Case No: 98/2319/W2
 
IN THE COURT OF APPEAL 
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 24th February 2000

B e f o r e :

LORD JUSTICE KENNEDY
MR JUSTICE BRIAN SMEDLEY
and
MR JUSTICE GOLDRING

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	REGINA		
	-v-		
	ROBERT EMMETT CAIRNS		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
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Robert Rhodes QC & David Harounoff  (for the Appellant)
James Townend QC & Michael Warren  (for the Prosecution)
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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Kennedy:
1.	On 13th March 1998, in the Crown Court at Lewes, the applicant was convicted of murder, and was sentenced to life imprisonment.  He now renews his application for leave to appeal against conviction after refusal by the single judge.

2.	Summary and Verdict.
	The victim of the murder was Justin Hayward, a leukaemia sufferer aged 19, who arrived in Brighton on 14th October 1996 and was given accommodation at the Royal Promenade Hotel.  The applicant, aged 25, and Paul Steven Maynard, aged 21, were also accommodated at that address, and at about 8 pm on 19th October 1996 the three men were in each others company on Brighton sea front near to Duke’s Mound when Hayward was attacked with appalling ferocity and received injuries from which he died.  There were injuries to the face and scalp consistent with blows from shod feet or punches, followed by over 40 stab and puncture wounds to the side of the neck and to the face.  The stab wounds were the cause of death.  As the trial judge puts it when summarising the uncontradicted evidence of the pathologist “he died, and died only because of the stab wounds to the neck”.  
	After the attack the applicant and Maynard left Hayward to die, if he was not already dead, and in due course they were both charged with his murder.  The case for the prosecution was that it was joint enterprise, but at the trial Hayward was acquitted of murder and convicted of causing grievous bodily harm with intent.  In the context of this case that can only be interpreted as meaning that the jury was not satisfied - 
(1) that Maynard inflicted any of the fatal stab wounds, or -
(2) that when the applicant was inflicting those wounds he was acting within the scope of a joint enterprise to which Maynard was a party.

