Wickens, R v

J U D G M E N T

1. LORD JUSTICE KAY: On 14 February 1991 in the Crown Court at Maidstone before Hodgson J and a jury, the appellant, Trevor Wickens, was convicted of the murder of an 89-year-old woman and sentenced to life imprisonment.

2. On 12 March 1991 the appellant, acting in person, applied for an extension of time for leave to appeal against conviction. That application was refused by the single judge on 21 May 1991. On 3 June 1991 the appellant renewed his application for leave to appeal to the full court. That application was eventually abandoned by a notice signed by the applicant on 16 November 1992. On 15 April 1999 the appellant made an application to treat his notice of abandonment as a nullity and to renew his application for leave to appeal. The court declined to grant the relief sought but gave an indication that it was always open to the appellant to apply to the Criminal Cases Review Commission ("the CCRC") for them to consider his conviction with a view to referring the matter back to the Court of Appeal if they concluded that the matters raised justified such a course.

3. The appellant followed the advice of the Court of Appeal and applied to the CCRC for them to make such a reference. After investigating the matter, the CCRC concluded that the case was a proper one for the conviction to be referred to the Court of Appeal under Section 9 of the Criminal Appeal Act 1995. We now deal with the appeal that results from that reference.

4. There can be no doubt at all that on either Saturday 30 or Sunday 31 August 1986, Mrs Crandell, an 89-year-old woman living alone in Station Road, Herne Bay, was murdered in her home. Her body was discovered at about 5am on Monday 1 September when fire officers were called to a fire at her bungalow. The cause of her death was multiple facial and neck injuries and the Home Office Pathologist, then Dr Vanezis, now Professor Vanezis (to whom we will refer by his present status), concluded that the most likely cause of the facial injuries was stamping on the face and neck with a shod foot. He indicated that Mrs Crandell may also have been kicked in the face and recognised the possibility that there may have been some punching.

5. Following the discovery of the murder, an intensive police investigation was commenced. Although a number of people were arrested and interviewed, the police reached no positive conclusion as to the identity of the murderer until they received information about the appellant from a Mr and Mrs Wilson in November 1989. Mrs Wilson was an ex-wife of the appellant.

6. Both Mr and Mrs Wilson alleged in their statements to the police that the appellant had confessed to responsibility for the killing of Mrs Crandell at or about the time when she met her death. Their evidence and the evidence of another ex-wife of the appellant, Mrs Martin, as to conversations which she had had with the appellant about the death of Mrs Crandell, were to form the sole basis of the case presented by the prosecution at trial against the appellant.

7. Mr and Mrs Wilson alleged that the appellant had arrived at their home in Herne Bay in a blood stained and dishevelled state at about 8.30am on Sunday 31 August 1986. He had then remained with them at their home, which was not far from the scene of the murder, for a further two or three days. The Wilsons alleged that during his stay the appellant had given the following account. On the evening of Saturday 30 August 1986, having left the Heron, a nearby Public House, in drunken state, he had broken into a bungalow in Station Road to burgle it. However, he had been interrupted by an old woman as he searched the rooms. She was waving a kitchen implement at him. He claimed that the old woman would not stop shouting, and so he had held her with one hand and repeatedly punched her with the other until she was quiet. In response to Mrs Wilson's questioning, the appellant had said that the old woman had been wearing a nightie and a cardigan. Mrs Wilson believed that he had said that the nightdress was blue. The Wilsons contended that the appellant had threatened them to prevent them from repeating to anybody else what he had told them.

8. The Wilsons' account continued that the appellant had taken a petrol can from their shed later on during the Sunday and had returned to Mrs Crandell's bungalow that night to set it on fire. According to Mrs Wilson, the appellant told them that he had scattered petrol around the bungalow before setting fire to it. The fire brigade investigation confirmed that petrol had been used. The appellant was also alleged to have said that after leaving the bungalow, he had filled the petrol can with stones and thrown it into a lake. The lake in question was subsequently dredged, but no petrol can was noted. However, there was evidence which casts doubt upon whether it would have been found in the search.

9. The Wilsons said that they had been too frightened to report the appellant to the police at the time and they thought that he would in due course be caught in any event. However, at a later date they saw a newspaper report of what they understood to be a deathbed confession to the murder by another man about a year later. As a result of reading that article, they had felt compelled to do something about the matter and they had telephoned both the Samaritans and anonymously the Herne Bay police station. When nothing came from that action, they eventually decided to report their knowledge to the police in November 1989.

