R v Gilfoyle
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R v Gilfoyle
CRIMINAL; Criminal Evidence
COURT OF APPEAL, CRIMINAL DIVISION
BELDAM LJ, SCOTT BAKER AND HIDDEN JJ
11, 12, 14 SEPTEMBER, 2, 3, 20 OCTOBER 1995
Criminal law – Appeal – Fresh evidence – Circumstances in which evidence will be admitted – Evidence available but not called by defendant at trial – Whether Court of Appeal able to admit fresh evidence on appeal against conviction – Other Crown evidence considered at trial to be hearsay and ruled inadmissible – Whether Court of Appeal having discretion to review decision on admissibility and admit evidence on appeal – Test to be applied – Criminal Appeal Act 1968, s 23(1).
The appellant’s wife, P, was found dead in what appeared to be a case of suicide, since the appellant produced a suicide note in which P had expressed an intention to take her own life. However, three days later, a friend of P made a statement to the police concerning an earlier conversation between them, in which P had told her that the appellant, an auxiliary nurse, was doing a suicide project at work and had asked her for help in writing examples of suicide notes. Two other friends made statements relating to similar conversations with P. At the appellant’s trial for P’s murder those statements were declared hearsay and thus inadmissible. The appellant was nevertheless convicted of his wife’s murder. On appeal he contended that the conviction was unsafe and unsatisfactory because the jury had been asked to speculate when the evidence provided no basis for sure inference, and applied to the court to receive fresh evidence which, if believed, would increase the lurking doubt about the safety of his conviction. The Crown objected to the evidence on the grounds that it had been available to the defence at the trial and there was no reasonable explanation for the failure to adduce it at that time. Since the appellant had stressed the inadequacy of the evidence, the court invited argument whether it was open to the court to receive the statements of P’s friends pursuant to its discretion under s 23(1)a of the Criminal Appeal Act 1968.
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a Section 23, so far as material, provides: ‘… the Court of Appeal may, if they think it necessary or expedient in the interests of justice— (a) order the production of any document, exhibit or other thing … (b) order any witness … to attend for examination … and (c) … receive the evidence … of any witness.’
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Held – (1) The Court of Appeal had power under s 23(1) of the 1968 Act not only to review, of its own initiative, a decision on the admissibility of evidence made at trial and to receive that evidence on appeal, but had a wider discretion to order any witness to attend for examination and to be examined before the court, whether or not he had testified at the trial, if it thought it necessary or expedient in the interests of justice. The interests of justice were not simply confined to receiving evidence which would result in an appeal being allowed, particularly when the court was being asked to review as unsafe and unsatisfactory the verdict of the jury, after an impeccable summing up, on the ground that there was a lurking doubt. It followed that where, as in the instant case, the court was asked to consider fresh evidence which the appellant contended reinforced such a 883 doubt, the court could receive admissible evidence which tended to dispel that doubt (see p 895 d, p 898 g to j and p 899 a, post).
(2) The statements attributed to P by her three friends were relevant to her state of mind when she wrote the suicide notes and so admissible to refute the inference which might otherwise be drawn from them; the fact that they were made could therefore be proved to show that, when she wrote the notes, P was not of a suicidal frame of mind. However, the fresh evidence sought to be adduced by the appellant would not have been likely to have affected the jury’s verdict, and was not of such weight that the verdict should be regarded as unsafe and unsatisfactory. It was not therefore necessary or expedient in the interests of justice for the court to exercise its discretion under s 23 to require P’s three friends to attend to give evidence. The appeal would accordingly be dismissed (see p 901 b c h to p 902 a, post).
Notes
For evidence on appeal, see 11(2) Halsbury’s Laws (4th edn reissue) para 1380.
For the Criminal Appeal Act 1968, s 23, see 12 Halsbury’s Statutes (4th edn) (1994 reissue) 412.
Cases referred to in judgment
R v Andrews [1987] 1 All ER 513, [1987] AC 281, [1987] 2 WLR 43, HL.
R v Blastland [1985] 2 All ER 1095, [1986] AC 41, [1985] 3 WLR 345, HL.
