England and Wales Court of Appeal (Criminal Division) Decisions

Evans and Jonathan Caffrey, R v. [2001] EWCA Crim 730 (22nd March, 2001)

Case No: 00/0407/W4; 00/0409/W4

Neutral Citation Number:[2001] EWCA Crim 730

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 22^nd March 2001

LORD JUSTICE WALLER :

Introduction

1. The appellants were jointly charged on two counts. Count 1 alleged that both appellants caused grievously bodily harm with intent to Andrew Cook on 6 November 1994. Count 2 alleged that both appellants murdered Andrew Cook on the same occasion.
2. At the first trial in February 1999 the jury were unable to agree upon any verdicts and a retrial was ordered. A second trial took place in June 1999 and the jury were discharged at a point towards the end of the prosecution case when it became clear that the prosecution were unable to call certain witnesses whose evidence had been opened to the jury.
3. The third and final trial took place at the Central Criminal Court between 8 November 1999 and 15 December 1999 before His Honour Judge Coombe and a jury. Both appellants were convicted on each count. Both appellants were sentenced to life imprisonment in relation to count 2 (murder) and minimum recommendations were made in both cases. In relation to count 1 (section 18) the appellant Caffrey was sentenced to 8 years imprisonment and the appellant Evans was sentenced to 7 years imprisonment, concurrent to the sentence on count 2.
4. Both appellants now appeal against conviction, (Caffrey on count 2 only), by leave of the single judge who referred Caffrey's application for leave to appeal against sentence on count 1 to the full court.
The facts
5. The prosecution version of events was drawn in the main from the evidence of Justin Reiss an accomplice and a witness. Reiss had never been charged with any offence despite his admissions of presence at the murder and of assisting the appellants to cover their tracks and escape. Reiss had been given an informal indication that he would not be prosecuted.
6. Based largely on that evidence the prosecution alleged that on the night of Sunday 6 November 1994, three men, Evans, Caffrey and Reiss had gone to the home of the victim Andrew Cook at 33 Downside Walk, Northolt. They were admitted to the premises without difficulty. Soon afterwards a fight started between Caffrey and Cook. Caffrey, the younger man, administered a severe beating to Cook who, it was later found, had consumed a large quantity of alcohol. Cook was rendered unconscious and lay on the floor in the living room. Caffrey had no injuries other than a cut to his hand. According to Reiss' evidence Evans had stood by and encouraged Caffrey. It was those events which gave rise to count 1.
7. According to Reiss at this point in time he was in the kitchen. Evans came into the kitchen and took a drawer out of the sideboard and picked out a knife saying that they had to finish Cook off. That would not have been said in the hearing of Caffrey he still being in the living room.
8. It was the prosecution case that Evans went back into the living room with a large knife from a drawer. Evans had stabbed Cook repeatedly in the head, face and neck. In all, some 10 stab wounds were found on Cook and indeed the knife was left sticking in Cook's neck.
9. Reiss had been told by Evans that it was nothing to do with him and so he had initially stayed in the kitchen, but he did look through the living room door and saw Evans stab Cook and he saw Caffrey standing by.
10. According to Reiss he (Reiss) panicked which caused him to wipe clean the surfaces of anything that he may have touched. He went and got into a car followed by the appellants. They went to Caffrey's house and the appellants cleaned themselves up. They all changed their clothes and Reiss drove them along the A40 where Evans disposed of the clothes one by one by throwing them out of the car window.
11. As they returned through Ruislip at 1-40am they were stopped by PCs Swan and Atkinson. Caffrey gave a false name of John Stone and other particulars but they were allowed to proceed.
12. The next day Evans telephoned Reiss and they met at Caffrey's home where tickets were available for them all to visit Caffrey's aunt, Mrs McGuane in Drogheda in the Republic of Ireland. They drove to Holyhead to catch the ferry where they were stopped by PCs Nugent and Martin. Both appellants gave false names. They proceeded to Drogheda where they stayed with Caffrey's aunt. Evans and Reiss however returned to England 48 hours later on 9 November 1994.
13. The body of Cook lay undiscovered until it was found by neighbours on Sunday 13 November 1994. There was a kitchen knife protruding from his neck and another knife with a bent blade was found nearby. The bend, as alleged by the prosecution, was due to impact with the skull.
14. There were three sets of unidentified shoe prints found at the flat in the blood of the victim. The shoe sizes were said to match those of the appellants and Reiss. There were no fingerprints of evidential significance. A set of fingerprints of Evans was found on a door frame but these could have been left by Evans at a time when he had occupied the flat, some 2 years earlier. A cloth was discovered with the blood of a stranger mixed with that of Cook. That blood was later identified as Caffrey's.
15. Dr Patel conducted a post mortem on 14 November 1994. It was his view that the deceased had died from loss of blood from a stab wound in the neck. The time of death could not be given with any certainty and this was to become a major issue at the trial because the Crown accepted that if death had not occurred between 6-7 November then the appellants could not be guilty. Dr Patel and Dr West, a consultant forensic pathologist, also gave an opinion for the Crown, together with Dr Lawler for the defence, who seemed to agree that death probably occurred only 4 or 5 days before 13 November, which would have been after the night of 6 November, although death at about that time i.e. 6 November, could not be ruled out.
16. The appellant Evans was interviewed on 17 November 1994 when he gave an account of his movements in the same terms as his evidence at trial, including mention of his having been stopped and questioned by police on 7 November 1994 in Ruislip, and on 8 November 1994 at Holyhead. He did not accept that he had been anywhere near the flat of the deceased on 6 November.
17. On 15 June 1995 police sought to interview Caffrey in Drogheda but he refused to be interviewed and refused to allow samples to be taken. Evans, it should be said, had willingly supplied samples.