10. The appellant was not arrested until 4 December 1989. Whilst he was under arrest, the police approached and took a statement from Mrs Martin.

11. Mrs Martin in her statement and in evidence to the court alleged that the appellant had confessed to her one evening in October 1986 after they had both been drinking. According to her, the appellant was very upset and started to cry. He told her that he had been responsible for the murder of the old lady in Herne Bay. Mrs Martin knew about the incident to which he was referring, but said that she could not really take in the rest of the story. She said that he had said something about pushing the woman away and that she had fallen. Mrs Martin also remembered that he had said something about hitting the woman on the head. Mrs Martin said that after hearing this, she went out to phone the Samaritans and then later to see her friend, before returning to the flat she then shared with the appellant. She said that she had not reported the matter to the police because she was not sure whether to believe it or not.

12. The appellant was interviewed by the police. The allegations made by the Wilsons and Mrs Martin were put to him. He denied that he had taken any part in the burglary and killing of Mrs Crandell. He further denied that he had made any confession to the Wilsons or Mrs Martin.

13. He could, however, suggest no reason why the Wilsons and Mrs Martin should be making up false allegations against him.

14. At trial, the defence concentrated upon undermining the reliability of the evidence of the alleged confessions. One of the issues upon which they focused was the time of death. If the Wilsons' account was accepted, the murder must have occurred between 11pm and midnight on the Saturday evening. If this part of their account could be shown to be false, it clearly cast doubt upon the entirety of their evidence which necessarily would have an effect upon the jury's views of the evidence of Mrs Martin.

15. Matters concerning the time of death are central to the ground upon which the CCRC saw fit to refer this case back to this Court. As he was entitled to do, the appellant has raised other matters by way of grounds of appeal, but we thought it right in the first place to concentrate upon the matter which led to the reference, and for reasons which we will explain, we have found it unnecessary to go on and consider the other grounds.

16. It is necessary, therefore, to examine what was said at trial to indicate the time of death. Mrs Crandell's body was found at about 5am on Monday 1 September 1986. A neighbour had seen smoke coming from the premises and alerted the authorities. Fire officers forced entry to tackle the fire and discovered the body. At 5.09am ambulancemen examined the body and recorded that it was stiff and cold. PC Webb, who saw the body at 5.20am, noted that rigor mortis had set in.

17. At 6.50am, Dr Mobin examined the body at the request of the police and certified death. At some stage that morning the body was transferred to the mortuary at Kent and Canterbury Hospital for post-mortem examination. There is no evidence one way or the other as to whether it was refrigerated on arrival pending the examination. The practice was to refrigerate if there was likely to be a delay before the post-mortem could start, but not to do so if there was not likely to be any significant delay.

18. Professor Vanezis, the pathologist, was present by 2.30pm and the examination seems to have got under way at about 3pm. Professor Vanezis found that rigor mortis was fully established at the commencement of the examination. In evidence to this Court he explained that the process of examination necessarily interferes with the rigidity of the body and hence it is not possible to say whether the rigor mortis had started to wear off during the period of examination.

19. On 25 September 1986 Professor Vanezis made a witness statement for use in any proceedings arising from the death. That statement recorded his finding of rigor mortis being fully established, but contained no further indication of possible time of death.

20. Since the police were unable to form any conclusion as to the person responsible, no other post-mortem examination was carried out. Almost inevitably, if the appellant or anyone else had been charged with murder at that time, the defence would have instructed their own pathologist. However, in the absence of a suspect there was no such second post-mortem. Procedures, which may require an independent second post-mortem in those circumstances before release of the body, were not at that date in place.

21. We are told by Mr Barnes QC, who has represented the appellant at this appeal, that so far as he is aware, following the arrest of the appellant and his being charged with murder, no independent pathological evidence was obtained by the defence to consider and review the findings of Professor Vanezis. We are somewhat surprised if that is the position, particularly as there was a dispute about time of death, and we are very conscious that we have no direct information from those responsible for the defence at the time of trial. However, we do not think that anything turns on this aspect of the matter.

