No. 2005/04573/D1
Neutral Citation Number: [2006] EWCA Crim 2512
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  7  September  2006

B e f o r e:

LORD  JUSTICE  SCOTT  BAKER

MR  JUSTICE  JACK

and

MR  JUSTICE  MITTING

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R E G I N A

- v -

MARTIN  TIMOTHY  O'HARE
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Computer Aided Transcription by
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MR A J BARNES appeared on behalf of THE APPLICANT

MR I WHITEHURST appeared on behalf of THE CROWN
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J U D G M E N T

LORD JUSTICE SCOTT BAKER:  

1.  On 19 November 2004, in the Crown Court at Liverpool, the applicant, Martin O'Hare, was convicted by a majority of 10:2 of a single offence of wounding with intent contrary to section 18 of the Offences against the Person Act 1861.  He was sentenced by Mr Recorder Halliwell to four years' imprisonment.  His application for leave to appeal against conviction was referred to the full court by the single judge, as was his application for an extension of time.

2.  On 3 May 2006, the applications came before another division of this court presided over by Hallett LJ.  She adjourned the applications to a date to be fixed and gave certain directions.

3.  The sole ground of appeal is that it is claimed that another man, David Bellamy, the nephew of the applicant, has confessed that he committed the offence and in consequence it is alleged that the applicant's conviction is unsafe.  

4.  The facts of the case can be described as follows.  There was a background to the offence.  On Saturday 28 February 2004, at the Tenterhook, a public house in Kirby, Mersyside, there was an incident between the complainant, Stephen Wafer, and Teddy O'Hare, a brother of the applicant.  Teddy and Wafer had an argument over Wafer's conduct in the presence of Teddy's 17 year old granddaughter, after which Wafer struck Teddy, who lost two teeth as a result.  Although (with Wafer's cousin, John Madden, acting as peacemaker) Wafer and Teddy sorted the matter out, Teddy was left with a sense of grievance. 
5.  By the following Thursday, 4 March, Teddy's brother Tommy was on notice of the incident and he informed his brother Martin (the applicant), who was the youngest and the biggest O'Hare brother, and therefore, according to Tommy O'Hare, the brother most able to sort matters out.  The applicant was indignant at Wafer and John Madden and he wanted things sorted out. 

6.  The following evening, Friday 5 March, the applicant went to the Tenterhook for the purpose of seeing the two men whom he believed to have assaulted Teddy, but to no avail.  On the following afternoon, Saturday 6 March, Wafer and Madden were in the Tenterhook where, at about 4.30pm, the applicant came in with Paul Irwin.  At the applicant's invitation Wafer and Madden stepped outside, followed by Irwin.  On the prosecution's case the applicant and Irwin pulled out knives and after a chase over about half a mile Wafer was hit, kicked and stabbed by at least one attacker.  It was not disputed that Wafer was wounded and that the wounding was unlawful.  The prosecution case was that the applicant was the perpetrator jointly with another.  The issue for the jury was whether or not the applicant took part in the wounding and with the necessary intent.

7.  Stephen Wafer said in evidence that after the first incident he and Teddy quickly made it up and bought each other drinks.  In the afternoon of the next Saturday he was in the Tenterhook with John Madden when they were invited to come outside by the applicant, who had Irwin with him.  When they were all outside the applicant accused him of having hit his brother Teddy, and Irwin produced a knife and tried to stab John Madden.  When the applicant also produced what he took to be a knife, he ran off.  As he ran he rang the police on his mobile telephone and said that he was being chased by two men in black, one carrying a knife.  The two men caught up with him at an open space and they both punched, kicked and stabbed him.  Later in hospital he described the taller attacker as skinny and shaven-headed, but in cross-examination he accepted that that was an inaccurate description but said that he was under stress at the time that he had given it.

8.  On 26 March 2004 Wafer identified the applicant by video procedure as the man who had invited him outside and as one of his attackers.

9.  Madden's evidence was that outside the public house both the applicant and Irwin produced knives and when Irwin lunged at him with his he escaped back into the pub.  There he rang first the police and second his father, Bernard Madden, who promptly came to the pub.  He and Bernard Madden went together round to Teddy's and thereafter went to look for Wafer.  They found him bloodied and barely conscious.  

10.  Bernard Madden's evidence was that he was worried about Wafer, so he and John Madden went round to Teddy's.  While he was there Teddy made two telephone calls, one apparently to the applicant, after which Teddy said to him, "They've got him".  Thereafter, he (Bernard Madden) and John went to look for Wafer and found him.

