Case No: 2005/06196/C2 and 2005/06390/C2 
Neutral Citation Number: [2006] EWCA Crim 2914
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Friday, 10th November 2006
 
B E F O R E:

LORD JUSTICE TUCKEY 
MR JUSTICE HOLMAN 
MR JUSTICE HODGE 

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R E G I N A 

-v- 

JOHN JAMES MCAFEE

GRAHAM JAMES ELLIS 
 
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MR JAMES BURBIDGE QC appeared on behalf of the Appellant McAfee
MR DAVID CRIGMAN QC appeared on behalf of the Applicant Ellis
MR ROBERT JUCKES QC and MR MICHAEL DUCK appeared on behalf of the Crown
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J U D G M E N T 

1.	LORD JUSTICE TUCKEY:  On 3rd November 2005 in the Wolverhampton Crown Court before Dobbs J and a jury, John James McAfee, aged 24, and Graham James Ellis, aged 25, were convicted of murder and subsequently sentenced to life imprisonment with recommended minimum terms of 20 years.
2.	McAfee appeals against his conviction by leave of the single judge.  Ellis renews his application for leave to appeal against conviction following refusal by the same judge.  Points are taken about the judge's rulings admitting the defendants previous convictions, allowing a witness to refresh her memory and on the summing-up.
3.	At 6.24am on Thursday 8th April 2004 neighbours called the emergency services after discovering a fire at 17 Fereday Street in Tipton.  On attending the scene firefighters discovered the body of the occupant of the ground-floor flat, Benjamin Jones, aged 73, lying in the hallway.  Investigations revealed that he had been killed before a fire had been deliberately started at some time between 3.00 and 5.00am that morning.  He had suffered a broken nose, bruising to the face, head and body, and a total of 13 stab wounds, including a fatal wound to the main vessel of his heart.  The deceased himself had been burnt and traces of accelerant were found on his body and in other parts of the property.  A knife was found in the hallway and a cigarette lighter was recovered from under the body.  A second knife was discovered in a nearby drain.  The pathologist concluded that the deceased had been attacked firstly with a pole or a broom handle, and then once prone on the floor stabbed by both knives.  The knife found in the drain had caused the fatal wound.
4.	It was the prosecution's case that local drug addicts, the defendants, had attacked and killed the deceased after he had disturbed them burgling his house in the late afternoon or early evening of the previous day, 7th April.  Further that one or both had later returned and set fire to the deceased and his home in an attempt to destroy evidence.  Television sets sold by the defendants had come from the burglary.
5.	The defendants each denied any involvement in the killing, and said they had nothing to do with the fire.  They each ran a cut-throat defence.  McAfee alleged that on 7th April Ellis had given him a television to sell, and later admitted to him that it had come from the deceased's house and that he had been present when someone else had stabbed the deceased.  Ellis refused to say who it was.  He did not give Ellis a knife at any stage.  Ellis alleged that on the afternoon of the 7th McAfee had run over to him in a panic, thrust a blood-stained knife into his hand and confessed to killing the deceased.  He admitted that he had gone with McAfee to sell a television.  He was not present when the deceased was stabbed and had not told McAfee that he had seen someone else do it.
6.	At the start of the trial prosecuting counsel Mr Juckes QC and counsel for McAfee, Mr Burbidge QC, applied to adduce Ellis's previous convictions under section 101 of the Criminal Justice Act 2003.  They included arson in 2002, theft in 2004, assault in 1999, and theft and burglary in 1999/2000.  The conviction for arson arose out of Ellis's setting fire to his own flat as part of a suicide attempt.  No accelerants had been used.  It was argued that the previous conviction for assault showed a propensity for violence.  The conviction for arson showed a propensity to set fire to premises and was relevant to an important matter in issue, namely whether or not Ellis had set the fire because he was responsible for the murder.  Counsel for McAfee submitted that the 1999/2000 convictions were also admissible under section 101(1)(e) and 101(1)(f) to rebut the false impression given by Ellis, and his attack on McAfee's character in interview when he suggested that he had only started drugs after meeting McAfee.
7.	Counsel for Ellis argued that the single conviction for arson did not show propensity, and that in any event the facts of the conviction in 2002 and that of the fire started at the deceased's flat were so different that they could not amount to evidence of propensity.  Furthermore on the evidence there was no way that he could have been present at the time the fire must have been started.  The arson conviction therefore did not go to any issue between the parties.