18. There was little development for a period of about 2 years. On 14 November 1997 Caffrey travelled to England using a false name. It was on this occasion, having been met by Mark McGirr, that he made the following admission to McGirr. During the car journey from Heathrow to Chiswick Caffrey said that he had gone with a mate to the house of a man who had been messing around with someone's girlfriend. They had gone to the house to sort things out. There had been an argument and Caffrey said he had lost his temper and given the man a good hiding and had beaten him to a pulp and his mate had stabbed the man. His mate had gone to the kitchen and had come back with a knife and had said "We've got to finish him off"; he had stabbed the man ten times and blood had spurted out. Caffrey demonstrated a stabbing movement and smirked as he did so.
19. McGirr and Caffrey were arrested for drink and motor vehicle offences, whereupon McGirr informed police of the above conversation. Caffrey, as has been said, had travelled to England using a false name and McGirr revealed Caffrey's true identity to the police. Caffrey was arrested for murder and samples were taken from him; he was released on bail whereupon he returned to Eire. It was there that he made a second admission to McGirr, much to the same effect, save on this occasion he did not smirk and indeed he seemed quiet and said that he was gutted at what had happened.
20. At about this time Reiss had made a statement to a solicitor at the request of Caffrey's mother. That statement is dated 16 November 1997 and the account of Caffrey and Reiss were in broad agreement.
21. Caffrey's extradition was sought from Eire which he resisted. Extradition was ultimately granted on 23 March 1998 and Caffrey was returned to this country. Evans and Reiss were also questioned on 23 March 1998.
22. In interviews Evans denied that he had gone to the flat of the deceased on 6 November 1994. He said that on 6 November he had gone to a party in Ruislip with Caffrey and Reiss and they were stopped by the police on the way home. He said that he went to Ireland the next day with Caffrey and Reiss to find work, but as there was no work he returned to England. He said that Caffrey and Reiss were lying about him going to the flat of the deceased.
23. Caffrey could not be interviewed following his extradition from Eire but he produced a prepared statement in which he said that he had acted in self defence when the deceased had attacked him. He said in his statement that he did not know that Evans was going to stab the deceased.
24. The prosecution were asserting two alternative motives for the attack upon Cook based on the various accounts of Reiss and Caffrey. The first was that Cook had made sexual advances towards Samantha Tebbenham, a girlfriend of Evans, whilst Evans was in prison in July 1994. The alternative was that Cook had been spreading rumours that Caffrey had been having sexual relations with Samantha Tebbenham whilst Evans was in prison. The latter would appear to be more consistent with Caffrey attacking Cook, as described by Reiss.
25. Samantha Tebbenham was to be called as a witness by the Crown. There was considerable discussion about the evidence that she should give. The Crown accepted that she should not be entitled to give evidence of Evans' general disposition i.e. evidence of violence unconnected with jealousy towards her or general bad character.
26. The judge did however rule that Samantha Tebbenham could give evidence, and indeed she did give evidence, that Evans was jealous. She further gave evidence that possibly in January 1995, after their relationship had ended, that he had damaged her home because she had refused to go back when he asked her to. She further gave evidence that Evans would probably have reacted badly if any rumours had been floating around involving her and Caffrey because he was the sort of man who needed to save face. She however denied in evidence that she had told Evans about any approaches made by the deceased. Furthermore, she said that she had not had an affair with Caffrey nor had she heard any rumours to that effect.
27. So far as Evans was concerned the critical issue at the trial was the evidence in relation to time of death. In that regard there was the medical evidence to which we have already made reference and there was certain other evidence. There were 7 witnesses called by the Crown who might have expected to see the victim after 6 November, but they said that they had not. There were in addition a number of witnesses called by the defence who had originally given statements to the police to the effect that they had seen the deceased after 6 November. These witnesses had been re-interviewed by the police following the interviews of Reiss and the admissions of Caffrey becoming known to the police. Those witnesses in large measure still gave evidence that they had seen the deceased after the 6 November, but this re-interviewing by the police gave rise to an application on behalf of Evans to stay the proceedings as an abuse of process and has given rise to a major ground of appeal on his behalf.
The evidence of Reiss in more detail
28. Reiss said that he was not involved in any plan to harm the deceased when he and the appellants went to the flat of the deceased on the night of the 6/7 November 1994. He had gone to bed with a migraine during the night of Sunday 6 November when Brett Evans telephoned him. Evans asked Reiss to collect him and Caffrey who were both drunk and drive them home. He reluctantly did so because Evans was not an easy person to refuse. He denied that there was a party as he had wrongly said in a previous statement.
29. About midnight as he drove the appellants home, Evans directed Reiss to Downside Walk. Reiss had never been to the flat of the deceased before. Evans said "they want to sort something out" because it seemed that somebody had been "messing around with Evans' girlfriend Samantha". Evans told Reiss to wait "because it could turn nasty and in case of trouble". There was no talk of murder or of attacking the deceased.
30. The appellants went to the flat and Reiss followed but he was somewhat inconsistent as to the time lapse before he did so. In the flat Reiss heard a commotion. He thought Caffrey said to the deceased, whom he did not know, "are you calling me a fucking liar?" Reiss then saw Caffrey fighting with the deceased as Evans stood by "egging Jonathan on".
31. Reiss said that he wanted to go home but Evans told him to wait outside. The fight continued and again Reiss asked to leave. He did not recall going further into the room, but he saw the deceased laying on his back with an injured face and he appeared to be unconscious and breathing like an asthmatic.
32. Reiss left the room and Evans went to the kitchen saying that he "was going to finish him off otherwise he would identify them and they would be done for attempted murder because of his beaten state". Evans then returned to the room and he was armed with a kitchen knife. Evans told Reiss to wait outside because it was nothing to do with him.
