b) order any witness who would have been compellable to attend at trial even if he was not called at the court below.

c) Receive such evidence as is mentioned in b) above.

2. Unless the Court of Appeal is satisfied that evidence,if received, would afford no grounds for allowing the appeal, the Court of Appeal shall receive it if it appears:-

a) That it would have been admissible below and is credible;

b) The Court of Appeal is satisfied that there is a reasonable explanation for it not having been adduced.

The question for the Court of Appeal is whether fresh evidence renders the conviction unsafe or unsatisfactory. Stafford v DPP (1974) 58 CAR 256 at 263 (HL) the court said it would not consider whether a jury might conceivably have come to a different verdict but whether the court itself now considers the conviction unsafe and unsatisfactory.

R v Byrne (1989) 88 CAR 33.
R v Callaghan (1989) 88 CAR 40.

"Evidence likely to be credible" means evidence well capable of belief.

R v Stafford (No.1) (1969) 53 CAR 1.

"Credible" means well capable of belief in the context of the circumstances as a whole including other evidence in the case directed to the issue under consideration.

R v Beresford (1972) 56 CAR 143.
Under Para 2 (b) above the court must be satisfied that the evidence could not with reasonable diligence have been obtained.
R v Beresford.

R v Lattimore and Others (1976) 62 CAR 53

s23 (1) is not restricted by s23 (2) therefore even if the requirements of s23 (2) are not met the court can receive new evidence if it is satisfied that it is in the interests of justice to do so.

Archbold Volume 1 7-214 s23 (2) is confined to matters that arise post conviction which explain why they were not adduced at trial.

R v Ditch (1969) 53 CAR 627.

R v Conway (1980) 70 CAR 4.

It is submitted that there are 5 separate areas of evidence which fall within this category.

A. Christina Wright.

During the murder investigation on the 17th June 991 Miss Wright, a resident of 41 Vardens Road, had given a lengthy and detailed and in some respects demonstrably accurate statement to the police . She was the last person to see Alison Shaughnessy alive.

That statement exculpated both Appellants stating, inter-alia, that Mrs Shaughnessy had returned to her home shortly after 6 p.m. on the evening upon which she died and had entered her house alone. By 6 p.m. on the 3rd June 1991 the Crown argued that both Appellants were at the Churchill Clinic where Michelle Taylor worked and could therefore not have committed the murder if Mrs Wright's evidence was, or might be, accurate.

As the Crown did not wish to call or read Mrs Wright's evidence it was disclosed to the Defence. By the time of trial Mrs Wright's health was such that her doctor said it would kill her to attend court. Counsel for Michelle Taylor sought to read the statement and by agreement with the Crown a statement as to Mrs Wright's state of mind and medical condition at the date of the murder was read to the jury at the same time.

That statement suggested that the witness was confused and "liked a drink". In the event, the jury must have dismissed Mrs Wright's evidence and can only have done so on the basis of the agreed medical evidence on her inability to attend court in person.

In view of the crucial importance of this witness's evidence the jury should have been given an opportunity to judge her reliability for themselves, if necessary by the taking of evidence from her at her bedside. The failure to provide the jury with any or any satisfactory material upon which to judge the reliability of this witness whose testimony, if accepted, exonerated both Appellants, rendered the verdict unsafe and unsatisfactory.

It now appears that Mrs Wright was fit enough to give an interview to reporters which was broadcast on BBC1 television on the day of the jury's verdict (24th July 1992). (Video film exhibit D2A). Counsel at trial were clearly misled as to her real state of health at the time the decision was taken to read her statement.

B. Fingerprint Evidence.

The finding of the Appellant's fingerprints on the internal door at 41 Vardens Road, contradicted her witness statement taken by the Police on the 24th July 1991. At trial Mr Milne stated that the fingerprints had been made within 48 to 72 hours of their discovery.

This suggestion was not made until after the trial had started. Mr Milne was not prepared to make a written statement to this effect and gave his explanation in the witness box. The effect of this evidence was devastating and yet was manifestly incorrect. The Home office's fingerprint expert manual states:

"It is however impossible to determine reliably the age of a fingerprint by observation of its reaction with a fingerprint detection process"

We have been unable to find a single example of an expert in this field purporting to date a fingerprint in this way. It is imperative that this misleading, inaccurate and damaging theory should be rejected.