R v Cooper [1969] 1 All ER 32, [1969] 1 QB 267, [1968] 3 WLR 1225, CA.
R v Kearley [1992] 2 All ER 345, [1992] 2 AC 228, [1992] 2 WLR 656, HL.
R v Lattimore (1975) 62 Cr App R 53, CA.
R v Stafford, R v Luvaglio [1968] 3 All ER 752n, (1968) 53 Cr App R 1, CA.
Ratten v R [1971] 3 All ER 801, [1972] AC 378, [1971] 3 WLR 930, PC.
Stafford v DPP [1973] 3 All ER 762, [1974] AC 878, [1973] 3 WLR 719, HL.
Stirland v DPP [1944] 2 All ER 13, [1944] AC 315, HL.
Subramaniam v Public Prosecutor [1956] 1 WLR 965, PC.
Appeal against conviction
Norman Edward Gilfoyle appealed against his conviction in the Crown Court at Liverpool on 3 July 1993 before McCullough J and a jury of the murder of his wife, Paula Gilfoyle, on the grounds that his conviction was unsafe and unsatisfactory and applied to the court to submit fresh evidence which he alleged would increase the lurking doubt about the safety of his conviction. The facts are set out in the judgment of the court.
Michael Mansfield QC and James Gregory (instructed by C J Malone, Todmorden) for the appellant.
Rodney Klevan QC and Brian Lewis (instructed by the Crown Prosecution Service, Merseyside) for the Crown.
Cur adv vult
20 October 1995. The following judgment of the court was delivered.
BELDAM LJ. In the Crown Court at Liverpool on 3 July 1993, after a trial lasting a month, the jury convicted the appellant, Norman Edward Gilfoyle, of the 884 murder of his wife, Paula. The appellant now appeals against his conviction, claiming that the verdict of the jury was unsafe and unsatisfactory.
The grounds of appeal originally settled by trial counsel were: (1) that the judge had wrongly rejected the defence submission of no case; and (2) that the conviction was unsafe and unsatisfactory. Counsel asserted that the jury had been asked to speculate when the evidence provided no basis for sure inference.
In November 1993, the appellant’s sister, Mrs Susan Caddick, submitted a file to the court criticising the way in which the case was investigated, the evidence given and the prosecution ‘theory’. In the course of 108 pages she expressed her conviction that the appellant has been the victim of a grave miscarriage of justice. Although we were not referred to her file in the appeal, we have had her criticisms in mind where they impinged on the issues argued before us.
Michael Mansfield QC presented the appeal. In addition to the original grounds, he asked the court to receive further evidence which, if believed, would increase the lurking doubt about the safety of the appellant’s conviction. The Crown objected to our hearing this evidence because it had been available to the defence at the trial and there was no reasonable explanation for the failure to adduce it. We decided to receive the evidence of some of the witnesses whose statements were tendered.
As the appellant had stressed the inadequacy of the evidence and the speculative nature of the Crown’s theory, we invited argument whether it was open to the court to receive other evidence available to the Crown but not called which, if true, could have helped to dispel the suggestion that the case against the appellant was mere speculation. We decided that we had the power to do so and that the evidence in question, which, after scant discussion at trial had been rejected as inadmissible, was relevant and admissible, but as the argument developed on the appeal as a whole, we did not find it necessary to receive it.
The facts
To explain the issues raised, we must relate the facts in some detail. The appellant, known as Eddie Gilfoyle, was 31 years old and had served in the army in the Royal Army Medical Corps. He left the army and in 1991 began work as an auxiliary nurse at the Murrayfield Hospital run by BUPA in the Wirral. His job was to sterilise and prepare surgical instruments to be used in operations. Paula Gilfoyle was the appellant’s second wife. They were married in June 1989. Paula had lived all her life in the Upton area of Merseyside and on leaving school was employed locally at the Champion spark plug factory in Upton. She was still employed there when she died. She also ran a catalogue mail-order business from her home.