8.	The judge ruled that the 1999/2000 convictions for theft and burglary were inadmissible, as it could not be shown that these offences were drug related.  The convictions for theft in 2004, arson in 2002 and assault in 1999 were admissible under section 101.  Counsel for Ellis renewed his application to exclude evidence of these convictions following the evidence of Nicola Smith, to which we will refer in a moment.
9.	In Ellis's grounds of appeal it is submitted that the judge erred in admitting Ellis's previous conviction for arson.  In McAfee's grounds of appeal it is submitted that the judge erred in refusing to admit Ellis's previous convictions for burglary and theft in 1999/2000.
10.	The evidence showed that the deceased was a lonely man who lived on his own and was reputed to be rich.  He had last been seen alive at about 4 o'clock on the afternoon of 7th April.
11.	Four young people were sitting together by a road near to the deceased's flat at about 10.00 to 10.30pm on the evening of the 7th, when they saw a man, whom they identified as McAfee (whom they knew) coming and going through a gap in the fence which gave access to the area behind the deceased's flat and was a well-known cut through used by local residents.  He was carrying bin liners and boxes, and made about three to five trips.  In his grounds of appeal McAfee says that the evidence of these four witnesses was not properly summed up because the judge did not remind the jury of specific weaknesses in their evidence.
12.	Another witness said that he had seen Ellis at about the same time that evening.  He had seen another man going through the gap in the fence and the other man had said to Ellis that he would see him later.  He had seen this man with Ellis before and believed they had a drug connection.
13.	There was evidence that McAfee had sold a colour television stolen from the deceased's flat and Ellis had sold the deceased's black and white television after the killing.
14.	But one of the principal witnesses for the prosecution was Ellis's ex-girlfriend, Nicola Smith.  She lived near to the deceased's flat and had been living with Ellis there for about two years.  He was the father of her two young sons.  After a time he started taking drugs and their relationship deteriorated.  They lived on benefits and he would shoplift to pay for drugs.  McAfee and other drug associates would come round.  She shared drugs and developed a crack habit herself.
15.	Nicola Smith's evidence was that on the evening of 7th April Ellis was in and out all night.  He seemed agitated and fidgety.  He washed his clothes and trainers before the fire.  It was late and dark.  She always did the washing and there was no other time when he had come in and washed his own clothes.  He had blood on his hands and said that he had cut his hand going over the gap in the fence.  Her evidence in chief was that he went back out late in the night to get some Rizlas from McAfee, and returned after about 20 to 30 minutes and seemed calmer.  The following morning they got up and saw police activity.  She needed to go to the post office.  Ellis wanted to go to McAfee's and so she and the boys went with him.  They met McAfee about 11.00am.  They had heard about the fire, but she said McAfee told Ellis that the man had been killed.
16.	Leave was granted to allow Nicola to refresh her memory from her witness statement as to precisely what McAfee had said.  The judge's ruling that she should be allowed to do this is McAfee's main ground of appeal.
17.	After refreshing her memory from the statement, the witness said that McAfee had said that the old man had been stabbed.  At this time no one knew that he had been attacked and stabbed to death apart from his killers.  
18.	The witness said that when the police came round making house-to-house enquiries Ellis had asked her to say that he had been in all night, which was not true.  He then told her that he had burgled the deceased's house and taken a television.  He had gone through the back window, and when he came back he saw the deceased on the floor and checked his pulse.  Before the police came Ellis wanted her to go with him to look for a knife which he said he had put down a drain.  He said that he had put his hand on the knife as he came out of the back window so he took it with him and put it down the drain.  They looked down the drain where he had put it.  She could not see anything, although he said he thought he had seen the handle.  The knife was later recovered by police from this drain.
19.	On 20th July Nicola had made a statement that Ellis had not gone out that night.  She said it was not true.  Before the police came Ellis told her that he and McAfee had been burgling the deceased's house after getting in through the back window.  They disturbed the man who had started to strangle him.  He could not breathe, and so he picked something up and stabbed him with it and he fell on the floor.  McAfee had stabbed him to make sure he was dead.  However Ellis told her different versions of what had happened.  A couple of weeks before he was arrested and after he told her about the stabbing, he burnt his trainers after he had been told that forensics were taking shoe prints.  Ellis said that he was burning them because of the footprints on the window.  He told her that someone had set fire to the flat but he did not say who.
