Yam v R, Court of Appeal - Criminal Division, September 29, 2017, [2017] EWCA Crim 1414

Issuing Organization:Criminal Division
Actores:Yam v R
Resolution Date:September 29, 2017
 
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Neutral Citation Number: [2017] EWCA Crim 1414

Case No: 201601968C3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CENTRAL CRIMINAL COURT

OUSELEY J

T20067402

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 29/09/2017

Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

MR JUSTICE SWEENEY

and

MRS JUSTICE MAY DBE

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Between :

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Peter Wilcock QC for the Appellant

Duncan Atkinson QC (instructed by CPS) for the Respondent

Hearing dates: 18 July 2017

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Lord Thomas of Cwmgiedd, Mr Justice Sweeney and Mrs Justice May:

This is the judgment of the Court, to which we have all contributed.

Introduction

  1. In early 2008 the Appellant, Wang Yam, who is now aged 55, was tried before Ouseley J in the Central Criminal Court on an Indictment containing six Counts. Count 1 charged the murder, in May 2006, of Allan Chappelow (``the deceased'') - an 86-year-old reclusive writer, who lived alone in Hampstead in North London. Counts 2 and 3 were alternative charges of burglary and theft relating to the stealing of four cheques, mail and a mobile telephone from the deceased's home. Count 4 charged, in the further alternative, handling the cheques, the mail and the mobile telephone. Count 5 charged obtaining a money transfer in the sum of £20,000 by deception, and Count 6 charged theft of £20.

  2. On 31 March 2008, the Appellant was convicted on Counts 5 and 6. The following day he was convicted on Count 4, but the jury was unable to reach verdicts on Counts 1-3.

  3. On 16 January 2009, at the conclusion of a retrial, again in the Central Criminal Court, and before the same judge, the Appellant was convicted of murder (Count 1) and burglary (Count 2). On 29 January 2009, on Count 1, he was sentenced to life imprisonment, with a minimum term of 20 years, less 852 days spent on remand. On each of Counts 2, 4 and 5 he was sentenced to 54 months' imprisonment concurrent, and on Count 6 to one month's imprisonment concurrent.

  4. On 5 October 2010, this Court, differently constituted, quashed the conviction in the first trial for handling stolen goods (Count 4), on the basis that it was inconsistent with the failure, in that trial, to acquit on burglary and theft (Counts 2 & 3); but dismissed an appeal, which had been advanced on various Grounds, in relation to the conviction in the second trial for murder (Count 1), upon the ultimate basis that the Court entertained no doubts about the safety of that conviction - see [2010] EWCA Crim 2072.

  5. The Appellant now appeals again against his conviction for murder upon a Reference dated 26 April 2016 by the Criminal Cases Review Commission (``CCRC'') under section 9 of the Criminal Appeal Act 1995, on the basis that:

    i) The Police failure to reveal to the CPS an incident, reported in February 2007 by Mr Jonathan Bean, and potentially similar to the case alleged against the Appellant, led to material non-disclosure and denied the Defence the opportunity to present an alternative suspect for the jury's consideration.

    ii) Taken along with the lack of any evidence directly connecting the Appellant with the murder of the deceased, there was a real possibility that the conviction would be considered unsafe.

  6. At a Directions hearing on 15 March 2017, the Appellant notified the Court of his intention to seek permission to rely not only on the fresh evidence of Mr Bean, but also on the fresh evidence of two further witnesses, Peter Hall and Michael Dunne - who, like Mr Bean, had come forward in response to continued media coverage about the case but not, in each of their cases, in time for their evidence to be considered by the CCRC.

  7. During the ultimate hearing of the appeal, we heard evidence de bene esse from all three witnesses.

    Background

  8. As we have touched on above, the deceased was a reclusive writer who was aged 86 when he was murdered. He had lived alone for many years in a large house at 9 Downshire Hill in Hampstead. He had, in the past, been a motorcycle enthusiast. However, the evidence from his neighbours was that, by 2006, he was very deaf, very frail, pale and quite lame - walking with a stick. He would, nevertheless, make a daily trip to the library to read the newspaper. When out, and whatever the weather, he would always wear a very old long black leather motorcycle coat with string for a belt. His immediate neighbour, Lady Listowel, said that they would chat sometimes, that he was very intelligent, and that once he did get talking he could not stop.