The appellant and Paula set up home at 44 Sherlock Lane, Wallasey, but in June 1991 they decided to buy 6 Grafton Drive, Upton, a house which needed considerable renovation before they could live there together; so they moved in with Paula’s parents. In the autumn of 1991 the appellant started to live in 6 Grafton Drive on his own so that he could spend more time working on the house. Paula remained at her parents’ home and from time to time the appellant returned there to stay with her. Towards the end of October Paula became pregnant. Her pregnancy was confirmed on 11 November 1991 by her GP, who estimated that the date of her confinement would be 18 or 19 June 1992. She was referred to the care of Mr Alderman, a consultant gynaecologist.
885
Earlier that summer the appellant had started an amorous liaison with Sandra Davies, who also worked at Murrayfield Hospital. He told her he was separated from his wife, and in due course invited her to move into 6 Grafton Drive with him. Paula’s pregnancy, however, put his plans in jeopardy, for he felt constrained to tell Sandra Davies, who, by this time, had informed her husband that she was leaving him for the appellant. Sandra Davies had believed the appellant when he had told her that he no longer loved his wife and that they were to be divorced. She felt betrayed and broke off the relationship. At about this time the appellant told Paula of his affair with Sandra Davies, giving her to believe that it was not a physical attachment. He also told her that Sandra Davies was going to move into their new home and, on hearing this, Paula forthwith moved into 6 Grafton Drive and telephoned Sandra Davies warning her to have no further contact with the appellant. The appellant, however, continued to try to resume his relationship with Sandra Davies. He sent her a valentine card in February 1992, but she rebuffed his advances. Then in April 1992 he produced to her a letter which, he said, had been written by Paula to him stating that he was not the father of the child she was bearing and that she had been having an affair for some 14 months with a man called Nigel. Though this letter was undoubtedly written by Paula, there was much in it which could be shown to be untrue. Paula had been seen with no one, nor were any of her close friends aware of such a relationship. After her death the name Nigel and a telephone number were found in her address book, but it turned out to refer to Nigel Stonehouse, whose fiancee was Paula’s friend since school days and a catalogue customer who had given Paula his number so that she could let her know when goods she had ordered had arrived. His name seems to have been selected at random to be cast in the role of fictional father. The true father of Paula’s child was proved unquestionably to be the appellant, as he well knew and had accepted throughout the pregnancy.
This letter, dubbed at the trial ‘the Nigel letter’, was the forerunner of three notes also written by Paula in which she expressed an intention to take her own life. The notes, however, were irreconcilable with all outward appearances of Paula’s demeanour and behaviour: she appeared exuberant, happy and looking forward to the birth of her child, making plans for the future. She shared her obvious happiness with family and friends, showing them the clothes she had bought for the baby when it arrived. She attended all her ante-natal appointments except the last one before the expected date of her confinement. It was arranged for the early afternoon of 4 June 1992. She did not keep that appointment. At about 7.30 pm that evening she was found hanging from a beam in the garage at 6 Grafton Drive. The appellant produced one of the notes in which she had expressed an intention to take her own life. It was assumed that it was a case of suicide.
The coroner’s officer attended and, noticing no obvious suspicious circumstances, arranged for the body to be cut down. The police surgeon, Dr Robins, arrived and for his records took three photographs of the body as it lay on the floor of the garage. The photographs show that Paula was casually dressed in jeans and a football shirt, and that a ligature around her neck was so tight as to be invisible. Paula’s body was taken to the local hospital where a post mortem confirmed that the cause of death was strangulation by hanging. To outward appearances it was a case of suicide but, as later was accepted on all sides, a most unlikely suicide, for Paula had taken not only her own life but that of the child she was expecting in two weeks’ time.
886
Two days later events occurred which cast an entirely different complexion on Paula’s death, suggesting that the suicide had been counterfeited by the appellant. A more detailed investigation into the circumstances was put in train which eventually led to his conviction for murder.