3.	Evidence
	We turn now to the evidence.  The applicant was clearly a disturbed young man  who, on 15th October 1996 was considered by observers at Guy’s Hospital, London to be distressed and unstable.  There was some evidence of an obsession with knives.  
	On 18th October 1996, the day before the killing, the applicant and Maynard were in a room at the hotel with Chris Jones, and the applicant was complaining of the fact that although he had shared a beer with another resident that resident would not now reciprocate.  The prosecution case was that the complaint was about Hayward, who had just been given £10 by his mother.  
	On 19th October 1996, during the early evening, the applicant prevailed upon Hayward to surrender his Sanyo portable music centre, and to write a note recording its “sale”.  The applicant boasted to Paul Fagan “we just done a kiddie.  I took it right off him.”  There was blood on the applicant’s hand, so Fagan did not shake hands, and at about 7.30 to 8 pm the applicant, with Maynard in attendance, sold the Sanyo to Ackord in a take-away for £10.  Ackord remembered the vendor having mid-blue jeans, but Ackord was clearly wrong as to the colour of the applicant’s hair.  
	According to Maynard the applicant not only relieved Hayward of his Sanyo, he also relieved him of his clothes, and then he wanted to fight, so Maynard persuaded them to go to the shelter on the sea-front for that purpose, and Maynard says that he went to try to keep the peace, and because he was afraid of the applicant.
	At about 8.30 pm Marcus and Peter Muckowski were walking on the sea-front near Duke’s Mound when a youth, acknowledged to be Maynard, behaved aggressively towards them.  Both brothers had the impression that Maynard was with two others, so it would seem that at 8.30 pm Hayward was still alive.
	According to Maynard he then left the applicant with Hayward and moved away to urinate.  When he returned he found the applicant stabbing Hayward.  He went close but did not intervene.  He then set off back to the hotel, but the applicant caught up with him.  Neither of them called for help, but someone did, because help came at about 9.15 pm, at which time the body of Hayward was still warm.  
	At or near the scene there were beer cans with fingerprints of the applicant and of Maynard, and there was also blood from the deceased and from the applicant.
	According to Maynard the applicant went with him to his room at the hotel and used Maynard’s bathroom.  Maynard assumed that the applicant was washing his clothes.  Maynard says that he then passed out, and next morning he found blood stained jeans on his bedroom floor, and a Swiss army knife in his bathroom sink.  He then left Brighton. 
	The Swiss army knife belonged to Hayward, and was accepted to have been the murder weapon.  It was defective in that it would not stay open, so anyone using it to stab would be likely to cut himself.  When found it had some blood on it, but not enough to indicate whose it was.  There was, however, some of the applicant’s blood in Maynard’s bathroom.  
	The jeans which were found in Maynard’s bedroom were quite heavily bloodstained, with the deceased’s blood.  The forensic scientist called by the prosecution, Mrs Johnson, concluded that the jeans were likely to have been worn by one of the attackers.
	On 20th October 1996, the day after the murder, the applicant telephoned the home of his former girlfriend, Tracey, and told her mother that he was going away for a long time as he had done something bad.  She asked him what it was, but he would not tell her.  
	That same day he presented himself at a hospital in Croydon, and asked to be accompanied by two security men in case he hurt someone.  He was restless, anxious and distressed, and was admitted but discharged himself next day.  
	On 21st October 1996 the applicant rang Tracey again, and told her he had done something wrong, and got himself into a bit of trouble. 
	On 22nd October 1996, at about 1 am, the applicant presented himself at Guy’s Hospital, saying that he needed help before he hurt someone.  He spoke of hearing voices, telling him to hurt himself and others.  He said that he had probably hurt someone already, because at one time he had seen blood on his hands.  He was not consistent in what he said, and stared at the doctor in a way that caused her to summon security.  He was admitted, and was arrested in the hospital that evening.
	When arrested the applicant said “it wasn’t me, it was him, he takes control of me and does things.  There was nothing I could do to stop him.”  The police officer to whom that was addressed did not understand the applicant to be referring to any other person.
	The applicant had the deceased’s Chicago Bulls hat, and other clothing of the deceased, but the applicant’s own clothes were not bloodstained.  He no longer had a leather jacket which he was wearing on the night of the murder, but which he claimed had subsequently been stolen in London.  
	When interviewed the applicant said that Maynard killed the deceased by stabbing him whilst he was some distance away throwing stones into the sea.  The applicant did not give evidence at his trial.
	Maynard was arrested in Manchester on 23rd October 1996.  The trainers and the top which he was wearing at the time of his arrest were stained with the blood of the deceased, and he had the deceased’s Ping baseball cap.  The blood on his Adidas top was on the sleeve but not on the cuffs, and there was a little blood on the back.  There was none on the front, so the indications were that he would not have been down near to the deceased in the position necessary to inflict the injuries which were inflicted with the knife if he was wearing that garment and nothing on top of it on the upper half of his body.  Dr West, the pathologist, envisaged a frenzied attack with flicks of blood splashing onto the knife-wielder’s upper front body as he knelt or crouched over the deceased.  
	Maynard’s left trainer was extensively stained with blood spots and smears on its upper surface, but not on the sole.  His right trainer had fewer spots on the upper surface, and again not on the sole.  Mrs Johnson and other experts considered that if the blood on the trainers came from the bleeding body of the deceased then Maynard must have been within two feet of the bleeding body, but had he kicked the body or stamped on it she would have expected to find contact staining on the trainers, and there was none.  Blood stains on the sole could have been washed off, but there was no evidence of that having been done, and it was possible that the one zig-zag mark found just behind the ear of the deceased could have been made by one of Maynard’s trainers.  
	After his arrest the applicant was interviewed in the presence of a solicitor and a psychiatrist.  At one stage he attacked police officer, and subsequently commented to a civilian gaoler that he was not violent “not like what happened the other night.”  He was asked what he meant and he said “with Maynard.  I’ve never seen anything as frightening, as violent as what he did to Justin.”
	During his time in custody prior to trial Maynard spoke about his own role to two fellow prisoners but what he said did not exculpate the applicant so we need not refer to those conversations now.

4.	Grounds of Appeal.
	Since the conclusion of the trial the blood stained jeans recovered from Maynard’s room at the Royal Promenade Hotel and the trainers which Maynard was wearing when arrested have been examined by two defence experts, both of whom were instructed prior to the trial.  Their view is that the trainers and the jeans were worn by the same person, and as it was admitted that Maynard wore the trainers at the material time it follows that if the experts are right he was also wearing the jeans.  We heard the evidence of the experts, Mr Palmer and Dr Jerreat, de bene esse together with further evidence from Mrs Johnson the forensic scientist for the Crown.  What we must now do is to decide whether to admit that fresh evidence, and if it is admitted what effect it has upon the safety of the conviction.  

