Lady Justice Rafferty:
1.The appellant, Omar Benguit, 41 years old, originally faced trial in 2003 with Nicholas Gbadamosi for:2.The jury failed to agree on Benguit, and on Gbadamosi for assisting an offender, but acquitted Gbadamosi of both rapes. At a retrial in 2004 the jury acquitted Benguit of rape and Gbdamosi of assisting an offender but failed to agree on murder. At the second retrial in 2005 in the Crown Court at Winchester Benguit was convicted of murder and sentenced to imprisonment for life, with a minimum term of 20 years. On 12 July 2005 his appeal against conviction was dismissed.3.He appeals against conviction upon a reference by the Criminal Cases Review Commission (“CCRC”) under s.9 Criminal Appeal Act 1995 on the following grounds: Inconsistent post trial accounts further undermine the credibility of the main prosecution witness BB; and fresh evidence indicates that Danillo Restivo may have been responsible for the murder. His application for leave to appeal on a ground not related to the CCRC Statement of Reasons, expert evidence as to CCTV, has been referred by the single judge.4.At approximately 0250 on 12 July 2002, 26 year old Korean language student Miss Jong-Ok Shin was stabbed on Malmesbury Park Road in Bournemouth walking home from a night club. She was sober, no-one witnessed the attack, and the knife was never recovered. Miss Shin told police and medical staff in poor English that her attacker from behind was a man in a mask who ran off. She had been stabbed in the back three times. On 22 August 2002 Benguit was arrested on suspicion of her murder.5.Residents of Malmesbury Park Road said they heard on the street in the early hours of 12 July 2002 voices, arguing between a male and a female, piercing screams, a disturbance, and then a woman’s voice moaning. Some heard Miss Shin falling against a car. Two found her supine asking for help. She said she had been attacked by a man.6.Dr Anscombe post mortem found no defensive injuries, no signs of a prolonged struggle and in his opinion she was stabbed unsuspectingly from behind. If the three stab wounds were in quick succession, there would have been little opportunity for the attacker to have been contaminated with blood. The blade was likely to have been single edged and at least 14 to 15 centimetres long. 7.At the appellant’s second retrial, BB’s evidence was that she funded her addiction by prostitution, drug dealing and other crime. In the summer of 2002 she had known Benguit for about a year. She was a regular visitor to a crack house 47 St Clements’s Road, where she got her drugs from Joan Sheridan.8.Between a day and a week before the murder, she was in the Richmond Arms Public House with a group that included Benguit and Gbadamosi (not another man as she had said previously). They talked generally about Korean girls being pretty and having ‘tight pussies’ and about a particular Korean girl they wanted to ‘fuck’. 9.In the early hours of 12 July 2002, she dropped another addict on Charminster Road. As she pulled away she heard shouting, and saw Benguit, Gbadamosi, and Woolry, a Jamaican national. They flagged her down and hitched a lift to the crack house. 10.As she drove down Malmesbury Park Road, she saw a small figure walking and Benguit shouted out from the window ‘Look at the arse on that.’ The men told her to pull over because they wanted to get the woman to party with them. She stopped a little way down the road, all three went in the direction of the girl. They were not away long. She did not hear any sharp loud screams, but her window was half closed. 11.When they returned they had been running and were sweating, shouting, swearing and arguing. Gbadamosi asked Benguit ‘What the fuck have you done?’ and they told her to drive off and to turn off the lights. They were agitated, had all taken crack, and Benguit was very drunk. Gbadamosi was very annoyed, saying to Benguit ‘You can’t handle your drink. Every time you get yourself into trouble.’ He was also worried about being stopped by the police. 12.Benguit had small patches of blood on his t-shirt and she assumed a fight. He removed his t-shirt, used it to wipe blood from his arm and put it in a creamy carrier bag. Something else was in the carrier bag, wrapped in the t-shirt. He put the bag under the passenger seat. 13.The men did not want her to park outside the crack house. Benguit and Gbadamosi said a handbag snatch went wrong and they got into a scuffle. The men were wound up, stressed out, desperate for crack and, once they smoked their pipe, wanted another lift. (In previous witness statements, she said the men smoked a pipe in the car.) She did not feel able to refuse them. The creamy carrier bag had blood on it so the t-shirt was transferred to a white carrier bag. She took them to a cul-de-sac where she claimed they raped her. Then they went to a flat where Benguit bathed or showered, and changed into a beige t-shirt. She dropped him outside another flat and took Gbadamosi and Darius to the river at Ifford. She parked, they went off with the carrier bag and she did not know what they did with it. 14.She claimed she was petrified by what happened that night and knew all three carried knives. She thought she might be stabbed or killed, as might her daughter. Having been on drugs for so long, she did not trust the police. However, following her arrest for shoplifting in August 2002, she began giving hints to police about who was responsible. 