On the morning of Friday, 5 June 1992 Mrs Diane Mallion, a friend of Paula’s, went with her husband David, a close friend of the appellant, to seek the advice of a solicitor. Mrs Mallion had heard that Paula had committed suicide. She found it incredible and, recalling a conversation she had had at work with Paula about two months previously, she was seeking advice as to what she should do. She was advised to go to the police. That evening she contacted Det Sgt Lancaster Smith, who eventually went to see her on Saturday. In the result, Mrs Mallion made a statement on Monday, 8 June, which contained the following passage:
‘I think it was about April 1992 when I was in work and went to speak to Paula. Her pregnancy was showing by now and I passed a remark to this effect. She seemed quite normal but then said to me that she was “… a bit worried, Eddie’s frightening me”. I asked her what she meant. Paula then told me that Eddie was doing a suicide course at work and he needed to speak to someone who was contemplating suicide and the different ways they would do it and as to how they would feel at the time. Paula then continued by telling me that Eddie had said to her that they would have to leave notes. She continued by telling me that Eddie had asked of her what she would put in a note. She said that she wouldn’t know what to put down. She told me that Eddie said that he would tell her what to put down and he went and got pen and paper. She stated that he said she would have to leave one for him and one for her mother and father and she asked him what would she write and Eddie told her what to write and repeated to me what he had told her, the following, “that she had been having an affair, seeing somebody else and that the baby was not his and that she can’t live with the guilt any longer”. She continued by saying that Eddie told her that she would have to write a similar one to her mum and dad and the same sort of thing repeating, “that she’d been seeing somebody else, that the baby wasn’t Eddie’s and that she was too frightened to tell them and she couldn’t live with it any longer”. She told me that she actually wrote these letters, put them in envelopes and addressed them to Eddie and her Mum and Dad. Paula was beginning to sound a bit concerned and even I was starting to think it didn’t sound right. Paula continued by telling me that Eddie actually took her into the garage immediately after she wrote the letters. He then showed her how to put a rope up and how she would go about doing it. She asked me if it wasn’t strange and I just presumed it was all innocent telling her so but that I would ask Dave when I got home if he was doing a suicide course. It was left at that until I got home from work when I asked Dave if he knew of Eddie being on a suicide course and he said that he did and ”he was doing one or so he told me”. Dave asked me why and I told him that Paula had mentioned it to me in work and she looked a bit frightened. I then repeated it all to Dave, about the letters, the rope and the garage. Dave just repeated the fact that he was on a course and I just said that I would tell Paula. The next day I told Paula that Eddie had told Dave that he was on a 887 suicide course. She said something like “that’s a relief” and the subject was never mentioned again.’
Another of Paula’s close friends at work was Mrs Julie Poole. She was married, living with her husband and daughter. She had worked with Paula Gilfoyle for many years. She too was so disturbed by the report of Paula’s suicide that at about 11.45 am on Sunday, 7 June she went to the police station at Moreton. The following day she made a statement which contained this passage:
‘A couple of months ago, I believe it would be in April 1992, Paula and I had a conversation in the canteen in work. Paula was sitting opposite me and Christine Nevit (Jackson) was sitting alongside me. Paula said, “I got a bit worried last night. Eddie had me writing suicide notes out”. He said it was for a project in work. He asked her who would she write suicide notes to and she had told him she would write one to her mum and dad, one to Eddie and one to Julie, which is me. She said that she had written suicide letters for Eddie but she didn’t say who to or what was in them.’
Christine Jackson confirmed this conversation in a statement made the same day. She had known Paula for ten years and, as the relationship grew, she and her husband and Paula and the appellant visited each others houses socially on many occasions. Her account of the conversation was as follows:
‘About four weeks ago during the early part of May 1992, from what I can remember, we were again on a six till two shift, in the mornings, we were on one of our breaks in the Works canteen, there was Paula, myself and Mrs Poole, we were sat at a table having a normal conversation when Paula said, “You’ll never guess what I had to do last night”, we both asked her and she said, “A suicide note”. I said to her that it was odd and she went on to explain that it was a project Eddie was doing at work, someone else spoke to her and the subject was then changed …’
These statements show not only that the confession of infidelity and feelings of guilt in the notes were no true reflection of Paula’s state of mind, but also prompt the question: what was the appellant’s purpose in getting his wife to write them? The significance of the statements is obvious in common sense; but to a lawyer their value is questionable as no more than mere hearsay and on this ground the jury in the present case were kept in ignorance of them. We shall return later to consider whether, in the circumstances of this case, the jury could properly have heard at least of some part of them. We mention them here lest public credence of the appellant’s insistence that he is the victim of a miscarriage of justice based upon an insupportable and far-fetched theory conjured up by the Crown, gains unmerited support.