33. Reiss was scared and looked into the room. Caffrey was standing there. Evans stood over the deceased and was stabbing him around the neck and causing a jet of blood. As Reiss left he panicked and wiped various surfaces with a cloth to remove his fingerprints. Reiss said that Caffrey disapproved of what had happened to the deceased and that Caffrey was upset, but Evans "was as cool as a cucumber". Reiss drove the appellants to Caffrey's home where they changed items of their clothes. Caffrey had a cut hand. They went along the A40 where Evans disposed of the clothes.
Evans' defence
34. Evans relied first on the combined evidence of the three pathologists who were called. Their evidence was that although it was not impossible it was highly unlikely that when the body was discovered the deceased had been dead for as long as 7 days. Dr Patel had examined the body at the murder scene and found rigor mortis still present. His original opinion given at the inquest was that the deceased had been dead "for up to 5 days". The body was removed to the mortuary 24 hours later and so, on the Crown's case, had lain in situ at the crime scene for 8 days. Signs of decomposition were slight and consistent with 4-5 days from death (Dr Lawler) or 5-6 days (Dr West).
35. The surrounding temperature was of great importance since all the signs of rigor mortis and decomposition were accelerated by warmth and slowed by cold. There was no evidence as to whether the heating in the flat of the deceased was switched on, although the state of dress of the deceased was consistent with warm surroundings. Even if the heating was off, Dr West thought that the interior temperature would not have fallen below the average outside maximum over the relevant period which was 14-15 degrees Celsius.
36. The evidence of Dr West was that, in his long career, the most extreme case of the presence of rigor mortis previously encountered was one of 7 days after death in an unheated flat with temperatures close to freezing. Dr West and Dr Lawler concurred in the view that "it was highly unlikely" that the body, in the condition that it was found, could have lain as long as 7 days before being discovered.
37. The second aspect of Evans' defence was the number of independent witnesses, neighbours and acquaintances of the deceased, who had made statements to the police very shortly after the event to the effect that they had seen the deceased alive on days after 6 November, or had heard his voice or seen or heard activity at his flat that tended to show that he was alive after 6 November.
38. Some of these witness statements were read at the trial and unchallenged by the Crown, but with the usual warning as to the absence of cross-examination.
39. It was these witnesses who had been revisited by the police after the arrest of Evans in April/May 1998. Many of them were told that their evidence had been proved to have been mistaken; that the deceased was definitely dead before their sightings of him; or that they had "seen a ghost". An application accordingly was made at the trial on behalf of Evans that this revisiting amounted to an abuse of process. The judge concluded that on a number of occasions the police officers had behaved improperly in the manner in which they had taken the new statements, but he declined to stay the proceedings.
40. Evans gave evidence at the trial and said that he was a friend of Caffrey and knew Reiss. He said that Reiss had lied against him but he was not aware of any grudge. After he and Reiss returned from Ireland Reiss did not avoid him through fear. He never challenged Caffrey about his alleged lies against him and they were kept apart during the proceedings. He was not aware of any association between his girlfriend Samantha Tebbenham and the deceased, or Caffrey. He admitted that he had smashed Samantha's furniture, in about October 1994, when their relationship ended. His sister Marcia had a relationship with the deceased, and he got on well with the deceased and had no grudge against him. He was not aware of any grudge between Reiss and the deceased, and, as far as he knew, Caffrey did not know where the deceased lived. He said he would not have minded if Caffrey was having sex with Samantha.
41. Evans denied that he had visited the flat of the deceased and said that he had no knowledge of the beating up or of the murder, although during that night he was in the company of Caffrey and Reiss for innocent purposes.
42. When the police stopped them in Ruislip Caffrey had given a false name because Caffrey was wanted for a driving offence. They had been looking for a party in Denham which Reiss had mentioned. He had telephoned Reiss about midnight after he had been to Paddington Green police station about a stolen car. He got home at midnight or 1 o'clock in the morning. He had visited a public house in Rayners Lane later that night with Caffrey, and when he telephoned Reiss he was drunk but not paralytic and Caffrey had drunk about the same. Reiss met them at the station and they did not find the party, having spent about half an hour looking for it. The police spoke to them. There was nothing wrong with Caffrey's hands. They went home where he arrived about 2-20am. He did not go to the house of the deceased that night.
43. Evans admitted giving his brother's name when they travelled to Ireland and were stopped by the police, but that was because he was on probation at the time. It was Caffrey who had suggested that they went to Ireland to look for work and Evans wanted to sell a car there. They decided on 7 or early 8 November to go to Ireland. Evans did not say goodbye to his family.
44. Evans was cross-examined about various variations between his witness statement and his interview. He said that he and Reiss did not like Ireland and that they returned the next day without telling Caffrey. The car was not sold.
Caffrey's defence
45. Caffrey did not give evidence. His case was that he went to see the deceased at his flat on 6 November where the deceased attacked him, and he only acted in self-defence. In his prepared statement given to the police he said that he had been attacked by the deceased with a glass at a time before Reiss arrived. In that statement he further said that he did not encourage Evans to kill Cook and that he had been surprised by the actions of Evans.
46. A submission of no case to answer on the count of murder was made on behalf of Caffrey but was refused by the judge. The first ground of appeal in Caffrey's case relates to that refusal. That refusal, asserted by Mr Barrett on behalf of Evans, had an affect on the defence of Evans in that Caffrey's defence was conducted in a manner that was hostile to, and calculated to undermine, the defence of Evans.
47. One witness was called by Caffrey, his cousin Ronan McGuane, who stated that Caffrey had remained in Eire at his parent's house and shared a bedroom with him from the morning of 8 November 1994 to the time beyond 13 November 1994. This evidence was clearly damaging to Evans' case if accepted. Taken together with Caffrey's blood at the murder scene, it tended to exclude the possibility that the murder had taken place after the three men had left for Eire on 7 November 1994.
Grounds of appeal so far as Evans is concerned