22. Professor Vanezis made no further statement and thus it appeared that the prosecution had not informed the defence before the trial was under way that the doctor might be able to express a view about the timing of the death. However, examination of the material available relating to Professor Vanezis' evidence at trial strongly suggests to us that there must have been some communication on this matter between the prosecution and the defence before his evidence was given.

23. In considering this case, we have been at considerable disadvantage of not having available to us a transcript of the doctor's evidence to the jury. Such a transcript is no longer available so long after the conviction was recorded. We have, therefore, had to piece together our understanding of what he said from two sources: the judge's summing up and the notebooks of Mr Altman, junior counsel for the prosecution at trial, who has represented the prosecution on this appeal.

24. Mr Altman's note records that after dealing with the injuries suffered by Mrs Crandell, Professor Vanezis was referred to the evidence of the ambulancemen and PC Webb and to photographs taken of Mrs Crandell's body at the scene and at post-mortem. He told the jury that rigor mortis was fully established at his examination and indicated that the other evidence suggested that to be the case when the body was found. There is then a distinct heading in Mr Altman's note, " Time of death" , which seems to us to suggest that Mr Geoffrey Nice QC, who was leading for the prosecution, indicated that he was going to ask the witness to deal specifically with the relationship between his observation and the likely time of death. It seems to us inconceivable that counsel of the experience of Miss Heather Hallett QC (as she then was), who was leading counsel for the defence, would have permitted this evidence to be given unless she had had prior notice, to which she was entitled, of what the doctor would say. Since there is no statement from the witness dealing with this aspect of the matter, it seems probable that there had been a communication between counsel, and she had understood what Professor Vanezis was likely to say and that it was more likely to assist the appellant rather than disadvantage him. In such circumstances, we can well see why it was thought unnecessary to obtain a further statement.

25. Mr Altman's note continues by recording the witness as saying that estimating time of death from the condition of body was "not a definite science" and that only a broad approximation could be made. He was then asked how long it would take before rigor mortis set in. He indicated that it could be instantaneous but this was extremely unusual, and said that after six hours it can generally be detected and thereafter it slowly becomes fully established. His evidence continued that once fully established, it can last for a considerable period -- over one or two days, depending on the slowness of the onset. He said that overall from onset to disappearance can take several days -- up to a week -- but added that this was unusual. He said that for it to come on can take 24 hours sometimes, and he explained that it depends on climatic conditions. The colder the temperature, the slower the onset and it would continue longer. If it was fully established after 12 hours, after 24 hours it would begin to wear off.

26. Miss Hallett cross-examined and was told that the "normal situation" was that it was "fully established after 12 hours" and "should be worn off after 24 hours".

27. We will set out in detail what the trial judge said to the jury in the summing up about the timing, but he recorded two points in Professor Vanezis' evidence that do not fully appear from Mr Altman's note: namely, that the doctor told the jury that they should be "looking at around late afternoon on Sunday 31 August to begin with", but that thirty-six hours or so to the establishment of rigor mortis from the time of death was possible.

28. Other non-medical evidence was potentially of value in considering the time of death, and the judge was to emphasise two aspects of the evidence to the jury when he summed the case up. They were, first, the way in which Mrs Crandell was dressed when she was killed and, second, the presence of a partially prepared meal in the kitchen. As to the first point, the judge said:

"You may think that she was plainly in day clothes."

As to the second, he referred to the arguments advanced by the defence that the presence of a chicken meal out in the kitchen and not in the refrigerator was suggestive that the meal was being prepared, and when coupled with the fact that a carving fork was near to the body, it suggested that she was preparing a meal when disturbed, consistent with it being daytime on the Sunday rather than shortly before midnight on the Saturday. The judge added:

"It is entirely a matter for you but the chicken may give you cause for thought."

29. In the light of this evidence, it is not surprising to find from Miss Hallett's note prepared for her final address to the jury that she deployed these matters as a principal argument in her contention that the alleged confession had not been made.

30. When the judge summed up, he dealt with the issue of timing. We think it helpful to set out what he said in full:

"That leads to the last question posed by Miss Hallett: Was this a killing which took place as the confession said between 11pm and twelve midnight on the 30th August? Was it a night killing?

Miss Hallett submits that save for the confession, the evidence points not to a killing late at night on the Saturday, but much more probably to a killing in daylight on the afternoon of the Sunday.