As a result of these statements the nature of the inquiry changed completely. A fresh post mortem was carried out, many witnesses were interviewed and facts emerged which showed that the suspicions harboured by Paula’s three workmates were not unfounded. Whether these facts showed more than suspicion and were sufficient to prove the guilt of the appellant beyond reasonable doubt was the issue for the jury at the trial.
The appellant had been interviewed many times by the investigating police officers and had persistently protested his innocence, though he did not take advantage of the opportunity to confirm to the jury on oath the answers he had given in interview, relying instead on a submission to the judge and later to the 888 jury that the evidence adduced by the prosecution had failed to eliminate the clear inference from the notes that Paula Gilfoyle had taken her own life and that of her unborn child.
To the earlier grounds of appeal the appellant’s counsel, Mr Mansfield, added his application to call fresh evidence. The principal witnesses whose evidence he asked the court to receive had all been available to give evidence at the trial, but he contended they had not done so due to misjudgment by the appellant’s counsel or incompetence by his solicitor.
To understand the submissions made for the appellant, we must return to the facts in more detail. The amazement expressed by Paula’s three workmates was shared by nearly 20 witnesses who knew or were related to Paula. Without exception they described her as happy, bubbly and looking forward to the birth of her baby, making plans for the future. On two occasions only during her pregnancy did her mood falter. The first was in October 1991 when, at the same time as she told her husband her good news, he told her that he loved someone else. Her feelings on learning of the appellant’s affair were set down in a letter which, although it referred to the baby coming ‘when I am at lowest ever in my life’, shows not only that she was prepared to face the future without him if necessary but also her overriding concern that no stress or anxiety on her part should harm her child. The second occasion was when she wrote a note to the appellant later in her pregnancy when she was tired and felt she was poor company for him in the evenings and that it was leading to dissension. However, she remained at work and continued to run her substantial catalogue business successfully and as the birth of her child approached she was her normal vital and cheerful self. No hint of anxiety or depression was apparent and her relations, her friends and her doctor and consultant were at one in describing her as happy and looking forward eagerly to the birth of her baby.
Quite out of this character was the letter shown to Sandra Davies by the appellant early in April 1992. This was ‘the Nigel letter’ and in it Paula apparently confessed that the baby was Nigel’s and that she had been having an affair with him for 14 months. It contained the statement that the appellant had been tricked into thinking the baby was his by her giving him false dates. This was proved to be untrue by evidence that Paula and the appellant had together attended consultations with Mr Alderman, the consultant, who said that both of them had known from the beginning that the expected date was 18 June. The sentence ‘I would like you to try and pick up the pieces with Sandra as I know she really loves you, you deserve better than me’ seems quite incompatible with her attitude when told in October of the appellant’s affair. She also refers to leaving him by the weekend to start a new life with Nigel, which she made no attempt to do.
The further investigations revealed that there had been a different draft of this letter. In a book in which monthly expenditure was kept there were found impressions which, by the ESDA (Electrostatic Detection Apparatus) process, were able to be deciphered. This ‘draft’, which contains a number of similarities to ‘the Nigel letter’, not only refers to the affair with the father of her child having lasted for 16 months, but states that the father had ended it all between them and it indicates that she intended to take her own life rather than live without him.
Another ‘draft’ note addressed ‘To whom it may concern’ was found in a foot stool in the kitchen with a jotter. It said ‘I Paula Gilfoyle am ending this life. I have taken my own life and I am doing …’ Yet another suicide note in Paula’s writing was produced by the appellant on 4 June. He said he had found it in the 889 kitchen on his return home from work. In a postscript it contains a rather formal apology for causing pain and distress.