Ground 1; Abuse of process, interference with witnesses

48. This matter was fully argued out before the trial judge over 2 days. Mr Barrett, for Evans, relied and relies before us on the starting point which was that these witnesses were being asked to give evidence in November 1999 about events in November 1994. The unusual delay was itself raised as a ground in the abuse of process argument but is not now pressed. It is simply a factor that there was this period of delay caused through no fault of Evans. It was largely due to Caffrey's absence in Eire. The second factor is that these witnesses were to be called by Evans and thus, unless they could be treated as hostile, there was no prospect of cross-examining them as to the way that they had been revisited and the effect of those revisists upon their evidence.
49. Mr Barrett's complaint is twofold; first that these witnesses were revisited at all by the police in the context of Caffrey's admissions to McGirr and Reiss's statement; second the way in which the witnesses were in fact approached. The complaint is that various of the witnesses were told, as if it was established as a fact, that the deceased had been killed on 6 November. Mr Barrett submitted that the accurate way to put the matter was that it was being asserted that the deceased had been killed on 6 November and there was a body of evidence which supported the view that he had in fact not died on that date.
50. Mr Barrett suggested that there were two possible motives for the police revisiting these witnesses. The first would be a genuine concern that the evidence of Reiss might be false and that the deceased was not killed on 6 November. The alternative was that the police intended to pursue the prosecution of Evans and Caffrey on the basis of the account of Reiss, and that knowing that they would be obliged to disclose the statements of these witnesses, the police were embarking on a "damage limitation exercise" to persuade those witnesses that they might be mistaken. Mr Barrett invited the judge, as he invited us, to draw the inference that all the available evidence showed that the motive behind the revisits was for the second motive, which he described as "an improper one" seeking to interfere with the evidence of the witnesses who might help the defence.
51. We have no doubt that the ruling of the judge on this aspect was right. There was nothing improper in the police revisiting the witnesses. It would be quite improper for the police to put inaccurately the evidence in order to obtain a statement or a change in a statement from a witness. However, in this case it must be remembered it is not the statement which is important, it is the evidence which is ultimately given at the trial. In the circumstances of this case original statements had been obtained, the police had revisited and possibly obtained changes in those statements, but, the defence solicitors were in a position to visit those witnesses themselves and put to those witnesses any aspect on which they had been misled by the police. An analysis of the evidence given by the witnesses relied on by Evans, unchallenged by Mr Barrett, would seem to be as follows. The appellant Evans relied on 17 witnesses, three of whose statements were put in under section 23 of the Criminal Justice Act 1988, of which only three did not come up to proof. The appellant therefore had the benefit of 12 witnesses who provided the expected evidence of post 6 November sightings of the deceased. Where witnesses had been told in terms that the deceased had died before retracting their 1998 statements, the prosecution did not cross-examine any witnesses upon those retraction statements. In his summing-up the judge criticised what the police had said during certain of the 1998 visits (see page 107G to 108E; page 120B and page 121F).
52. The judge furthermore gave the direction that if any one of the witnesses might be right, that was the end of the case against both defendants.
53. In R v Heston-Francois 1984 78 Cr.App.R. 209 this court considered the jurisdiction of the court to stay proceedings for abuse of process. In that case the main ground relied on was the improper obtaining of evidence and seizure of a defendant's documents prepared for his defence. But one ground included an allegation that the police had interfered with the defence by approaching a potential witness for the defence. Counsel had to concede in that case that the evidence of the witness was unaffected by the approach and that the witness gave the evidence that he was prepared to give. What the court ruled was:-