5.	Admissibility of Fresh Evidence.
	(A)	Statutory Criteria.
	Section 23(1) of the Criminal Appeal Act 1968, as amended, enables us to receive any evidence which was not adduced in the proceedings from which the appeal lies if we “think it necessary or expedient in the interests of justice.”  
	Section 23(2) provides that -
“The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”

	(B)	Application to this Case.

	The evidence which Mr Rhodes, Q.C., for the applicant now wishes to adduce comes from two responsible experts and is plainly capable of belief.  It is evidence which would have been admissible at the trial, and it does appear to us that the evidence may afford a ground for allowing the appeal, but is there a reasonable explanation for the failure to adduce that evidence at the trial?  We do not accept that there is.  As we have pointed out, Mr Palmer and Dr. Jerreat were both instructed prior to the trial, and there is no reason to think that, if asked, they would not have said at trial what they said in evidence to us.  In fairness to Mr Rhodes it should be said that he did not represent the applicant at the trial but, as it is clear from paragraph 61 of the advice prepared by junior counsel for the purposes of this appeal, counsel did recognise during the trial the absence of the evidence which Mr Rhodes now seeks to introduce.  The omission could have been made good, but leading counsel then instructed considered that “it was too late to redress the matter”.  
	However, our conclusion in relation to section 23(2)(c) is not decisive.  It is only one of the matters to which we must have regard when deciding whether it is necessary or expedient in the interests of justice to receive the evidence, and that, as it seems to us, is something which can only be decided by considering what may be the effect of this evidence if it is received, bearing in mind what was said by the Lord Chief Justice in Steven Jones (1997) 1 Cr App R 86 at 93D -
“It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury.”

6.	The Effect of the Evidence.
	For present purposes it is unnecessary and undesirable for us to analyse the scientific evidence, or to express any view as to whether Mr Palmer and Dr Jerreat are right.  Suffice to say that they are not plainly wrong, and that if their evidence had been laid before the jury at the trial it might have been found to have been acceptable.  If so it would, as Mr Rhodes points out, have had a significant impact on Maynard’s account of the night of the murder.  In seeking to distance himself from the blood-stained jeans he would be demonstrated to be a liar, and that might well call into question other parts of his uncorroborated testimony - such as how the Swiss army knife got into his bathroom sink.  
	As Mr Townend, Q.C., for the prosecution, pointed out, the prosecution case against the applicant did not depend on the applicant having worn the blood-stained jeans - indeed the judge in his summing-up canvassed reasons why the applicant may not have been wearing them.  There were, Mr Townend submitted to us, other indications that the applicant was the stabber, and he listed some of them -
(1) the disappearance of the clothing the applicant was wearing on the night of the murder, especially his leather jacket which he said was stolen in London:
(2) his blood at the scene, and in Maynard’s bathroom, where undoubtedly the knife was found:
(3) the cuts on the applicant’s hands, visible after his arrest:
(4) his telephone conversations with his girl friend Tracey’s mother, and with Tracey herself:
(5) his behaviour at Croydon Hospital, and later at Guy’s Hospital:
(6) his behaviour on arrest:
(7) the direct evidence of Maynard, as given at the trial:
(8) the fact that there was less blood on Maynard’s top than would have been expected if he were the stabber.

	The points, as Mr Townend submits, are cumulative, but what weight should be attributed to the evidence of Maynard if he lied about the jeans?  

7.	Conclusion.
	In our judgment the fresh evidence if tendered at the proper time could well have had a significant effect.  There is no reasonable explanation for the failure to adduce it at the proper time, but nevertheless, because it would have been admissible, is capable of belief, and may afford a ground for allowing the appeal we consider that it is expedient in the interests of justice that leave to appeal should be granted and the evidence should be received now.  Having received the evidence we move on to consider its effect.  Put bluntly we find it impossible to say what the jury would have decided if the case had been presented to the jury as it should have been, namely with this extra information, and despite the meticulous way in which the matter was dealt with by the trial judge we are unable to conclude that the conviction of the appellant (as he now is) is safe.  Accordingly we allow the appeal.  Despite the time which has elapsed since the offence we consider that there should be a re-trial, and Mr Rhodes has not suggested otherwise.  A fresh indictment must be prepared on which the appellant must be arraigned within two months.  The re-trial will take place at Lewes or such other Crown Court as a Presiding Judge for the South Eastern Circuit may direct.  Legal aid will be granted for leading and junior counsel and solicitor, and subject to any application which may be made to us the appellant will remain in custody pending his re-trial.