicitors is in fact also stated in Mrs Hughes’ statement paragraph 10.) However, we accept that neither such an inference nor a hearsay statement about a solicitor’s view of the relevance or cogency of new evidence is itself a satisfactory basis for any conclusions about the unsoundness of Mr Christie’s current account, although the giving of such a statement in 1996 and the lack of any steps taken on the basis of it are on any view consistent with the conclusions that we would anyway reach. The credibility and relevance of the new evidence now tendered by Mr Christie must turn essentially on considering that new evidence and weighing it more generally.

After 1996, Mr Christie was next involved in 1999, when Mrs Hughes arranged for him to attend the appellant’s offices and he made a statement dated 12^th November 1999. That statement gave an account of events similar to that given before us, with the qualification that it spoke of two or three kicks by John Goodwin to Jerome’s head while Jerome was on the ground. Again, Mr Christie said in it that he did not see Jerome’s head hit the ground. It concludes as follows:

“When the police became involved I was not contacted over it. I told the landlady that if needed I could give evidence but nobody ever asked me to.

At some stage I was asked to give a statement to solicitors and I went to see a person, a male, at James James and Hatch. I can’t be certain when I made this statement but I signed a handwritten statement he had prepared. I thought I gave a statement before the trial but I cannot be certain. All I know is I was never asked to go to court.

I asked the landlady did she know whey I was never called and she didn’t know. I thought nothing more of it until I received a letter from Decordova Alis and Filce [the appellant’s current solicitors] in June 1999. I agree to give a statement in respect of what I had seen.

I have no axe to grind with anybody about this case and can only tell you what I saw. Namely, that after Victor had punched the coloured lad once the lad was assaulted both by kicks and otherwise by John Goodwin.”

Mr Christie’s statement that “I thought that I gave a statement before the trial” is difficult to follow, and he could not clarify to what point in time he was referring. Nor could he clarify when it was that he asked Tina Lewis why he was never called at the appellant’s trial. However, we would assume that any such question would have been posed in mid-1996 if she asked him to help then. He explained his statement that he thought nothing more of the matter thereafter until 1999, by reference to his evidence that he did not realise until then that the appellant had been convicted of murder. He said to us that the appellant might have been in prison for assault or grievous bodily harm.

Mr Christie is not a man of good character, a matter which goes to his general credibility. He has relatively minor convictions for theft in 1986, for trespass in 1992 and for having a knife in 1996, all disposed of by fines or a conditional discharge. More seriously, he was on 26^th February 1999 sentenced to 18 months imprisonment for arson (committed on 10^th May 1998).

We have to ask ourselves whether his evidence is capable of belief and of affording any ground for allowing the appeal. We have come to the conclusion that it is not. Mr Christie on his account was the closest witness to the scene. Firstly, he was and remained at all relevant times a regular at the Swan and a friend of the landlady. He was staying at the Swan regularly in 1994 and 1995, the year of the trial, and he moved into it for at least three months on a full-time basis in the first part of 1996. In 1996 he was also asked and made a statement (now as we say unavailable) about the events of 25^th November 1994. We find incredible the idea that he did not know that the appellant was on trial for murder and did not know that he was convicted of murder. His answer regarding the possibility of assault or grievous bodily harm itself displays some familiarity with the legal background. It seems to us inconceivable that, in the community in Wrexham of which he formed a part, particularly in the Swan, the death of Jerome Ligale and its outcome in the form of a trial for murder of the appellant was not a topic of lively interest throughout the rest of 1994 and in 1995. It seems to us incredible, in the light of his involvement in the life of that community and of the Swan, and his accepted and continuing contact and friendship with Tina Lewis that Mr Christie was not aware of the current position from time to time. If he had significant evidence to give at that date, we cannot believe that he would have remained silent, or that others would not have known of it.

Secondly, not just Tina Lewis, but more importantly the appellant must, on Mr Christie’s account, as he acknowledged, have known at all material times that Mr Christie was an immediate by-stander throughout the relevant events. Yet, no-one asked him to give the important evidence which he says that he could and would have been able to give truthfully at the appellant’s trial, if he had been asked. The appellant evidently never identified him to his legal advisers as someone who could give crucial eye-witness evidence. Further, after giving a statement in 1996 (which, as we have said, did not lead to any suggestion that the appellant’s conviction was unsafe), Mr Christie himself says that he thought “nothing more of it” until 1999. That state of mind itself seems to us improbable if his present evidence is correct that the appellant had not been involved in any act which could have contributed to Jerome Ligale’s death.

Thirdly, in going through Mr Christie’s account we have identified a number of features which appear to us on any view incredible. Viewed overall, we cannot regard it as raising any plausible case for doubting the account of events that the jury clearly accepted, namely that Jerome Ligale was punched or head-butted back onto the ground by the appellant in the last stage of the fight, hitting his head loudly on the ground and so fracturing his skull. We observe that Mr Christie’s account entirely fails to account in any way for the fracture of the skull, that eventually killed the deceased. The Crown case was that this fracture was caused by contact with a hard smooth surface (namely the ground, on the Crown case, as the jury evidently accepted), although one doctor also said that a head-butt might cause such a fracture. No-one was suggesting at trial, and counsel for the appellant before us disclaimed any suggestion, that a kick or kicks could have caused the fracture to Jerome Ligale’s skull.

For the reasons we have given, Mr Christie’s evidence fails in our view to satisfy conditions (a) and (b) of s.23 of the Criminal Appeal Act 1968, and should not be received. Again, even if we were to treat it as received, it is not such as could render the jury’s verdict unsafe.

Finally, there is nothing in the conjunction of the evidence from Mr Haftavani and Mr Christie now called before us or in any other documentation or material now put before us that gives us any doubt about the safety of the appellant’s conviction. That the events of 25^th November 1994 would lead to the death of the victim and so a murder charge was doubtless unforeseen by the appellant or any observer on that date. That thought appears to us to have been the basis of Mr Haftavani’s letter dated 7^th February 1998. But the Crown never suggested, and never had to suggest, that the appellant had actually intended to kill Jerome or anyone. It was, under English law, sufficient for a conviction for murder if the appellant intended to cause some really serious bodily harm to Jerome. On the jury’s verdict, that and the other necessary elements of murder were satisfied.

Since preparing this judgment, we have read the House of Lords’ speeches delivered in R v Pendleton [2001] UKHL 66 on 13^th December 2001. As will be apparent from what we have said, the evidence we have heard raised no doubt in our minds, and we do not consider that it might reasonably have affected the decision of the trial jury to convict if it had been given at trial.

This appeal must in the circumstances fail.