"However reprehensible conduct of this kind may be, it is not, at least in circumstances such as the present, an abuse or, in another word, a misuse of the court's process. It is conduct which, in these circumstances, falls to be dealt with in the trial itself by judicial control upon admissibility of evidence, the judicial power to direct a verdict of not guilty, usually at the close of the prosecution's case, or by the jury taking account of it in evaluating the evidence before them; thus, the trial judge in the instant case had not erred in any way in refusing to hold a pre-trial inquiry and as there was no reason to suppose that the verdict was either unsafe or unsatisfactory, the appeal would be dismissed."

54. Mr Barrett suggested that that approach was not available in the instant case because the judge could not control the admissibility of the evidence since it was evidence that the defence desired to call. It was further difficult for the jury to evaluate the evidence because of the inability of the defence to cross-examine the witnesses in relation to the approach by the police and the difference that it may have made to them. It may be true that the judge could not control the matter by ruling on the admissibility of the evidence, but the other two methods of control, it seems to us, were available, the judge giving a very clear direction to the jury in relation to those cases where the police had behaved improperly. But of critical importance is that if the judge had taken the view that defence witnesses had been truly interfered with and were giving evidence against the defence interest, whereas without that interference they would have given evidence for the defence, there is no doubt the judge would have had the power to stop the trial and have a verdict of not guilty entered. The analysis of the evidence demonstrates that there is no basis for suggesting that the judge should have exercised that control in this case. As to the safety of the conviction, we will deal with that when we have dealt with the other points.
Ground 2; Severance
55. It is accepted by Mr Barrett that it is normally desirable that defendants jointly charged with the same offences should be tried together. He recognised the point made by Sir Allan Green QC that it is a fundamental principle of criminal procedure that defendants jointly charged with the same offence must be tried together save for exceptional circumstances - even where joint trials would involve evidence which would be inadmissible against one defendant (R v Lake 1977 64 Cr.AppR. 172, R v Mogul 1977 65 Cr.App.R. 56).
56. What is submitted by Mr Barrett is that there were exceptional circumstances in this case. He sets those out in his skeleton argument. They are of course cumulative and come to this. First the Crown's case depended on the evidence of Reiss; the allegations against Evans did not surface until 3½ years after the crime; there was clearly collusion between Caffrey and Reiss; Caffrey had given no account in interview because of the rules governing extradited prisoners; but nonetheless Caffrey's account was put before the court by way of two informal confessions made to McGirr and in a prepared statement handed to the police. Those three accounts could not be tested by interrogation or cross-examination. All three were fundamentally self-exculpatory, at least so far as the murder count was concerned, and highly prejudicial to Evans.
57. We take the view that the above do not produce exceptional circumstances and that this was clearly a case in which a joint trial should have taken place. The matters referred to were dealt with in the summing-up and that was the appropriate course in this case.
Ground 3; Fingerprint evidence
58. Mr Barrett complained that there was no reference in the note that he had of Sir Allan's opening of the case that reference would be made to the fact that the fingerprint of Evans had been found on the door frame of the living room. Mr Barrett believed that this evidence was clearly irrelevant because it was as consistent with Evans having been in the flat some 2 years before, as with Evans being in the flat on 6 November. The non-reference in the opening note Mr Barrett thought was deliberate and was because the prosecution did not intend to adduce the evidence. Sir Allan then did refer to this fingerprint evidence in his opening speech. So far as Sir Allan was concerned, as he explained in his skeleton before us, he thought that since no defence objection had been notified it was open to the prosecution to refer to that evidence.
59. It is understandable how reference to this evidence came to be made. But, the evidence does appear to have been irrelevant. However, it was treated as such from the moment that it was mentioned and it does not seem to us that reference to it prejudiced the case of Evans in any way. It certainly does not produce a ground for suggesting that the verdict of the jury was unsafe.
Ground 4; Evidence of disposition; Samantha Tebbenham
60. As already indicated considerable care was taken to excise from the evidence of Samantha Tebbenham matters relating to general disposition. Mr Barrett however complains that certain aspects were left in which should not have been left in. The prosecution were permitted to adduce evidence through her of the following: (a) that during July 1994, while Evans was serving a short prison sentence, Andrew Cook had visited her, borrowed £30 from her and made improper advances to her. She had not told Evans of this. She had told Caffrey about the loan but not the advances; (b) she had never been aware of any rumours circulating about any sexual liaison between her and Caffrey, or between her and Cook; (c) Evans' general attitude towards her was one of jealousy; (d) Evans was "the sort of person who didn't like to be seen to lose face. If people were spreading rumours about him he didn't like people to think he wasn't doing anything about it"; (e) in October 1994 there was an occasion when Evans was drunk (Reiss had claimed that Evans was drunk on the night of the murder), and had become enraged because she had decided to stay the night with a female friend and refused to obey his instructions to return home. Evans had telephoned her at her friend's house and smashed up her flat whilst giving a running commentary.
61. Mr Barrett submitted that there was no objection to (a) and (b) above which related to the circumstances that lay behind the alleged motive. He however suggested that (c) (d) and (e) went only to the general disposition of Evans, specifically that he was jealous, possessive, and violent, particularly when in drink.
62. Mr Barrett further relied on the fact that other evidence which might have demonstrated jealousy, so far as Samantha Tebbenham was concerned, was not admitted and thus he submitted that there was inconsistency. This evidence related to an incident removed in time from the period of the murder.