What was found on that Monday morning? There was the dead body of an old woman dressed in day clothes, wearing a housecoat of some sort. Under or near her body was found a carving fork. A chicken which we can clearly see in the photograph, was discovered in a dish on top of a piece of kitchen furniture ready, you may think, for cooking. If you look at photograph 26, you can see the chicken. You can see the dish, on the right you can see what is plainly a fairly large refrigerator.

The detective would have asked Dr Vanezis to try to help him establish the time of death, because what we were supposing at that moment is that they were trying to find out what had happened. He would have received from Dr Vanezis the usual dusty answer which all pathologists give about the inaccuracy, which is accepted of any estimate, as to the time of death. The detective would, no doubt, have pointed out, at that stage, what he wanted was not evidence as to whether any given set of facts was compatible with scientific truth, but what he wanted was help at the investigation stage.

The Doctor would then have considered the evidence of the ambulanceman. What he found at 5 o'clock on that Monday morning, and he would have taken into account what he found himself at post mortem. He would have concluded, as he did conclude to you, that rigor mortis was established at 5am. He would then have said, as he said to you: 'There is an accepted rough guide that rigor mortis sets in around six hours after death becomes established around twelve hours after death, so my best guess, is that you should be looking at around late afternoon on Sunday 31st August to begin with anyway'. Sherlock Holmes would, no doubt, at that stage have said 'elementary'.

She was disturbed while preparing the chicken for evening meal during Sunday afternoon with a carving fork in her hand, attacked and killed. That, of course, would be some eighteen hours later than the time confessed to. Dr Vanezis made this very clear to you. The time confessed to, that is the night of the Saturday, is not in any way excluded by the forensic evidence. Thirty-six hours or so to the establishment of rigor mortis from the time of death is perfectly possible. One question you will have to ask yourself is what, between 11 o'clock and midnight, is the chicken doing in the dish and not in the refrigerator?

If you look at photograph number 9, a little point perhaps, it does look as although the bed seems to be undisturbed. What, if it was midnight, was she doing with a carving fork in her hand? The suggestion is, hearing an intruder she armed herself with it. Surely she would have been more likely to arm herself with a knife, whereas if it was on the afternoon of the Sunday, when she was disturbed she might, you may think, easily have had a carving fork in her hand for culinary purposes to perhaps prick the chicken before putting it in the oven.

Members of the jury, those are things you consider when you are looking at the evidence in the case. Of course, scientific evidence, as I said, is perfectly compatible with the confessed time of late Saturday evening. It is entirely a matter for you but the chicken may give you cause for thought."

31. The grounds of appeal that relate to this aspect of the case fall into two distinct areas. First, it is said that documentation showing precisely what Professor Vanezis could say about the time of death was not disclosed to the defence and, second, that there is further evidence available from Professor Vanezis, and to a limited extent from another pathologist, that casts doubt upon the safety of the conviction.

32. The documentation that gives rise to the suggestion that there was a want of disclosure was discovered during the CCRC investigation into the case. The first is a police message form (number 93 in the inquiry) recording a telephone conversation between Professor Vanezis and DS Cruttenden at 10am on 4 September 1986 (three days after the post-mortem examination). The information section reads:

"Phoned re time of death. At p.m. body had been a minimum of 12 hrs. More likely 18-24 hrs."

Then after a line left blank, there appears the customary symbol for "therefore", followed by:

"Time of death not after 2.30 1/9/86 or before 14.30 hrs 31/8."

The form records that the action required was to "record the details only" and that the officers responsible for the inquiry had been informed.

33. The suggestion made by the CCRC in referring the case to the Court and by Mr Barnes in opening the appeal was that this document, which it is accepted was never disclosed to the defence, recorded information in the possession of the police that would have assisted the defence of which the defence were unaware. In particular, it was suggested that Professor Vanezis was giving time limits for the death wholly inconsistent with the alleged confession, and therefore the prosecution case.

34. On examining the document we were far from sure that it purported only to record what the doctor had said. One distinct possibility was that the first passage, which was broadly the same as the evidence which Professor Vanezis gave at trial, came from him and that the inference drawn beneath as to time limits was a conclusion the officer drew from that information rather than one that the doctor had stated.

35. When Professor Vanezis gave evidence to us, he doubted that he would ever have given any absolute time limit, as the document had been thought to suggest, because he would always qualify what he said by the imprecision of the estimating process. He thought it was more likely, as we had suspected, that the second passage was the thoughts of the officer consequent upon their conversation rather than what he had said.

