McAfee & Anor, R. v

Under Criminal Justice Act 2003, section 139, a witness may refresh memory from an earlier document if the statutory conditions are met. The statute imposes no requirement that the document be contemporaneous. The trial judge decides whether the witness’s earlier recollection was likely to have been significantly better. An appellate court will ordinarily not interfere unless that assessment was obviously wrong, unreasonable or perverse.

Evidence of a co-defendant’s previous conviction may be admissible through the section 101(1)(e) gateway where it has substantial probative value on an important issue between co-defendants. In a cut-throat defence, a prior arson may be relevant to who started a fire intended to conceal a murder.

McAfee and Ellis were convicted at Wolverhampton Crown Court of the murder of Benjamin Jones and each received life imprisonment with a recommended minimum term of 20 years. The prosecution alleged that they killed Jones during a burglary and subsequently started a fire to destroy evidence. Each defendant denied involvement and blamed the other.

McAfee appealed by leave against conviction. Ellis renewed his application for leave after the single judge’s refusal. They challenged rulings on bad-character evidence and the use of a witness statement to refresh Nicola Smith’s memory. McAfee also challenged the summing-up of recognition evidence from four witnesses.

1. McAfee’s appeal was dismissed and Ellis’s renewed application for leave to appeal was refused. McAfee’s conviction was safe.

2. Section 139(1) of the Criminal Justice Act 2003 was satisfied. Smith confirmed that her September 2004 statement recorded her earlier recollection and that her recollection was likely to have been significantly better then than at trial. Section 139 imposes no requirement of contemporaneity. The trial judge was best placed to assess the witness and the ruling could not be characterised as obviously wrong, unreasonable or perverse.

3. Although a judge retains a residual discretion to refuse an application under section 139 after the statutory conditions are met, there was no good reason to do so. The jury received fair directions on refreshed memory and prior inconsistencies, and could assess Smith’s reliability.

4. The refusal to admit Ellis’s older theft and burglary convictions was within the trial judge’s judgment. They could not be shown to be drug-related, and the judge fairly balanced the defendants’ positions.

5. Ellis’s arson conviction had substantial probative value on an important issue between co-defendants under section 101(1)(e). The deliberate fire could realistically be considered part of an attempt to conceal the murder. Since McAfee alleged that Ellis was the murderer, the conviction was relevant to Ellis’s propensity to start fires. Smith’s evidence did not conclusively establish Ellis’s alibi. Once admissible through that gateway, section 101(3) afforded no discretion to exclude it.

6. The summing-up gave an adequate identification warning and fairly identified the relevant observational weaknesses and discrepancies. The witnesses claimed recognition of McAfee, rather than a fleeting observation. There was no cumulative unfairness from the challenged rulings.

• Court of Appeal (Criminal Division): McAfee’s appeal against conviction was dismissed; Ellis’s renewed application for leave to appeal against conviction was refused.
• Wolverhampton Crown Court: On 3 November 2005, both defendants were convicted of murder and sentenced to life imprisonment with recommended minimum terms of 20 years.