63. An issue in the case was a motive for the attack on the deceased. We have already set out the alternative motives which the prosecution sought to establish. In particular the suggestion that the deceased was spreading rumours about Caffrey having a relationship with Samantha Tebbenham. Evidence that Evans had a jealous disposition towards Samantha at the period when the attack and the murder took place, and that that led him to violence, was in our view admissible. The fact that that also put into evidence in broad terms a "disposition" does not make it inadmissible. This evidence was not simply evidence that Evans generally had a jealous or possessive or violent disposition when in drink, which the prosecution conceded, very properly, would not be admissible. This was evidence that Evans was jealous or possessive of Samantha, a jealousy or possessiveness which in the very period when the attack and the murder took place, provoked him to violence. The judge was correct in his ruling and there was no inconsistency.
Ground 5; Cross-examination of Reiss on behalf of Caffrey
64. Reiss had given evidence in accordance with statements that he had made to the police which in some respects were adverse to Caffrey. They were also of course adverse to Evans. It would not have been permissible for Sir Allan Green, on behalf of the Crown, to support the credibility of Reiss by referring him to previous consistent statements that he had made. "The general rule at common law is that a witness may not be asked in chief whether he has formally made a statement consistent with his present testimony". See the current edition of Cross & Tapper on Evidence (1999) at page 271.
65. What however Mr Davies QC, for Caffrey, sought to do in order to bolster the credibility of Reiss in the eyes of the jury, so far as the evidence of Reiss assisted Caffrey, was to put to him certain of the previous statements that he had made in order to demonstrate his consistency. Mr Barrett sought to object to Mr Davies so doing. It seems that this all took place at about 4-0pm on a Friday afternoon. One of the complaints of Mr Barrett is that the judge did not adjourn the matter until the Monday morning so as to enable Mr Barrett to provide authorities for the proposition which he sought to advance, which was that the general rule at common law did not simply apply to a witness being asked questions in chief. The judge, in refusing to adjourn the matter until the Monday, ruled that Mr Davies could ask questions on the statements provided by Reiss. Two such questions were asked, which in our view added very little to the evidence in the trial, but the point is taken on appeal that Mr Davies should not have been allowed to ask those questions.
66. Mr Barrett points to the footnote to the above quoted passage from Cross & Tapper which now reads "nor in cross-examination where the witness is not adverse to the cross-examiner: R v Wood (1989) 51 CCC (3d) 201 at 231".
67. R v Wood is a Canadian case where the circumstances were very different from those which prevail in the present case. The three Wood brothers were being prosecuted for offences, the nature of which matter not, and all were relying on the same alibi. There was no conflict of interest between any of them. In that context one brother A called a witness, who, in addition to providing an alibi for A also provided alibi evidence for another brother B. Counsel for that brother chose to cross-examine the witness first by establishing that in her witness statement to the police she had not mentioned the fact that her evidence assisted defendant B. Counsel then established that the witness had in fact provided this information to the police in a video taped interview which she had repeated "quite a few times". The court was plainly of the view that the asking of these questions was a tactical device in order to enable the video to be shown for a collateral purpose of demonstrating the oppressive manner adopted by the police during the interview.
68. In our view the broad proposition in the note in Cross & Tapper is not truly justified by the authority. One can fully understand that the basic rule should not be circumvented by cross-examination on behalf of a friendly party bringing out that which could not have been brought out in evidence in chief simply to assist the first party. But there will be circumstances where, although it will be possible to say that the witness is not "adverse", fairness will demand that a defendant should be entitled to bring out the pre-existing consistent statements in order to enhance the evidence of that witness for the benefit of that defendant.
69. In our view that was clearly the circumstance existing in this case. In any event, the questions asked could have been put differently and produced the same answers without infringing any rule. They in any event, as indicated, added very little to the evidence in this case.
Ground 6; Pathologist evidence and the summary thereof
70. Mr Barrett suggested that the judge should have gone into much greater detail so far as this evidence was concerned. The pathologists had explained by reference to rigor mortis or green discolouration or marbling or bloating or hair loosening or skin slippage, why it was that they took the view that they did.
71. We do not think that a judge is bound to go into the full details of this evidence. The judge put the matter as favourably for the appellants as it was possible to do so far as the conclusions of the pathologists were concerned. It is true that so far as Dr West's personal experience of rigor mortis is concerned, he did not expressly mention the 7 days although he was asked to do so by Mr Barrett, but it must have been clear to the jury that the view of Dr West was that if death were to have taken place more than 7 days before discovery of the body, that would have been outside the range of his previous experience. In our view no criticism can be made of the summing-up on this aspect.
Conclusion on the appeal against conviction of Evans
72. In our view, neither singly nor cumulatively, are there grounds rendering the conviction of the appellant Evans unsafe and we dismiss his appeal.
Appeal against conviction of Caffrey
73. Caffrey does not challenge his conviction on count 1. He challenges his conviction on count 2 on two bases. First, he asserts that at the close of the prosecution case on the murder count there was no case to go to the jury. In the alternative he asserts that if there was a case to answer the jury were misdirected on the applicable law and the verdict of the jury is thus unsafe.
Was there a case to be left to the jury?
74. The Crown's case against Caffrey was that he was an aider and abettor. Sir Allan Green and Mr Davies accepted that the relevant exposition of the law on this aspect is to be found in the well-known passage of Hawkins J in R v Coney and others (1882) 8 QBD 534 at 557. Mr Davies drew our attention to the fact that R v Coney was concerned with a prize fight and the question whether spectators at a prize fight were aiders and abettors, which is far removed from the factual context of the present case. However he accepted that the statement represents the law and indeed accepted that it had been applied in R v Clarkson, Dodd and Carroll [1971] 55 Cr.App.R. 445 in the judgment of the court given by Megaw LJ at 449-450. That case was concerned with whether certain soldiers who went into a room where a rape was taking place were aiders and abettors even though they did nothing to hold the girl down and nothing physical to encourage the rape that was taking place. The relevant passage is as follows:-

