Grounds of appeal
28.Ground 1 Fresh evidence that inconsistent post-trial accounts further undermine the credibility of BB29.In 2007 in a magazine article about her involvement BB claimed to have seen Benguit stabbing Miss Shin and to have contacted the police four or five days later. In 2008, she appeared on the Jeremy Kyle Show and repeated that, adding that she saw Benguit with the knife when he returned to the car. She gave other details none of which had been part of her earlier accounts or her evidence at three trials. In 2012 she told police that payment for the magazine article was £500, there was none for the Jeremy Kyle show. She said she knew that she had not seen Benguit stab Miss Shin but had come to believe that account over time. 30.There were already numerous credibility issues at trial arising from her lifestyle, admitted lies, changes and inconsistencies in her account. However the submission is that her post-trial false accounts went to the incident itself and were qualitatively different. Had the jury known of them it is likely to have regarded her evidence with significantly greater circumspection and might not have relied upon her. Without her the balance of the evidence was insufficient. The material relating to the media exposure should be admitted as fresh evidence under s.23 Criminal Appeal Act 1968. 31.Ground 2 Fresh evidence that Danillo Restivo may have been responsible for the murder 32.On 12 September 1993, sixteen year-old Elisa Clapps disappeared the day she had arranged to meet Restivo outside a church in Italy. He was subsequently convicted of perjury in relation to her disappearance. On 17 March 2010, her body was found in the loft of the church. Restivo was subsequently convicted of her murder in absentia in Italy.33.On 21 May 2002, he took up residence in Bournemouth. On 12 November 2002 Mrs Heather Barnett who lived opposite him was murdered in her home in Bournemouth. In June 2011 he was convicted of her murder. 34.On 12 May 2004, Restivo, in unseasonable clothing, hood pulled up round his face, was watching lone women from bushes near a path. His behaviour was so sinister that surveillance was abandoned and he was arrested on a pretext. A knife, scissors and a balaclava were found in his car but no further action taken. 35.Benguit’s submission is that post-conviction similarities between the murders of Elisa Clapps Mrs Barnett and Miss Shin are such that a jury aware of them might not have convicted. He relies upon the following:36.All victims were female and attacked during an incident in which a knife featured. Each may have been attacked from behind. All lived near Restivo. All were murdered on the 12th day of the month. Restivo was arrested when watching lone women on 12 May 2004. He left clumps of cut hair with the bodies of Elisa Clapps and Mrs Barnett. A clump of hair was found near Miss Shin where she fell. Miss Shin and Mrs Barnett were murdered in a small suburb of Bournemouth within six months of Restivo’s arrival. The absence of any scientific evidence in relation to Miss Shin’s murder is consistent with Restivo’s awareness of its importance, demonstrated by the lengths to which he went to guard against identification when murdering Mrs Barnett. Her murder was carefully planned, shown by his waiting until her children left for school. The murder of Miss Shin was prepared and planned, not opportunistic. The murderer waited until she was alone and wore a mask. Nothing was stolen in any of the three murders, pointing to gratuitous violence rather than to a robbery gone wrong. Miss Shin said her murderer was masked. For a Korean with only basic English, ‘mask’ might have meant ‘balaclava’. Following arrest on 12 May 2004 Restivo had a balaclava. 37.Benguit is obliged to concede similarities between the murders of Elisa Clapps and Mrs Barnett not shared with that of Miss Shin. Elisa Clapps and Mrs Barnett were mutilated, Miss Shin was not. There was highly distinctive interference with their clothing, none with hers. Equally, the murders of Elisa Clapps and Mrs Barnett were different the one from the other, albeit Restivo was responsible for both. Elisa Clapps was stabbed repeatedly, Mrs Barnett not at all. Although there were features in common, Restivo did not always adopt the same modus. Benguit submits that in addition to the similarities, other evidence suggests Restivo may have murdered Miss Shin. He has a marked foreign accent whilst Benguit’s is English. We were told that local resident Mr Curtis heard a foreign-sounding male voice. However Mr Lickley QC had with him his note from the trial which read: “Agitated not English voices foreign voices a male voice the other voice not determined.”38.That does not in our view amount to “a foreign-sounding male”.39.Also relied upon was Restivo’s knife, said to be capable of having caused the fatal injuries, and scissors which could have been used to cut the hair found near Miss Shin but which belonged to a female resident of Malmesbury Park Road. Restivo had a history of surreptitiously cutting women’s hair and at least one was unaware of him doing so. 40.His behaviour in relation to lone women prior to 12 May 2004 is said to raise the possibility of a preparedness to offend against women not known to him. 41.He was a proven liar by virtue of his conviction for perjury. 42.His partner Ms Marsango originally provided him with an alibi for Miss Shin’s murder subsequently undermined by her lodger who said Restivo lived on the ground floor and Ms Marsango on a different floor. We deal with this briskly. The lodger explained the location of bedrooms, not necessarily where parties slept. Though Ms Jakes who claimed to be a close friend of Ms Marsango told the police soon after Miss Shin’s murder that Ms Marsango said Restivo slept in the sitting room, as we pointed out in dialogue, that evidence sat behind more than one hearsay hurdle and was untested. 43.In the same recounted conversation Ms Jakes said Restivo said it must have been a ‘big chef’s knife which must have gone through her’. The knife had gone in to a depth of 15 centimetres, information Benguit relies upon as known only to the murderer. We are not impressed by this contention. Nothing about the alleged comment suggests more than a guess at the knife used and comes nowhere near establishing that Restivo knew the dimensions of the knife and must have been the murderer.44.In Italy Restivo was convicted of harassing female students in 1995, said to prove a history of aggression towards female students. Although Elisa Clapps and Mrs Barnett were murdered inside and Miss Shin outside, Restivo’s arrest on 12 May 2004 was strong evidence that he was capable of attack outside. Although he knew Elisa Clapps and Mrs Barnett and there was nothing to suggest he knew Miss Shin, the argument is that it is reasonable to infer he might have known her by sight as they lived a few hundred yards from each other.45.By Benguit’s trial Restivo was a suspect in relation to Elisa Clapps and Mrs Barnett. No disclosure was made after a public interest immunity application during which the judge was told there were no similarities between the three cases.46.The evidence upon which reliance is now placed is said to be more compelling, not least because Restivo has now been convicted of the two murders. The argument is that a killer who targeted women lived close to Miss Shin and that had the jury been aware of evidence suggesting Restivo might have been responsible, its assessment of BB could have resulted in a different verdict.47.Ground 3 CCTV undermines the credibility of BB48.BB told the jury that in a Volvo or a Renault Megane shortly before the stabbing she picked up Benguit. She explained her route. 49.Miss Shin separated from her companion on Malmesbury Park Road at 0248 and the ambulance was called at 0255. 50.CCTV footage was separately analysed by two experts ignorant of the facts. One was given photographs of the Volvo and the Renault and instructed to compare them with cars on the CCTV between 0230 and 0305 on the night of the murder. He positively excluded both from 02.30 until the ambulance was called at 02.55 and from 02.55 to 03.05.51.One was shown nothing and instructed to identify all cars between 02.30 and 03.05. He was unable to identify four between 02.43 and 02.55 and considered two others highly likely to be Vauxhall Cavaliers and another likely to be a Vauxhall Vectra. Thereafter he excluded both Volvo and Renault save in one sighting at 02.47 where he considered a car unlikely to be the Volvo but did not exclude it. 52.Ultimately, both concluded that neither car could be seen between 02.43 and 02.55, although they differed as to the period between 02.30 and 02.43. This evidence is said to show that BB’s evidence was false and, had the jury known of it, her credibility would have been further undermined.