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CAIRNS, R v. [2000] EWCA Crim 21 (24th February, 2000)
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
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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.
© 2000 Crown Copyright
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