"It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not".

75. By the close of the prosecution case the following is a summary of the evidence, so far as Caffrey is concerned, and so far as the murder was concerned. First, Caffrey had said to McGirr that he had given the deceased a good hiding and beaten him to a pulp, and that his mate had stabbed the deceased. According to Caffrey his mate had gone into the kitchen and come back with a knife and had said "we've got to finish him off"; Evans had then stabbed the man 10 times and blood had spurted out. On this first occasion Caffrey had smirked to McGirr as he demonstrated the stabbing movement.
76. On the second occasion, some two weeks later, Caffrey had again said to McGirr that he had given the deceased a pasting and had beaten him unconscious; he had also smashed the place up and had hurt his knuckles on the television set. He said that Evans had then disappeared and had come back with a kitchen knife and said to Caffrey "we've got to finish him off". Evans had stabbed the deceased and blood had spurted out and once again Caffrey demonstrated the stabbing movement, but on this occasion he was quiet and not smirking and he appeared to be gutted about what had happened.
77. According to the evidence of Reiss, Caffrey and the deceased had fought with Evans egging Caffrey on. Reiss was in the kitchen when Evans came in and took a knife from a drawer saying that he was going to finish the deceased off otherwise the deceased would identify them and they would be done for attempted murder. Evans said to Reiss "it's nothing to do with you - wait outside" and walked back into the living room. Reiss pushed the living room door open and saw Evans standing with his feet astride the body of the deceased bending down and stabbing the body. Caffrey was standing nearby but was not doing or saying anything. In cross-examination by Mr Davies on behalf of Caffrey, Reiss agreed that Caffrey would not have heard what Evans had said to Reiss in the kitchen; that a very few moments had elapsed between the time Reiss saw the knife in Evans' hand and the time Evans was stabbing the deceased, and that there was nothing that Reiss himself could have done physically to stop Evans.
78. It seems to us that the judge was clearly right in ruling that there was a case to go to the jury. Caffrey and Evans had been involved in a joint enterprise in beating up the deceased. They both had a motive, and perhaps Caffrey's was stronger for finishing the deceased off, in order that neither of them would be identified. Caffrey was in the room following the fight when Evans returned armed with a knife saying "we've got to finish him off" and Caffrey did not suggest to McGirr on either occasion that he (Caffrey) dissented or protested at what Evans was clearly about to do. At no stage did Caffrey suggest that he made any protest as to what Evans was doing during the attack on the deceased when the deceased was stabbed 10 times. On that evidence the jury would be entitled to conclude that Caffrey intended to encourage, wilfully did encourage, and that Evans was encouraged in the attack which he made on the deceased. They would be entitled to conclude that Caffrey was not just voluntarily present at the scene of the crime, but that, following a joint attack without a knife, Caffrey assented to Evans "finishing Cook off". Caffrey had the time and even the power to try to prevent the attack by Evans but he did not do so. It was for the jury to decide whether the ingredients were present to make Caffrey an aider and abettor, and the judge's ruling to leave the case for the jury was, in our view, clearly correct.
Direction to the jury
79. The direction in relation to count 2, so far as Caffrey was concerned, was given in the following terms in the first instance:-

"In count 2, the murder, Reece does not say that Caffrey ever said anything by way of encouragement. Let me be quite clear about this; mere presence is never enough. It may be of some evidential value in considering whether he was participating, but a simple presence is not enough. If what happened on that night of the 6th/7th was that of his own volition Evans got hold of a knife or knives and killed Cook, if all that you are satisfied about is that Caffrey was there, but simply as a bystander, not giving any encouragement at all, then he would be entitled to be acquitted both of murder and manslaughter. It is no criminal offence to stand by as a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime, but the fact that a person was voluntarily and purposely present, witnessing the commission of a crime and offered no opposition to it, although he might be reasonably have been expected to prevent and have the power to do so, or at the very least to express his dissent, might, I stress that word, under some circumstances afford cogent evidence so that you, the jury, would be justified in finding that he wilfully encouraged, and so aided and abetted.