One of the leading experts in this country, Harold Squires, considers that it is simply not possible to determine the age of a fingerprint. This is a further example of the way in which the evidence was tailored in this case to fit into the prosecution theory.

C. Pathology

Without any notice and after examination-in-chief, cross-examination and re-examination, Dr Crompton concluded, in answer to a question from the Judge, that the wounds pointed to them being inflicted by a female rather than a male. This statement struck at the very heart of the case.

Despite being recalled at a later stage of the trial, it is clear that irreparable damage had been done. He was shown a scientific report written by the eminent pathologists, Dr Hunt and Dr Cowling . He agreed that he was unable to sustain his opinion that the wounds were inflicted by a woman.

As a result of a close study of Dr Crompton's clinical notes and the post-mortem photographs, Dr Hunt has concluded that the attack was carried out by a male assailant. Further, the assailant was considerably taller than the victim. Both Appellants were, in fact, shorter than the victim.

Had the defence been able to call this evidence at trial, it would have significantly undermined Dr Crompton's testimony.

D. Timing

One of the most crucial pieces of evidence in the case concerned the time it would have taken to drive from Vardens Road to the Churchill Clinic in rush hour. Months after the murder, police officers travelled the journey by car in about 11 1/2 minutes.

However, it was not known at trial that extensive road works had restricted the normal flow of traffic on this route on the 3rd June 1991. This material seriously affects the Crown's theory that the Appellants had sufficient time to commit the crime and return to the Churchill Clinic where the unchallenged evidence confirmed they were seen at 6 p.m.

E. The Real Culprit.

The defence were aware at trial from material disclosed that 2 police officers were contacted by Mr Baldwin , a Social Worker, within 48 hours of the murder. He stated that a homeless man called Wylie had come to his office in Battersea and confessed to the murder of a young girl with a knife.

Mr Baldwin provided the police with a description of Wylie and an address where he could be arrested. However, the police failed to arrest him and were unable to provide the defence with any details of either Wylie or Baldwin's whereabouts.

Therefore, no admissible evidence was available to the defence save for the disclosed statements of a number of young women in the same locality of London who had been attacked by a man in curious circumstances around the time of the murder. 3 statements were read to the jury to illustrate this point.

Since the conviction Mr Baldwin was eventually traced and seen by Solicitors. He has made a statement as have two other new witnesses who had dealings with Wylie at the relevant time. Wylie clearly exists and a photograph of him is now available. The significance of this new evidence cannot be underestimated.

4. THE JUDGE'S SUMMING UP

Leave to Appeal was refused by the Single Judge in relation to grounds 5,6,7 and 8 of the Perfected Grounds of Appeal Against Conviction. It is the intention of this Appellant to apply for leave from the Full Court to argue the following grounds:

(a) The direction by the Trial Judge in relation to the evidence which was read at trial of both Mrs Christina Wright and Mr Michael Casey was inadequate and unsatisfactory. (Transcript P100C - 102E).

(b) The direction of the Trial Judge in relation to joint enterprise so far as this Appellant was concerned was inappropriate and confusing. (Transcript P19F-21C).

(c) The Trial Judge's direction in relation to the lies which had been or might have been told to police by the Appellant and the false alibi was inadequate and insufficient.

R v Lucas (1981) 73 CAR 159.
R v Rahmoun (1986) CAR 217.
R v Turnbull (1976) 63 CAR 139.
(Re False Alibis).
(Transcript P26C-G P61b).

(d) The Trial Judge's direction in relation to:

a) the dangers of identification (transcript P51b - 58f)
b) expert evidence in relation to fingerprint dating (Transcript P79c-81f)
c) presence at the scene
d) guilt by association with her sister, were inadequate and unsatisfactory.

On all the facts of the case, the conviction of the Appellant was unsafe and unsatisfactory. At the very least, this is a lurking doubt case.

ANN MALLALIEU,Q.C

IAN BOURNE
23rd April 1993

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