11.  The manager of the Tenterhook, Ian Oliver, and his wife, Susan Oliver, said that Wafer and Teddy had made up soon after the first incident.  They said that the applicant was one of a group of about half a dozen men who came to the pub on the following Friday.  Mrs Oliver said that the men were looking for Wafer and Madden.  Mr Oliver said that he recognised the applicant as one of the men who the following day (Saturday the 6th) chased Wafer as he ran from the pub.

12.  The applicant gave evidence at his trial.  He said that he went to the Tenterhook on Friday 5 March in order to see and in a way sort out the two men whom he believed to have assaulted Teddy, but he went with only one companion, Francis Marr, not six as was the Crown's case.  He wanted to bring Wafer and Madden down to size.  When he and Irwin went into the pub the following day, the 6th, Tommy O'Hare pointed out Wafer and Madden.  Once outside the pub with them he raised the question of Teddy's age (57) with Wafer, who threw a punch.  There ensued a scrimmage, rather than a fight, after which Wafer ran off; so did Madden.  The applicant then walked over to the shops, where he was picked up by Derreen Daley, his long-term partner, and they went home to Prescot.

13.  Paul Irwin said in evidence that no one threw a punch.  Wafer ran at the applicant and there was a scuffle, after which the applicant stepped back and Wafer and Madden ran off.  He (Irwin) went into the pub and sat in the corner where Tommy O'Hare had been.  Later the Maddens arrived at the pub with bats.

14.  Teddy O'Hare said in his evidence that Madden was the peacemaker after the first incident, but he and Wafer did not then buy each other drinks.  He agreed that Bernard and John Madden came round on the next Saturday afternoon, but denied ringing the applicant in their presence.  He only pretended to make a call because he wanted them to leave.

15.  Tommy O'Hare gave evidence, in addition to his evidence of notifying the applicant of the first incident, to the effect that about a quarter of an hour after the incident, outside the pub where there was a scuffle, the Maddens arrived at the pub with bats.

16.  Derreen Daley's evidence was that she picked up the applicant as he had said.

17.  We turn next to the evidence of confession by Bellamy that is sought to be admitted as fresh evidence.  This can be divided into two.  First, during a prison visit by Paul Bibby, Keith Taylor and David Bellamy to the applicant in prison, Bellamy confessed that he was guilty of wounding Wafer.  That was said to have occurred on 1 February 2005.  Second, at a family meeting on 6 February 2005, a number of members of the applicant's family, including Paul Bibby and Keith Taylor, heard the applicant again confess to the wounding.

18.  Neither the applicant nor Bellamy is present at court today.  On 27 June 2006, Hallett LJ gave directions on paper that the applications, with appeal to follow if the applications were successful, were to be listed with a two-day time estimate.  The applicant was to be produced if he wished to be present.  All witnesses the parties sought to call were to be present.  Any application for a witness order was to be supported with information indicating why one was necessary.  The applicant has not been present at court today.  He has waived his right.  We have seen the relevant documents.  The prison where he is currently held say that it is too late to make arrangements to bring him here tomorrow should the court require that.  The applicant's non-attendance is inconsistent with his counsel's wish to call him to give evidence about the alleged confession in the prison on 1 February 2005.  We were today handed a statement of the applicant made on 14 July 2005.  The court had not seen it before; nor had prosecuting counsel.  Nor has any application been made to adduce fresh evidence from the applicant.  The statement is brief; it says as follows:

		"On Tuesday 1 February at 17.45 I was visited in Walton Prison by my nephews Paul Bibby and David Bellamy, and my brother-in-law Keith Taylor.

		I found the visit really upsetting as I was seeing close family members for the first time since I had been put in prison.  So far I had only seen my partner and my daughter.

		Paul and Keith seemed really upset at seeing me inside knowing that I had not committed any crime.

		My other nephew David seemed really on edge.  He had his head down and wouldn't look me in the eye.  

		I said to David that it was out of order what they had done to me and that he was going to have to come forward.  He had previously told me to keep my head down because the police had nothing on me.  David first said, 'I'm going to see a solicitor to get advice', and then said, 'I'm going to hand myself in'.

		Paul and Keith just sat there when they heard this.  They seemed to be really shocked.  I had been really upset since the start.

		At the end of the visit I said to David that he had to get it sorted and hand himself in."

Mr Whitehurst for the prosecution, who saw this statement for the first time this morning, said that if the court was minded to proceed to hear evidence, there was a number of further enquiries that he would wish to make and questions that he would wish to ask in cross-examination.  Not least was he interested in the reference that the applicant had previously been told to keep his head down because the police had nothing on him.

19.  There appears to have been some confusion.  It may be that the applicant waived his right to attend under a misapprehension, not appreciating that the appeal and any oral evidence would follow a successful application for an extension of time and for leave to appeal.  For present purposes we have proceeded on the basis that it is not the applicant's fault that the necessary application and service has not taken place with regard to his proposed evidence.  Had we granted permission to appeal, we should have adjourned the full appeal for him to be present and any necessary procedural steps to be taken.  He has, however, no right to be present on a leave application and, as we have observed, he has in any event elected not to come to court. 

