Parchment v R.

A retrial is not rendered unfair merely because the prosecution calls a witness as truthful whose evidence supports an alternative allegation, while maintaining a separate allegation that can succeed only if the jury rejects that witness. The question is whether it was fair to continue the prosecution in light of the evidence available and whether the conviction is safe.

Where substantial independent evidence supports the conviction, the later conclusion that the witness was unsatisfactory does not itself establish injustice. Fresh evidence will not undermine the safety of an identification conviction unless it materially and clearly contradicts the witness’s trial evidence.

The appellant had been convicted of the murder of Jahmal Moore in 2006. The Court of Appeal quashed that conviction and ordered a retrial after fresh evidence from Darren Mathurin suggested that the original plan had been to murder another man, Sean Cephanis, and that the shooting of Moore may have been a spontaneous joint enterprise.

At the retrial, the Crown called Mathurin and charged conspiracy to murder Cephanis as an alternative to the murder count. The jury convicted the appellant of Moore’s murder and thereby rejected Mathurin’s account. The appellant contended that it had been unfair for the Crown to call Mathurin while maintaining the murder allegation. He also sought to rely on fresh evidence from his sister concerning the evidence of an identifying witness.

1. Appeal dismissed. The retrial was not unfair and the murder conviction was safe.

2. The Crown had advanced Mathurin as a witness of truth, but it was not bound to abandon him before the retrial merely because he later proved to be wholly unsatisfactory. Its later decision not to call him in further proceedings did not establish that calling him at this retrial had been unfair.

3. There was no unfairness in maintaining the alternative allegation that the appellant murdered Moore. The jury had been clearly directed that it could not convict on both the murder count and the conspiracy to murder Cephanis count. The murder allegation could properly remain available if the jury rejected Mathurin’s evidence, particularly given the substantial independent evidence implicating the appellant, including telephone and cell-site evidence, the deceased’s dying declarations and identification evidence.

4. Any alleged failure to give an additional warning about Mathurin could not affect a conviction which depended upon the jury’s rejection of his evidence. Nor was there a realistic basis for concluding that the jury’s exposure to Mathurin’s account improperly prejudiced its consideration of the murder count.

5. The proposed fresh evidence from the appellant’s sister did not materially undermine the identifying witness’s trial evidence. It did not amount to a clear later admission that the witness had not seen the appellant among the group at the shooting. Leave to rely on that evidence was therefore refused.

• Court of Appeal (Criminal Division): On the present appeal, the court upheld the appellant’s 2009 retrial conviction for murder and dismissed the appeal.

• Central Criminal Court: On 14 December 2009, following a retrial, the appellant was convicted of the murder of Jahmal Moore.

• Court of Appeal (Criminal Division): On 16 June 2009, the court quashed the appellant’s earlier conviction and ordered a retrial: [2009] EWCA Crim 1309.

• Central Criminal Court: On 4 May 2006, the appellant was first convicted of the murder of Jahmal Moore.