20.	In cross-examination Nicola accepted that she had lied to the police because Ellis had begged her not to tell them.  When he brought a black and white television back to the flat on 7th April he was with his brother.  It was covered in soot.  He told her that he had got it from the old man's house.  She was unable to say where Ellis was in the middle of the night of 7th April.  She did not know.  However when cross-examined by Mr Crigman QC for Ellis, she said that she was a light sleeper, that the front door made a noise and that she was frequently up with the baby, and agreed that it was not possible that Ellis had gone out in the early hours of the morning.
21.	McAfee was seen by police during the course of their house-to-house enquiries and denied any knowledge of the deceased's killing.  He made a witness statement in May to much the same effect.  It was accepted on his behalf that both those statements contained lies.  However in August 2004 he attended the police station voluntarily and provided a lengthy witness statement, in which he gave an account of events which he later repeated in evidence at trial.  
22.	Ellis was arrested after giving police a false name.  He denied any involvement in the murder, but after being shown McAfee's statement he provided the account which he later repeated in evidence.
23.	Both defendants gave evidence.  We have summarised each of their cases, and it is not necessary for present purposes to go through the evidence which they gave in detail.
24.	But McAfee said he had met Ellis through drugs.  On the afternoon of 7th April Ellis had come round with his brother Nathan.  He had a black and white portable television with him and asked him to sell the television.  He believed that they went to a dealer who had bought it for £20.  Later Ellis told him that the television had come from the deceased's flat.  He said that he had been there and that he had seen someone else stab the man.  He knew the four young witnesses who gave evidence that he had been going back and forth through the gap.  They would have seen him around locally.  It was not him they had seen that evening.  He had not been with Ellis later that evening and Ellis had not come to his house asking for Rizlas.  He agreed that they had met the following morning, but he had told Ellis that the man had been stabbed.  He accepted he had lied to the police, but said he had done so because he was worried about Ellis's family and because he had sold a television.
25.	McAfee called witnesses who said that he was with them on the evening of the 7th, but it is conceded that they did not provide him with a cast-iron alibi for the whole of the evening.
26.	Ellis said that he did not kill the deceased and was not present when he was killed.  He believed that McAfee and another had killed the deceased because on the afternoon of 7th April he was by the bins at the back of the flats where he lived when McAfee came over with a knife.  He asked for help and told him about the man he had stabbed, and that he had killed him.  He had gone with McAfee through the hole in the fence to the back door of the deceased's house.  He had not been there before.  He saw a television under the window at the back.  McAfee opened the window and told him to go and see if the deceased was all right.  He went in through the window.  It was stupid of him to do so.  He went into the hall and saw the deceased lying by the door.  He thought he was dead.  He ran out of the house.  He was in a state.  He said he wanted nothing to do with McAfee, but McAfee said that he was now involved.  They walked down the road and McAfee had the television and said he was going to flog it.  He said he had jumped on the man and that they had had a scuffle and that he had stabbed the man.  They took the television ultimately to the dealer who bought it, when Ellis said he had had enough and left McAfee.  He had gone out again later and back to the flat because he had remembered that he had touched the television by the sink and he was scared that it would have his prints on it.  He leaned in and got the television out, and that is how he came to be in possession of the black and white television.  He said that he had nothing to do with setting fire to the deceased's flat on the early morning of the 8th.  He was in bed with Nicola between 3.00 and 5.00am and she would have seen or heard him leave if he had done so. 
27.	So we turn to the grounds of appeal which we have already identified.  We deal first with the judge's decision to allow Nicola Smith to refresh her memory.  Section 139 of the Criminal Justice Act 2003 changed the law about this.  Subsection (1) of that section says:
"A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if - 
 (a) he states in his oral evidence that the document records his recollection of the matter at that earlier time, and 
 (b) his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence."
The requirement of section 139(1)(a) was obviously met in this case; the focus has been upon section 139(1)(b).
28.	The statement to which the witness was allowed to refer was made on 11th September 2004, 4½ months after the murder.  We are told it had been written by a police officer following a series of recorded interviews over a number of days, during which the witness had said that McAfee had said the old man "had been stabbed".  The statement was signed by the witness under the usual warnings and declarations.  However she had made the earlier statement on 20th July to which we have referred for the purpose of exculpating Ellis, which she later accepted was untrue.  Earlier during the police house-to-house enquiries she had made a statement in which she had not said anything about meeting McAfee on the morning of the 8th.
