Case No: 200900932 B1
Neutral Citation Number: [2010] EWCA Crim 224
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/02/2010
Before :

LORD JUSTICE HOOPER
THE HONOURABLE MR. JUSTICE OPENSHAW
and
THE RECORDER OF CARDIFF – HHJ NICHOLAS COOKE QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between :

	The Crown	Respondent	
	- and -		
	DANIEL MOORE	Appellant	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

 Mr. P. Clark for the Respondent
Mr. B. Gilbert for the Appellant

Hearing dates : 4th February 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Hon. Mr. Justice OPENSHAW :

1.	On 28th November 2008 at the Crown Court at Chelmsford after trial before His Hon. Judge Goldstraub QC and a jury, the appellant Daniel Moore and his co-defendant David Townsend were convicted of causing grievous bodily harm to Kelvin Ward with intent, contrary to section 18 of the Offences against the Person Act 1861; following their conviction on count 1, the jury was discharged from giving a verdict upon the alternative charge of unlawfully inflicting grievous bodily harm. On 30th January 2009, the appellant was sentenced to 4 years detention in a young offender institution; a direction was given under section 240 Criminal Justice Act 2003 that the time which he had spent on remand should count towards sentence; there is no appeal against sentence.
2.	The appellant now appeals against conviction by leave of the single judge, on the grounds that there is fresh evidence from an eye-witness Kayleigh Knightsbridge (now Johnson), whose account is said to exonerate the appellant. In order to consider whether this evidence meets the requirements of section 23 of the Criminal Appeal Act, we heard her evidence de bene esse. Before reviewing the evidence which she gave, we must set out the background.
3.	Kelvin Ward, the complainant, was 19 years old at the time of the assault.  He had serious learning difficulties. In February 2007, he had been cautioned for a sexual offence committed against a 10 year old boy: an incident which had plainly achieved some notoriety in the area.  The appellant and his co-defendant knew the complainant, they knew also of his learning difficulty and of the fact that he had been cautioned for this offence on the boy. 
4.	The prosecution case was that in the early evening of 29th December 2007, the appellant and co-defendant lured Ward into the Admirals Park at Chelmsford for the purposes of beating him up and that, acting together, they did so. Telephone contact that day between the appellant and Ward was proved by the itemised billings on their mobile phones. Both the appellant and co-defendant accepted being present at the scene of the attack but each claimed that the other was entirely responsible for the violence used upon Ward.
5.	Kelvin Ward gave evidence in chief by pre-recorded video. He said that he had met the appellant and the co-defendant in the park. He said that he had gone with a 13 year friend of his, a boy whom we shall identify only as M. He said that when he met them, he greeted them; the appellant said something to him to the effect “You’ve done something”; they pushed him to the ground; the appellant then “booted” him whilst he was on the floor. He said they both kicked him.  He became unconscious and did not remember anything else until he was on his way to the hospital. He naively said that he thought that they were his friends. He remembered the appellant had told him not to ‘grass’.  In the attack Ward received a fractured jaw and bruising to his face; this was confirmed by the medical evidence. 
6.	In cross-examination, he gave evidence through an intermediary; no doubt as a result of his learning difficulties, he became confused and gave many contradictory answers; the impression gained by those present at the trial was that he was not an altogether satisfactory witness. 
7.	The boy M however gave evidence which was very clear. He said that he had been walking with Ward when he (Ward) had answered a telephone call from the appellant.  The appellant had asked Ward to come and meet them in the park.  M told Ward not to go, obviously suspecting that something was not quite right, but Ward said it would be alright and he agreed to go.  They walked down to the park.  M saw the appellant and the co-defendant. The appellant called Ward over.  M stayed at the gate but he could clearly see what was going on a few yards away from him. The two men were shouting at Ward, calling him names.  They both walked towards Ward; the appellant nodded his head towards the co-defendant, as if to give some sign or signal, he then walked around Ward and hit him in the jaw.  M saw this happen.  The co-defendant then punched Ward with his right hand.  The appellant then punched Ward in the face, causing him to fall to the floor.  Ward started to bleed from the mouth and nose.  M made as if to run off in order to get help but the two men warned him not to do so; and he stayed to see both men kicking and stamping on Ward as he lay on the ground. M told them to stop but they threatened him that the same would happen to him if he went to the police. M then helped Ward to a nearby shop. M said that there had been a girl there, with a baby, this plainly was the missing witness Kayleigh Knightsbridge, but he did not know her name. M went with Ward back to his (Ward’s) mother’s house and he was then taken to hospital. This was an eye-witness account, which – if accepted by the jury – established a joint attack by the appellant and by the co-defendant. 
8.	In interview, both the appellant and co-defendant admitted that they were there in the park but each blamed the other. It is important to note that at no time during the course of his four interviews did the appellant say that Kayleigh Knightsbridge was there, let alone that she could wholly exonerate him. He did not mention her at all.  The co-defendant had said that Kayleigh Knightsbridge had been with them before hand but that she had not been present in the park. The appellant did not mention Kayleigh Knightsbridge at all until he was seen by his solicitors very much later (on 4th September), by which time her presence had been mentioned by the co-defendant and indeed by M.
9.	Both the appellant and the co-defendant gave evidence at the trial. The appellant said that although they had sent a message to Ward to meet him in the park, it was not to lure him there for the purpose of attacking him, the violence he said was triggered by Ward making some obscene remark about his co-defendant’s sister; whereupon he (the co-defendant) had taken Ward in a headlock, had pushed his chest, causing him to fall to the ground, he had then punched and kicked him. He claimed that he (the appellant himself) had taken no part whatsoever in the violence. He claimed that Knightsbridge had disappeared since the incident and could not now be traced.