20.  Bellamy made it clear to the applicant's solicitors that he did not wish to make a statement about the case.  On 1 August 2006 he responded to a letter from the applicant's solicitors of 21 July.  He said that he had spoken to his solicitor; he had no information to give and no statement to make regarding the solicitor's client Mr O'Hare.  Bellamy has been approached by a police officer independent of this case and has declined to be interviewed about it.  However, he commented in a telephone call made to him by Detective Sergeant Ford that he was "being stitched up".  That was on 7 June 2006.

21.  Those advising the applicant applied at a very late stage, namely earlier this week, for a witness order requiring Bellamy to attend.  A copy of that order was left at his address yesterday.  It is said that he is abroad on holiday.  No reason has been given why a witness order application was not served earlier.  The applicant's solicitors have his address and have been aware of where he could be contacted at least since the beginning of August 2006.  No application has been made for an adjournment so that Bellamy could attend.  There is nothing to indicate that had he come to court he would have said anything that could have assisted the applicant.  Indeed, the reverse appears to be the case.  

22.  Eleven witnesses have, however, attended at court today with a view to giving evidence -- some under compulsion, some voluntarily.  Apart from Richard Draper, the case worker with the applicant's solicitors, who deals with the timetable and procedure of taking witness statements, all the witnesses speak of the alleged confessions of Bellamy on the 1st and 6th February 2006, and they do so in very similar terms.  The applicant's proposed appeal depends entirely on the admission of the evidence of these witnesses and the applicant himself that Bellamy confessed to the crime in February 2005.  

23.  The admission of fresh evidence is covered by section 23 of the Criminal Appeal Act 1968.  Section 23(1) so far as relevant provides:

		"For the purposes of an appeal .... the Court of Appeal may, if they think it necessary or expedient in the interests of justice --

			....

			(c)	receive any evidence which was not adduced in the proceedings from which the appeal lies."

Subsection (2) requires the court, in considering whether to receive any evidence, to have regard in particular to four matters: (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.

24.  This application has focused in particular on (a), whether the evidence appears to the court to be capable of belief, and to a lesser extent (c), whether the evidence would have been admissible.  We observe that, although the court is required to take into consideration the four matters we have outlined, there is an over-riding power to admit fresh evidence if the court thinks it necessary or expedient in the interests of justice.  If we do not think that the evidence is capable of belief, that it seems to us is effectively the end of the matter in this case because the safety of the conviction is not therefore impugned.  

25.  However, apart from subsection (2)(a), there is a further hurdle for the applicant to cross, namely whether the evidence would have been admissible (section 23(2)(c)).  It is common ground that the evidence of the witnesses is hearsay and not admissible at common law: see R v Myers [1965] AC 1001 and R v Blastland [1986] AC 41.  There is strong authority for the proposition that the court will never receive evidence that is inadmissible in law: see R v Lattimore (per Scarman LJ) 62 Cr App R 53, 56, and R v Wallace and Short (per Roskill LJ) 67 Cr App R 291, 294.

26.  But section 114 of the Criminal Justice Act 2003 provides a new code for the admission of hearsay.  It provides:

		"Admissibility of Hearsay Evidence

		(1)	In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if --

			(a)	any provision of this Chapter or any other statutory provision makes it admissible,

			(b)	any rule of law preserved by section 118 makes it admissible,

			(c)	all parties to the proceedings agree to it being admissible, or

			(d)	the court is satisfied that it is in the interests of justice for it to be admissible."

In making an assessment under subsection (1)(d) the court is required, amongst others, to have regard to various specified factors which it is not necessary for present purposes to outline.

27.  Section 114(1)(a), which refers to "any provision of this Chapter or any other statutory provision", directs the reader in the present case to section 116, which covers cases where a witness is unavailable.  But it is accepted that the circumstances of Bellamy's absence at court today do not bring into play any of the provisions of section 116.  The only possible avenue, therefore, open to the applicant is section 114(1)(d), the sweeping-up interests of justice provision. 

28.  This case was tried before section 114 came into force.  We have been referred to R v Bradley [2005] 1 Cr App R 397 and also R v H [2005] EWCA Crim 2063, Times 2 August 2005, where it was held that in the event of a retrial the new provisions would apply.  It was pointed out by Longmore LJ in R v Hussain [2005] EWCA Crim 31 that, where between conviction and appeal there had been significant changes in the common law or standards of fairness, the court is required to apply modern legal rules and procedural criteria, even though they could not have been applied at the time: see paragraph 24.  