  9. By 2006, the house at 9 Downshire Hill had become very dilapidated, and its front garden was very overgrown. The interior was squalid - with the deceased apparently sleeping in a sleeping bag in a room on the second floor (later designated `Room 16'). He did not allow people into the house, save for Tom Carr, his handyman since 2001. Mr Carr's evidence was that, in 2004, the deceased had also allowed into the house a man who was helping him (Mr Carr), and that neither of them smoked (which was of some significance given later DNA findings). Mr Carr said that his last visit to the house had been at Christmas 2005, when he had endeavoured to deliver a present.

  10. Because of the obvious dilapidation of the house, it was not uncommon for neighbours to find people in the overgrown front garden who thought that the house was unoccupied, and for people to make enquiries of Camden Council (to which the deceased paid his Council Tax monthly in cash) expressing an interest in acquiring the house.

  11. The deceased had a Motorola mobile telephone, with an Orange network SIM card with a telephone number ending 8642. Significantly, the Orange network routinely recorded the unique number of the handset used to make each call with that SIM card. The deceased's Motorola handset was later designated `Handset 1'.

  12. The deceased had four active bank accounts (the correspondence for each of which was sent to 9 Downshire Hill), namely:

    i) An account with the Alliance and Leicester, for which he had a chequebook and a debit card. As at 26 April 2006, when a statement was sent, the account was in credit in the sum of £418.63.

    ii) An account with HSBC, for which he had a chequebook but no cards, and used to attend local branches to make cash withdrawals by cheque. As at 17 May 2006, when a statement was sent, the account was in credit in the sum of £1,172.

    iii) An account with RBS. As at 15 May 2006, when a statement was sent, the account was in credit in the sum of £669.26.

    iv) An ING Direct Savings account. As at 6 April 2006, when a statement was sent, the account was in credit in the sum of £52,167.79. Monies could only be withdrawn from the account by way of transfer to the deceased's RBS account. A transfer could only be achieved by telephone contact with ING and the successful answering of various security questions. The deceased had not taken up the additional option of arranging a facility for transfers to the RBS account to be made online.

  13. The deceased also had a Sainsbury's Visa Card, the account for which was administered by HBOS. A statement was sent each month to 9 Downshire Hill.

  14. The house at 9 Downshire Hill had an outer front door that was relatively flimsy and not very secure. That door had a letterbox from which post, which was delivered daily, if fully pushed through, fell into a small hallway. There was then a far more secure inner door leading to the rest of the house.

  15. On 26 March 2006, the deceased went to the United States for a holiday. As he was expecting correspondence to be delivered whilst he was away (in particular bank statements, dividend payments from his substantial shareholding in the Rank Group and a cheque from the Inland Revenue), he made arrangements with Lady Listowel for any post that had not been pushed through the letterbox to be pushed, and that was done (albeit that the two postmen who made deliveries said that they always pushed the post all the way through anyway).

    The events of May and June 2006

  16. It is necessary to set out and analyse in considerable detail what then happened in May and June 2006 and in particular the involvement of the Appellant in relation to the deceased's mobile phone and SIM card and the deceased's bank accounts and the relationship of those matters to what can be established about the murder.

  17. The deceased returned from the United States (where he had bought a laptop computer) on Monday 1 May 2006. He found that the outer front door had been forced, that his post (which, as it turned out, did not include the expected cheques from the Inland Revenue and the Rank Group, which were actually issued after his return) had been stolen, and that an attempt had also been made to force the inner front door. He reported the theft to the police on Tuesday 2 May 2006 - saying that the outer front door had been ``jimmied''. That day, and over the following two days, the police called round to the house on a total of three occasions to try to speak to the deceased about the theft, but there was no answer.

  18. Also on Tuesday 2 May 2006 the Inland Revenue cheque, which was in the sum of £4,268.35, was issued by HMRC (which had, by then, taken over the functions of the Inland Revenue), and was thereafter posted to 9 Downshire Hill.

  19. On Wednesday 3 May 2006 EDF sent an electricity bill to 9 Downshire Hill.

  20. On Thursday 4 May 2006, the deceased voted in the local elections, topped up his mobile phone, tried to ring his handyman, Mr Carr, rang two locksmiths, and sent a letter to the USA. He used his mobile telephone phone again on Saturday 6 May 2006.

  21. On Monday 8 May 2006, the deceased called HMRC to see if the cheque which he had been expecting had been issued. The call was routinely recorded. At the end of the call somebody said ``Bye bye, thank you,'' and a voice was thereafter heard to say ``Alright, then'' and ``Mmm''. A voice expert for the Defence, Mr Hirson, gave evidence that it was possible...

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