10.	He called two witnesses to say that the co-defendant had admitted sole responsibility to them. Geraldine Pavey his ex-girlfriend said that she had heard the co-defendant admit that he (the co-defendant) and he alone had attacked Ward. She said that she volunteered herself as a witness to the appellant’s solicitors, a couple of weeks before the trial because she thought that he was innocent. Deborah Moore (the appellant’s mother) gave evidence that she knew the co-defendant.  She claimed that a couple of weeks after the incident, she met the co-defendant in the street and he told her also that he and he alone had attacked Ward and the appellant was innocent.
11.	Townsend, the co-defendant, also gave evidence. He said that the appellant had spoken to Ward earlier that day about a bicycle, which he alleged Ward had taken from him. He suggested that the meeting in the park was arranged by the appellant to give Ward a slap, as he put it, for not returning the bicycle. At first Townsend thought that he (the appellant) was joking but when he realised that he meant it, he made clear that he did not want to be involved in any violence. However, he went to the park with the appellant; he saw him meet Ward and he saw the appellant attack him. The appellant pushed or punched Ward, he then punched him again and threw him to the floor.  He landed seven or eight blows and then kicked him on the ground. He told Ward not to grass on him. The co-defendant said that all this time he (the co-defendant) played no part in the violence. The only person to use any force on Ward was the appellant. He said that M was there but Kayleigh Knightsbridge was not.
12.	The issue for the jury was whether or not the attack had been carried out by the appellant or by the co-defendant or by both of them. As so often happens in a cut throat defence of this kind, especially when there is an eye witness saying that both defendants were in it together, the jury convicted both. 
13.	The only ground of appeal now put forward is that there is fresh evidence from Kayleigh Johnson (formerly Knightsbridge). It is said that attempts were made to find her at the time; we are sceptical about that, since she seems always to have lived in the same house in Chelmsford. Furthermore it is less than convincing that she re-surfaced within a couple of days of the end of the trial. But we do not decide the appeal on these points, and we allowed her to give evidence before us. 
14.	She said in evidence before us that she knew the appellant beforehand, she called him DJ; she also knew the co-defendant Townsend. She had met both of them by arrangement at the Star and Garter public house, she was with her baby, whom she was pushing in a pram. They left the pub together and went into the park where they met two other boys, as she called them, one was M; she didn't know the other, but this was clearly Kelvin Ward. She said that although it was dark she could see what was going on. Townsend walked towards Kelvin and hit him in the face. She said that she remembered that Townsend had said something to her before he had hit Kelvin but she claimed not to remember what he had said; she repeated that several times; we shall return to this point later. According to her, Townsend then hit Kelvin again, he went to the ground where Townsend kicked him in the face. She said that DJ had not taken any part in this assault. After the incident she said that she walked over to the shop with DJ, where she saw the boy M, who also had witnessed the attack. She said in terms that she did not speak to Townsend after the attack; the last she had seen of him was in the park.
15.	We observe that her evidence therefore appeared to exonerate the appellant entirely. If she be telling the truth, it seems to us to be incredible that the appellant did not say even once during the course of his four interviews that if the police did not believe his denials they had only to speak to Kayleigh Knightsbridge who would confirm his account. Yet he did not do so.
16.	She was cross-examined about what Townsend had said to her before he hit Kelvin and reminded that in the witness statement which she had previously made she said that Townsend had asked her to record the assault on the video camera in her mobile phone. When this was put to her she agreed that that is what he had said to her; it seems a very singular remark to have forgotten. She said she was unable to record it because the camera was not working, which she realised as soon as she depressed the start button on the camera. She was then reminded that in her statement she had actually said that she had spoken to Townsend after the incident at the shop, where he (Townsend) had asked her to show him the camera sequence of the assault and only then did she realise that her camera was not working. These changes of story are in themselves very troubling but they have a particular significance which became apparent when the appellant waived privilege and the solicitors file was examined. 
17.	In the file note of the appellant's first account given to his solicitors, on 4th  September 2008 he had said that the incident had been filmed by ‘CCTV on someone's phone’; this can only have been a reference to Kayleigh Knightsbridge filming the incident herself. 
18.	So here is another serious problem with the evidence of Kayleigh Knightsbridge, first she says that she can't remember what Townsend said to her before the incident, but later says that he asked her to film it, then she says that she didn't speak to him after the incident but later she remembers that she did; she told us that she immediately realised that her camera was not working but at the time suggested that she only realised that when she tried to show the film to Townsend and yet the appellant himself suggests that he actually saw the recording on her camera. There are here several significant inconsistencies, which cannot be accounted for by mistake or forgetfulness or confusion. 
19.	Mr. Gilbert in his further written submissions to us (dated 5th February) asks us to judge Kayleigh Johnson’s evidence in isolation and not in the context of the other evidence in the case. We do not consider that this is the appropriate way to approach her evidence; it is not satisfactory to consider her evidence on its own and to say either we reject it or we accept it, presumably upon the ‘impression’ that she created; nor have we rejected her evidence upon the assumption that the evidence of M must be right; we have simply sought to test her credibility in the light of other established facts and in the light of what she herself has said before. We regret that, applying these criteria, we did not find the evidence of Kayleigh Knightsbridge to be ‘capable of belief’.
20.	Consequently, the criteria for admissibility under Section 23 of the Criminal Appeal Act are not fulfilled and we formally decline to admit her evidence. The evidence that both joined in the attack on Kelvin Ward was overwhelming, we have no doubt as to the safety of this conviction and accordingly the appeal is dismissed.