15.She said she had not realised she would be asked about the rape allegations and did not want to go through them again. She maintained her account of rape in the car, a Volvo or a Renault. She was scared, could not get away, did not know what to do and could not call the police. She was also raped by Gbadamosi about a month later when she delivered crack to him. Although she had previously been raped by him, she went to his house because she did what she had to do. In a previous statement, she said that this rape took place on 15 August 2002, but at that time she had a drug habit and was muddled about the dates. 16.Once she began speaking to the police, she did not tell the truth initially though her account was not a pack of lies. Her first, untrue, account was that Ricky Thompson was responsible. She gave further conflicting accounts and named Mike Big, a false name for Gbadamosi. She also indicated Omar Hussain was involved, a false name for Benguit. She claimed to think the police would work out who she meant because there was only one Omar with a glass eye. She said all sorts of other things that were untrue so as to give the police an idea of what happened without admitting that she was with the people responsible. 17.When video interviewed, she finally told the police everything. Although in a previous witness statement she described a police chase on the night of the murder, there was none. She had not enquired about a reward. She was put on a witness protection programme as a result of her disclosures. She said she thought she might have been part of the murder because she gave the men a lift. She felt guilty and as if she had done something wrong. She was scared that if the men thought she was going to turn against them, she would have been in real trouble, so she cooperated. 18.She had never benefited as a result of her involvement. 19.Several addicts gave evidence that Benguit attended the two crack houses (flats in the same building) in the early hours of 12 July 2002.20.Joan Sheridan who ran one of them remembered 12 July 2002 because it was the Orange Day parades. During the early hours Benguit and Gbadamosi were in her flat. Benguit had blood on his hands, and was looking for a change of clothes. 21.Searches and science did not link Benguit to the murder.22.To a female addict Benguit said he had stabbed a student in Charminster. The woman found a top splashed in blood and he said something had gone wrong. 23.Shaun Phipson a taxi driver ruled out his having given a lift to Benguit and Leanne Mayers on the night of the murder. 24.Benguit’s telephone call from prison to his brother was alleged to be an attempt to secure a false alibi. 25.In his interview on 22 August 2002 the appellant’s account was that by the early hours of 12 July 2002, alone, perhaps walking home, he saw police cars at the scene and heard about the murder the next day. He did not know Miss Shin, and had not spoken to, commented on or discussed Korean girls. His account on 23 August 2002 was that he did not know anyone who could provide him with an alibi. He was not involved in the murder and did not go to 47 St Clements Road in the early hours of 12 July 2002.26.His account in interview on 26 November 2002 was that at about 03.00 on 12 July 2002 he got a taxi with Leanne Mayers. They stopped at 47 St Clement’s Road to buy crack and at about 05.00 spent 20 minutes at his house where they smoked it with the driver. He then walked into town. BB might have lied for the reward or because she needed a scapegoat.27.He told the jury he did not murder Miss Shin. He did not know BB well, and had never been out with her socially. He had never made sexual comments about Korean girls. He was not with Miss BB on 12 July 2002 and had never travelled in a Volvo or Renault with her. He had never gone to a local flat with blood on his hands and t-shirt, or asked to wash his hands or for a change of top. He had not told a female addict that he stabbed a student in Charminster, nor did she find his top with blood on it. He could not be sure where he was on the night of 11/12 July 2002 because his memory had been affected by drug-taking. He gave a detailed account largely foreshadowed in his third interview. In his telephone call to his brother from prison he was not trying to create a false alibi but coming off drugs and anxious to work out his whereabouts.