36. We have no doubt at all that this is the case. On every other occasion when he has spoken about the matter, Professor Vanezis has refused to be drawn to any precise time limits because he views departures from the normal as a possibility. We have no doubt that the much more precise conclusion was put on the matter by the police officer and not by Professor Vanezis.

37. In only one other respect is there a departure from what Professor Vanezis said to the jury, and that is that in his evidence to the jury he put the most likely period between death and his examination as 12 to 24 hours. The message suggests that is "more likely" to be 18 to 24 hours rather than 12 to 18 hours. The doctor in evidence could not now explain why he had thought the longer period was more likely, if indeed he is accurately recorded. However, this information would not have assisted the defence. From their standpoint, a 12 to 24 hour period was, if anything, better than the shorter period, and certainly no worse.

38. Since not only must the critical information from Professor Vanezis have been disclosed to counsel before the doctor gave evidence, and since also it was led by the Crown at trial, we are satisfied that there was no material non-disclosure of this document.

39. The other document is a police internal request, date stamped 26 November 1986, which includes a passage:

"Pathological and Forensic examination revealed that Mrs Crandell had died between 12.00 hrs on 31st August and 2.30 hrs on 1st September approximately."

40. We very much doubt whether this purely internal letter, which did not do any more than record one officer's assessment of the position rather than record any actual evidence and which merely sought an officer's assistance to carry out an inquiry, required to be disclosed. So far as we are aware, the "forensic examination" can have cast no light on the time of death despite the apparent reliance on it in the report. It seems to us that no use could properly have been made of the document at trial and as such the prosecution was under no duty to disclose it.

41. Thus we reject any suggestion that the prosecution failed in their duty in making available to the defence material that might assist the appellant. That, however, is only one part of our task in this regard as we now have to consider the evidence that Mr Barnes argues could have been employed by the defence if they were aware of its existence and which, he submits, might very well have had a major influence on the jury's decision if it had been heard.

42. Having seen further reports from Professor Vanezis and also Professor Crane, an eminent pathologist instructed by the CCRC, we were in no doubt that we should at the very least hear this evidence and we record the evidence that they gave.

43. Professor Vanezis again made clear at the outset that it was important to realise that time of death is "a difficult issue", particularly when there was only rigor mortis upon which to reach a conclusion and that one could not be accurate as to the time of death. He told us, as he had told the jury, that rigor mortis is normally complete at about 12 hours and remains fully established between 12 and 24 hours. Thereafter it gradually wears off until it has gone after 36 hours. He explained that there were a number of factors that influenced the timing, of which temperature was an important one. The higher the temperature, the shorter the various periods are likely to be. Other factors were age and the frailty of the person who had died, and he explained that the state related to the muscles of the person concerned and the less muscle there was, the shorter the periods are likely to be. He thought in this case the age of Mrs Crandell and her relative frailty as seen at post-mortem and in the post mortem photographs were factors militating against longer than usual periods. Another factor was the fire and the likely consequence that, for some part of the time at least, the body was likely to have been in a hotter than normal environment even though there was no suggestion that the area immediately surrounding the body caught fire and the smoke damage was to the upper part of that area. If there was refrigeration of the body, this might have slowed down the process to an extent, but we accept that the evidence certainly does not establish there was any refrigeration and we think suggests that it was unlikely.

44. Professor Vanezis was asked the critical question: namely, whether in his professional judgment death could have occurred 39 to 40 hours before his examination, taking into account all the various factors as they were known. His response was:

"I would say that was extremely unlikely basing it on my own experience, but you can never be 100% sure. It is not impossible, but it is at one extreme end of the spectrum of possibility."

45. Cross-examined on behalf of the Crown by Mr Altman, Professor Vanezis was referred to the judge's summing up. He said that he could not really agree with the assessment attributed to him that death at 11-12pm on the Saturday was "perfectly possible", since whilst he accepted that it was possible, he would have to qualify that possibility as being extremely unlikely.

46. Professor Crane, whose considerable expertise, like that of Professor Vanezis, is not in doubt, agreed with the broad picture of timing painted by Professor Vanezis and also that both the factors of age and frailty and the likely temperature consequent upon the fire would militate against prolonged establishment and existence of rigor mortis. He, however, indicated that he could not characterise the chance of death late on the Saturday as "extremely unlikely" because of the imprecise nature of the exercise and that he would put it as "unlikely".