Well, members of the jury, present evidence. There is no sign of him doing anything to intervene but that is not necessary. What is there to show that he was encouraging? There is a distinction between him and Reece; you will remember he was sent out of the room on the night it took place. He stayed. There is the fact that he had the most to gain from the death of this man because in view of the beating, if you think he gave it to him, when in fact he caused grievous bodily harm with intent, would come to light if Cook lived and was able to name his assailant, so he had something to gain in this man being finished off. Ultimately, you must decide if there is sufficient evidence to show that he actually gave some form of encouragement. It is, as I say, one of the many difficult parts of this case, it is a matter that you must look at with extreme care, and only if you were satisfied in the particular circumstances in this case that it had amounted to encouragement as opposed to him simply being there as a bystander, and the initiative to murder was Evans and he did not intervene, he did nothing whatever to encourage Evans, if that may be the position you must acquit, whatever else you do, Caffrey of count 2, the murder".

80. Following an intervention by Sir Allan Green in the absence of the jury the judge expanded a little, in the following way, at page 36D:-

"There is one gloss, members of the jury, that I ought to put on what I said to you about encouragement, particularly in the case of the second defendant in count 2 of murder. I pointed out to you that you must be satisfied so you are sure that he was encouraging, I ought perhaps to have added that the other man, and of course for these purposes it would be Evans, is actually encouraged or was encouraged by the encouragement of Caffrey".

81. As the judge had made clear this was a difficult part of the case, so far as the jury was concerned, and the jury sent out a note, that note and the judge's answer thereto are set out in the transcript for 14 December 1999 in the following terms:-

"Members of the jury, I have had this note from you:

"Please verify what a person at a murder scene might do, or not do, to be guilty of murder, without wielding the fatal blows, either at that time or later".

Let me, as it were, start at the end.

If somebody assists a murderer or murderers, being involved in some sort of crime only after the crime is all over -- do you follow --that person would not be guilty of the principal crime.

Applying it to this case, the Crown have never suggested that Reece took any part at all in the murder. He was a witness of the murder -- if his evidence is accepted by you as accurate and it satisfies you -- he was a witness to the murder and on his own story, he helped afterwards, taking the man or men responsible away from the scene by car, and going off to Ireland, and so forth --do you follow -- but he had taken no part in the actual killing. He was merely -- in part at least -- a witness to what had happened.

A man in his position, even though he might have been prosecuted for assisting an offender, is not guilty of murder because his help has come after the crime is over. I hope that is clear.

You ask specifically what a person might do, or not do and I think we can forget the words "not do". A person who does not himself administer the fatal blows, can only be guilty if you, the jury, are satisfied that he was a participant in the sense that he -- and this is really in sense applicable to this case -- encouraged the other man to do it -- do you follow?

Mere presence is not enough; help afterwards is not enough. That is why Reece, on the evidence you have heard, is not charged, and never has been, with murder. Mere presence is not enough and mere help afterwards is not enough. He must be actually, in your view -- and you must be satisfied about it so that you are sure -- giving encouragement and, indeed, that encouragement must in fact encourage the person who is wielding the blow -- do you follow?".

82. There is then a passage which it is unnecessary to set out since it duplicates what has so far been said. But there is an interchange between Sir Allan and the judge as follows:-

Sir Allan: "My Lord, I would respectfully say actual encouragement coupled with intention to encourage.

Judge: Yes, I hope that was implicit, if not explicit, Certainly there must be an intention to encourage, and not merely encouragement, yes."

83. It is said that in those directions the judge did not lay great emphasis on the admissions that Caffrey had made to McGirr including the statement of Evans as he came back into the room with the knife. But, that evidence was reviewed in detail from page 134 through to page 136. Indeed the judge emphasised the importance of the statement "we've got to finish him off" and the smirk on Caffrey's face at page 135D-G.
84. The direction made absolutely plain that presence was not enough; that there had to be an intention on Caffrey's part to encourage; there had to be actual encouragement and Evans had to be encouraged, before the jury were entitled to be sure that Caffrey was an aider and abettor of the murder. In those circumstances no valid criticism can be made of the judge's direction. If he had emphasised during that direction the statement that Caffrey admitted that Evans made to him when Evans came back from the kitchen into the living room, that could not have been said to have been a direction in Caffrey's favour.
85. It must be remembered that Caffrey did not give evidence. There was a case to answer and he chose not to answer it. In our view there was no misdirection and the verdict of the jury was safe. Thus Caffrey's appeal must be dismissed also.
Caffrey's application for leave to appeal against sentence
86. That is an application that would only have been pursued if his appeal against his conviction for murder had been upheld. Thus nothing further needs to be said about it.