29.	At trial when the witness said the old man had been killed, she added that she could not recall the exact words McAfee had used.  She could not remember if he had said how the man had been killed.  She was then reminded of the police interviews in September 2004 without being shown anything, and asked whether her recollection would have been clearer at that time, the time of the trial being 13 months later.  She said it would have been.
30.	The prosecution therefore made their application under section 139 which was opposed by Mr Burbidge.  He made similar submissions to the judge to those which he has made to us.  It could not be shown that the witness's recollection was likely to have been significantly better in September 2004 than it was in October 2005.  On the day she gave evidence at trial someone had read the statement to her.  This was not her original statement.  She was a drug taker and had told many lies.  There was no corroboration for her assertion that her recollection had been better the previous year.  There was ample scope for mistake in the precise words which had been used because she had changed her story and Ellis had told her many different stories.
31.	The judge rejected Mr Burbidge's submission and allowed the witness to refresh her memory from the September 2004 statement.  After referring to her statement, the witness said:
"My memory when I made the statement was better because I knew what they were asking me and what I was telling them.  Things now seem muddled with times and dates."
32.	Unfortunately we do not have a full transcript of what transpired, but there is no dispute about the account which we have just given.  Mr Burbidge submits that the judge should not have allowed the prosecution's application and that this court should say that it was wrong.  Even if the statutory conditions were fulfilled, he submits, the judge should have refused the application in her discretion.
33.	We disagree.  The statutory conditions were met.  It was for the judge to decide, having heard what the witness had to say, whether it was likely that her memory would have been significantly better or not.  The statute contains no requirement of contemporaneity.  This is just the sort of decision which a trial judge is in the best position to make, and just the sort of decision which this court is in no position to second-guess.  Judges' decisions should be accepted unless they are obviously wrong, unreasonable or perverse.  None of these things can be said of the judge's decision in this case.  A judge must have a residual discretion to refuse a section 139 application even if the statutory conditions are met.  But there were no good reasons for doing so in this case.  The prosecution were entitled to present their best case to the jury.  That is the object of many of the provisions in the 2003 Act.  The defence of course were free to make, and in this case did make, forensic capital out of how this evidence emerged and of course the other inconsistencies in this witness's evidence.
34.	In her summing-up the judge reminded the jury that witnesses had refreshed their memory from earlier statements, and added:
"You decide whether the witness, having refreshed his or her memory, is giving you truthful and accurate evidence, of course bearing in mind the time when the statement was originally made and for that, of course, you have got the helpful chronology in front of you.
Previous inconsistent statements.  A number of witnesses, and the most notable being Nicola Smith, had parts of their previous statements put to them.  And I need to give you a direction about how you should approach it.
Where the witness has admitted, or you are satisfied that he or she has made a previous statement which was inconsistent with the evidence given by that witness, you may take into account any inconsistency and the witness's explanation for that inconsistency when considering that witness's reliability.  It is for you to judge the extent and importance of the inconsistency.
If you conclude that he or she has been inconsistent on an important matter, then you should treat both accounts with care.  If, however, you are sure that one of the accounts is true in whole or in part, then it is evidence which you may consider when deciding on your verdicts."
It seems to us that in these directions the judge put the matter fairly to the jury.
35.	Next we deal with the bad character evidence.  McAfee complains, as we have said, that he should have been allowed to rely on Ellis's convictions for offences of theft and burglary in 1999 and 2000.
36.	In his renewed application for leave to appeal Ellis complains that neither the prosecution nor McAfee should have been allowed to rely on his previous conviction for arson.  We do not have a transcript of the judge's first ruling on these issues.
37.	Mr Burbidge puts his point on McAfee's behalf as follows:
"Without the co accused's full convictions being before the jury, the case was essentially left to the jury that Ellis' dishonesty only commenced with his meeting and friendship with McAfee.  This would then appear to endorse the assertions by Ellis in his interviews and latterly in evidence that it was thus McAfee who introduced him to drugs and acquisitive offending to pay for such drugs.  When the reality was Ellis had previous convictions for such crimes and thus did not always work with McAfee in offending or indeed need him to be led into offending."
38.	The judge, as we have said, refused to allow evidence of the earlier convictions to be admitted because they could not be shown to be drug related, that is to say acquisitive crime committed for the purpose of funding a drug habit.  We are told that in her ruling the judge had in mind the age of the offences and Ellis's denial that these earlier offences were drug related.  Ellis had however admitted in his evidence that before he came to Tipton in 2002, and therefore before he met McAfee, he had taken class B drugs.  McAfee's more recent convictions for theft and possession of cannabis were admitted by the judge, who clearly tried to strike a fair balance between the two defendants.  In these circumstances we do not think her decision not to admit Ellis's earlier convictions can be faulted.