29.  Mr Whitehurst for the respondent very fairly takes no point on the evidence not having been admissible under the law on hearsay as it was at the time of the trial.  We have in mind that the overriding consideration is the interests of justice.  Had we thought that the fresh evidence in this case was or might be credible, we would not have regarded section 23(2)(c) as fatal to its admission.  However, in the event that matter does not strictly arise because of the conclusion that we have reached with regard to section 23(2)(a), to which we now turn.

30.  We start with the observation that the maker of the statement, David Bellamy, is not at court.  What he said is not admissible by virtue of the code carefully provided by Parliament in section 116.  We think it important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.  What is sought to be admitted is secondhand evidence of what Bellamy said.  The evidence of all these witnesses does not appear to us to be capable of belief for the following reasons.  This is not a case where the court has felt it necessary for the witnesses to be called and cross-examined de bene esse before a decision could be made.  In our view, looking at the case as a whole and the proposed evidence of the witnesses against that context, the facts speak for themselves.  In reaching our conclusion that the evidence is not capable of belief we have the following matters in mind:

	(1) There is nothing from David Bellamy himself to indicate that he confessed to the crime.  Indeed, the only observation attributable to him is that he was being set up.

	(2) The alleged confession is witnessed only by family members or the wider family of the applicant.  Further, not everyone was prepared to co-operate.  The chronology of preparation of statements is in our judgment revealing.  The very first statement that is taken is from the applicant's partner, Derreen Daley; the second from his daughter.  In her second statement (the first statement has not been provided to the court) she makes no reference to any prior knowledge of the confession in the prison -- a matter which, if it had occurred, we would have thought she would have been well aware of from an early stage.  

	(3) The alleged confession was made at a meeting which was set up for the purpose of discussing ways to get the applicant out of prison.

	(4) There was clear evidence implicating the applicant.  He was picked out on a video identification.  By his own admission, the applicant went to the public house in question with Tommy O'Hare who identified the victim, Wafer, to the applicant, who then asked Wafer and Madden to step outside, which they did.  Whilst it is disputed what happened outside the public house, it was common ground that there was an altercation in which both the applicant and the victim were involved.  The background up to this point shows not only that the applicant had a motive for violence, but he was in fact involved in violence.  

	The victim was then chased -- he says by two men.  His identification of the man who subsequently attacked him is that it was the person who had had the altercation with him outside the public house and chased him.  This is not, therefore, one of those worrying kinds of identification case.  The identification of the applicant was that he was the same person who had been involved in the earlier part of the incident.  In his 999 call Wafer said he was being chased by two men in black and that one was carrying a knife.  This is inconsistent with the stabbing being by Bellamy following a chance meeting. 

	If Bellamy's alleged confession was made and is true, it means that he, a nephew of the applicant, was in the area at the time and just happened to come across the victim as he was trying to get away from the applicant.  Bellamy was in the company of a person unnamed, and they both proceeded to punch, kick and stab the victim -- all because the victim had his hands in his pockets.  When he removed them, Bellamy and his friend launched an assault because they were unsure what Wafer was going to do next, there previously having been some trouble between Bellamy and Wafer.  This is not a case where, therefore, Bellamy was completely unknown to Wafer.  This points to the fact that if Bellamy's evidence is right, there is little, if any, room for error on the part of the victim.  This is a case where he would deliberately have said that someone other than the attacker found guilty of attacking him had attacked him. 

31.  In our judgment the fresh evidence has all the hallmarks of a concocted and contrived account designed to get the applicant out of prison -- the very purpose for which the meeting on 6 January had been set up.

32.  That is not entirely the end of the matter because our attention has also been drawn to a letter written by the applicant to the judge between conviction and sentence in which he asked the judge to consider his position.  In this letter there appear the following two passages (amongst others):

		"I would like to tell you that I found myself in a situation that was beyond my control.  It was not my intention to cause harm or injury to anyone and I bitterly regret that a man was injured during this incident. ....  I know in my heart that I will never put myself in a position where I would be foolish enough to be a cause of trouble.  I have learned a hard lesson...."

It is true that this letter does not go so far as to admit specifically guilt of the offence and it is possible to construe it as relating only to the earlier part of the incident in which the applicant admits being involved.  But, that said, it certainly is of no assistance to his case.

33.  The bottom line in our judgment is that the confession that is alleged to have been made has not been substantiated by the confessor.  If anything, the reverse is the position because he says that he was being set up.  We do not think, having considered on paper the evidence of these numerous family members in relation to the circumstances of the rest of the case, that the evidence is capable of belief.  In these circumstances, although we would be prepared and do grant an extension of time, we refuse the application for leave to appeal.

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