Yam v R.

A defective conviction on an alternative handling count, received while the jury remained unable to decide the principal theft counts, must be quashed. It does not make a retrial on the unresolved counts unfair or oppressive. The abuse-of-process jurisdiction requires a fact-specific assessment of substantive fairness, rather than an application of criminal issue estoppel.

A qualified identification may support other evidence if its admission is fair, but cannot alone establish identification. Strong circumstantial evidence may properly be left to the jury even though the prosecution cannot prove the precise mechanics of the killing. Exceptional in-camera evidence does not render a conviction unsafe where the suggested prejudice from reduced publicity is speculative and the evidence remains fully tested before the jury.

The appellant was convicted at the Central Criminal Court, before Ouseley J, of murdering an elderly man and of associated dishonesty. The Crown case was that he had stolen and fraudulently used the deceased’s identity, mail, bank accounts and credit card, and that the same conduct supported the inference that he was the killer.

At an earlier trial, the jury convicted him on two fraud counts and on an alternative handling count, but could not agree on murder, burglary or theft. At the retrial he was convicted of murder and burglary. He challenged the retrial as an abuse of process, the use of in-camera evidence, qualified visual identification and expert voice evidence, the sufficiency and safety of the circumstantial case, and his sentence.

1. The appeal against conviction was dismissed. The court nevertheless quashed the separate conviction for handling on count 4, because that alternative verdict should not have been accepted while the first jury had not acquitted on the burglary and theft counts. The defect did not prevent the retrial. The relevant question was whether the later prosecution was substantively unfair or oppressive as an abuse of process. It was not: the first jury had failed to resolve whether the appellant was the thief, and there was a clear prima facie case for trial.
2. The partial exclusion of the public did not make the conviction unsafe. Open justice is the ordinary rule, but evidence may exceptionally be heard in camera where necessary for a fair trial, protection of Article 2 rights, or state security. The claim that fuller publicity would probably have produced exculpatory witnesses was speculative. The jury saw and heard the closed-session witnesses and the appellant, with full cross-examination.
3. The judge was entitled to admit the postman’s qualified identification under section 78 of the Police and Criminal Evidence Act 1974. Such evidence could not alone prove identification, but could support the substantial other evidence. The procedural defects in the identification process did not affect its reliability, and the photograph selection was not unfair.
4. The evidence of fraud, possession and use of the deceased’s mobile telephone SIM card, and related banking activity created a plainly sufficient case to answer. The jury did not need to be sure of the prosecution’s proposed reconstruction of how the killing occurred. It had to be sure that the appellant was the killer. The court had no lurking doubt as to the safety of that conclusion.
5. The mandatory life sentence stood. The judge correctly used the 30-year starting point under Criminal Justice Act 2003, Schedule 21 for murder committed for gain, and reduced the minimum term to 20 years for substantial mitigation. Leave to appeal against sentence was refused.

• Court of Appeal (Criminal Division): In Yam v R., [2010] EWCA Crim 2072, the court dismissed the appeal against the murder and burglary convictions, quashed the defective handling conviction on count 4, and refused leave to appeal against sentence.
• Central Criminal Court (Ouseley J): At the retrial, the appellant was convicted of murder and burglary. He received life imprisonment with a 20-year minimum term for murder and a concurrent sentence of four and a half years for burglary.
• Central Criminal Court: At the first trial, the jury convicted on two fraud counts and on the alternative handling count, but did not reach verdicts on murder, burglary or theft.