39.	On behalf of Ellis Mr Crigman complains about the admission of his conviction for arson.  We have already summarised the arguments advanced before the judge.  We do have a transcript of her second ruling after Nicola Smith had given evidence.  The submission was that her evidence now made it clear that Ellis did not leave her flat at the time when the fire must have been started, and so his previous arson conviction did not go to any issue between the parties.  The judge disagreed.  She said:
"... as between the co-defendants this evidence does still have substantial probative value in relation to an important issue between the co-defendants.  The very fact that the witness has given that evidence, it will be a matter for the jury to assess the reliability of that witness.  Her reliability is challenged by those representing Mr McAfee, both as to the timing as to when he went to bed but also as to the matters that Mr Burbidge has advanced in relation to the Rizlas where she has given differing accounts which also will affect her credibility as to whether she was able to remember that particular night and whether Mr Ellis was at home after approximately 11.30.
... it will be for the jury, looking at all the evidence, to decide on the reliability or otherwise of Nicola Smith's evidence in relation to that alibi."
40.	The judge then correctly pointed out that if the evidence was admissible under the section 101(1)(e) gateway, there was no discretion to exclude it under section 101(3).  The prosecution had argued that the conviction was relevant to propensity under section 101(1)(d).  However the judge said she did not need to rule on this because the evidence was admissible under subsection (1)(e).
41.	Mr Crigman submits that before subsection (1)(e) applied there had to be an evidential basis upon which Ellis could have been convicted of arson, and there was none.  McAfee had not alleged that Ellis started the fire.  His conviction for arson did not have substantial probative value on the issue of who committed the murder, which was the real issue between the defendants.  The jury might have been misled into concluding a previous conviction for arson equals evidence of guilt of this arson, equals evidence of guilt of murder.
42.	Well presented though they were, we think these arguments are too subtle.  It is unrealistic to isolate the burning of the house from the murder.  Whoever committed the murder was likely to have started the fire in an attempt to destroy evidence of the murder and who had committed it.  Ellis was, as Mr Juckes QC put it, forensically aware.  He had hidden the murder weapon in a drain, washed his clothes and burnt his shoes after the murder.  It was McAfee's case that Ellis was the murderer.  The fact that he had a previous conviction for arson showed that he had a propensity to start fires.  That was relevant to McAfee's cut-throat defence.  Nicola Smith's evidence was not conclusive, for the reasons given by the judge.
43.	So for those reasons we reject Ellis's renewed application for leave to appeal against conviction.
44.	We turn to McAfee's complaint about the judge's summing-up of the evidence of the four young people who said they had seen McAfee at about 10.00pm on the evening of the 7th.  The judge gave the jury a full Turnbull direction, about which no complaint is or can be made.  Not long after that direction she reminded the jury in some detail of the evidence which these four witnesses had given, both in chief and in cross-examination.  She concluded this summary by saying:
"And so to summarise, members of the jury, bear in mind the warning I gave you about identification and bear in mind in particular the length of time the person was under observation, the angle, the distance, that the lighting wasn't good by the gap, and we know it wasn't lit, in fact, by the gap, it was night time, and you will also bear in mind any discrepancies between what the witnesses have said. 
45.	Mr Burbidge submits that the judge was obliged to draw the jury's attention to specific weaknesses in this evidence.  We do not think there was any need for the judge to have done more than she actually did in this case.  This was not a fleeting glance case, but one of recognition where each of the witnesses said they knew McAfee well.  The inconsistencies, such as they were, were self-evident from the judge's summary of the witnesses' evidence.  That summary had been preceded and was followed by appropriate warnings, including a final reminder to bear in mind any discrepancies between what the witnesses had said.  So we reject this ground of appeal. 
46.	Mr Burbidge finally submits that the cumulative effect of his grounds has to be considered against the fact that the prosecution case against McAfee was weak and the prejudicial effect which Ellis's defence had on his case.  We think the case against McAfee was stronger than Mr Burbidge suggested.  Cut-throat defences of course are liable to be self-destructive, but that is not a ground of appeal.
47.	We conclude that McAfee's conviction in this case was safe, and so his appeal against conviction must be dismissed. 
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