Yam v R.

On an appeal relying on fresh evidence, the appellate court must assess the safety of the conviction for itself in the context of the whole trial. It must not attempt to reconstruct the jury’s deliberations. In a case of difficulty, it may test its conclusion by asking whether the evidence might reasonably have affected the jury’s verdict.

Fresh evidence which is credible, admissible and satisfactorily explained will not justify admission or an allowed appeal unless it affords a ground for treating the conviction as unsafe. In a non-disclosure case, the material must create a real possibility of a different verdict after all the trial circumstances are considered.

Wang Yam was convicted at a retrial in the Central Criminal Court of the murder and burglary of Allan Chappelow. His earlier appeal against the murder conviction was dismissed, although the Court of Appeal quashed a separate handling conviction.

The Criminal Cases Review Commission referred the murder conviction under section 9 of the Criminal Appeal Act 1995. The reference alleged non-disclosure of an incident reported by Jonathan Bean in 2007. Yam also sought to rely on the fresh evidence of Peter Hall and Michael Dunne. The court heard all three witnesses de bene esse.

The central issue was whether the new evidence could undermine the circumstantial case that Yam alone controlled the deceased’s handset, SIM card, identity and accounts after the likely date of death, and was therefore the murderer.

1. Appeal dismissed. The murder conviction was safe. The court heard the three witnesses de bene esse, but did not admit their evidence under section 23(2) of the Criminal Appeals Act 1968.
2. The court applied the appellate approach in R v Pendleton [2002] 1 WLR 72. Its task was to decide safety for itself, not to identify the jury’s route to conviction. In a difficult case, the court may test its assessment by asking whether the new evidence might reasonably have affected the trial jury’s decision.
3. The statutory conditions of capability of belief, admissibility and a reasonable explanation for the absence of the evidence at trial were met. The evidence did not, however, afford a ground for allowing the appeal. There was no real possibility of a different verdict.
4. The evidence establishing Yam’s exclusive use of the deceased’s handset and SIM card, and his control of the deceased’s identity and financial affairs after the likely date of death, was compelling. The calls and transactions concerning direct debits and postal communications could only sensibly be understood as acts by a person who knew of the death and wished to delay its discovery. That created a unique personal connection between Yam and the murder.
5. Mr Bean’s later postal theft incident, Mr Dunne’s account of an unidentified man at the property, and Mr Hall’s account of night-time activity on Hampstead Heath did not disrupt that evidential connection. The jury had already heard evidence of other postal theft, unidentified DNA and the possibility that unknown persons had been at the house. None of the fresh evidence created a realistic alternative perpetrator or diluted the proof that Yam alone undertook the relevant fraud.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, dismissed Yam’s further appeal against his murder conviction: [2017] EWCA Crim 1414.
• Court of Appeal (Criminal Division): On 5 October 2010, quashed the handling-stolen-goods conviction but dismissed the appeal against the murder conviction: [2010] EWCA Crim 2072.
• Central Criminal Court: At a retrial in January 2009, convicted Yam of murder and burglary. He received life imprisonment for murder, with a minimum term of 20 years.
• Central Criminal Court: At the first trial in 2008, convicted Yam of obtaining a money transfer by deception, theft and handling stolen goods. The jury did not reach verdicts on murder, burglary and theft.