47. The Crown sought then to call a further pathologist, Dr Lawler, and we agreed. Dr Lawler's evidence broadly coincided with that of Professor Crane. He too thought it "unlikely" that death was on the Saturday, but he too did not think that it was possible to go as far as to say it was "extremely unlikely".

48. Mr Barnes argues quite simply that if the jury had heard Professor Vanezis give evidence in the terms that he gave evidence to us, that must have had an impact on the jury over and above that which was apparent from what was said at trial.

49. Mr Altman argues that there is no radical difference between what was said to us and what was said to the jury, and that the issue was properly left to the jury, who rejected it. He further submits that their conclusion is not surprising because there were features of the case that pointed strongly to guilt.

50. He says that there was never any cogent reason suggested why the witnesses should have effectively conspired against the appellant to have him convicted of a murder of which he was wholly innocent. He points out that there was no evidence of any collusion between the Wilsons on the one hand and Mrs Martin on the other. In this regard, he relies on the fact that Mrs Martin was only seen following the arrest of the appellant and although that was at the suggestion of Mrs Wilson, Mrs Wilson could not tell the police how to trace Mrs Martin. He points to a lack of any detail in Mrs Martin's account as being inconsistent with a story collectively invented by the witnesses.

51. Mr Altman also pointed to what he said were facts that the Wilsons could only have got from the murderer since they had never been released to the media. The principal such fact was that Mrs Crandell was wearing a nightdress and cardigan and that Mrs Wilson remembered a reference to blue which she thought referred to the nightdress.

52. Mrs Crandell was unusually attired when she died. Professor Vanezis recorded her as wearing:

"A pair of stockings

Three pairs of bloomers

One shirt

One skirt

One corset

One housecoat

Three jumpers and five vests."

He did not record a nightdress, but examination of the photographs, we believe, clearly reveals that one of the many layers of clothing was a nightdress. It was not blue in colour, but in all probability a pale pink with what appears to be a small floral pattern repeated at intervals across the material. One of the cardigans she was wearing was blue, although this was not a top layer, which was the housecoat, which was brown in colour.

53. We consider it to be difficult to imagine that a person would describe her clothing as being a blue nightdress with a cardigan over it if that person had seen her standing before she was attacked and then lying on the ground as depicted in the photographs. That is not to say that the confession can be demonstrated to be false because of this evidence. A killer, particularly one who has been drinking, may not after the event correctly recollect the clothing of his victim and even if he were to, there is no certainty that the Wilsons are completely accurate in their recollection some years after the conversation. However, we are quite sure that any jury would be unimpressed by the suggestion that the description allegedly given of the clothing could provide reassurance for doubts that they might otherwise entertain.

54. At the end of the day, the Court is quite sure that if the jury had heard the evidence which we heard from Professor Vanezis, it would have given the jury an additional cause for concern about the matter over and above the other matters to which the judge referred in his summing up. Nor do we believe that the judge's summing up would have been as it was if he had heard this evidence. Mr Barnes suggests the effect of the summing up on the pathological evidence was essentially that this aspect of the case was neutral, and we agree with this assessment. If the Court has been told that the Crown's own pathologist thought death on Saturday was "extremely unlikely", it is difficult to see how the judge could have thought it right to present this particular point as neutral and not favouring the defence. Having regard to the rest of the summing up, it seems likely that he would significantly have altered what he said.

55. What effect all this would have had on the jury, we are wholly unable to say. They would still inevitably have had to consider what the Crown said about the likelihood of falsification by the Wilsons and Mrs Martin, but they would have had to weigh this additional factor in the scales against these contentions. We find it impossible to say whether the outcome would have been the same or not, and applying the test as emphasised by the House of Lords in Pendleton [2002] 1 WLR 72, we cannot view the resulting conviction as safe when this important professional judgment of the Crown's pathologist was never available to the jury.

56. For these reasons, this ground of appeal must succeed. It is unnecessary for us, therefore, to consider the other matters Mr Barnes would have raised if he had not succeeded on this first aspect of the case. So long after the events, the prosecution do not seek a re-trial. We therefore allow this appeal and quash the conviction.