This was not insignificant, for there was evidence that about a fortnight earlier, on learning that the husband of a friend had committed suicide, Paula expressed great horror at such an action and deplored the pain and anguish it would cause to those left behind. A further statement in the letter was to prove inconsistent. It said: ‘Don’t be afraid to tell people the truth. They can’t hurt me because I am not there to face up to them all.’
Because it was accepted on 4 June that Paula had committed suicide, no body temperature was taken by Dr Roberts nor were photographs taken before her body was cut down. The time of death which, from the presence of rigor, had been roughly estimated at between three and eight hours before the body was found, could not be more precisely established at the second post mortem. Moreover, the noose which had surrounded the neck had been thrown away by a mortuary technician after the first post mortem. His recollection of the type of knot used to form the ligature produced the improbable suggestion that it was not a slip knot but a tight overhand knot. Much argument was based upon this recollection, which seemed at variance with the photographs taken by the police surgeon, Dr Roberts. These photographs show that the rope had been pulled so tightly round the neck that neither Paula herself nor someone trying to murder her could possibly have tied it so tightly. Dr Burns, the pathologist who carried out the second post mortem, concluded that Paula had died very suddenly for there were no petechial haemorrhages. He discovered two significant scratch marks on her neck near the ligature. In his opinion, these were marks made by Paula’s fingernails in a desperate attempt to relieve the pressure of the ligature around her neck. Dr Burns also measured Paula’s height and reach.
To try to discover when Paula had died, witnesses were interviewed to establish both her and the appellant’s movements on 4 June. As Paula did not attend her last ante-natal appointment at about 2 pm and then go on, as she had arranged to do, to see her sister, Susan Dubost, who worked nearby in an estate agents’ office, it was inferred that she must have died before 2 pm. A caller at the house, Mrs Melarangi, who used to deliver parcels ordered by Paula for her catalogue customers, got no reply at 11.50 am. The last person other than the appellant to see Paula alive was Mrs Brannan, a market researcher who visited the house at about 11 am to carry out a market research survey. She spoke to both the appellant and Paula. She stood in the hall because it was raining outside. She remembered noticing that Paula was pregnant and that she appeared perfectly normal.
The appellant’s shift at work began at 12.30 pm. He said in interview that he normally liked to be at work by 11.50 am so he could have a cup of coffee and read the newspaper in the canteen. On the morning of 4 June Paula had gone out, saying she was going to do ‘bits and bobs’ in Upton, but she had returned just as he was leaving because it had started to rain. He then left for work at 11.25 am or thereabouts, and would have arrived at work at about 11.30 am. Sandra Davies said that she saw him at the hospital at about that time.
Thus, the Crown’s case was that Paula had died between Mrs Brannan leaving after 11 am and Mrs Melarangi calling at 11.50 am and getting no reply. The appellant left work early at some time between 4.10 pm and 4.30 pm. He said that he arrived home at about 4.30 pm and on entering the kitchen found the suicide note. He made no effort to search the house or garage at that time but 890 was so worried that he went straight to the address of his mother and father, hoping that his father would tell him what he should do. According to him he must have arrived there at about 4.45 pm. He waited for his father to return at about 6 pm. Eventually the appellant’s brother-in-law, Paul Caddick, a sergeant in the Merseyside Constabulary, was summoned. He, the appellant and his parents then returned to 6 Grafton Drive where Sgt Caddick searched the house to see if Paula was upstairs. He then went to the garage. It was locked, so he returned to the house and asked the appellant for the keys. The appellant gave him Paula’s keys, but when Sgt Caddick tried to open the garage door there was no key that fitted. This was surprising, for normally she had a garage key on her keyring. After a short search the appellant went to the front door mat and, lifting it, produced two garage keys, one of which he gave to Sgt Caddick, who returned to the garage and discovered Paula’s body hanging from a beam with a short aluminium step-ladder just behind her.
By this time Pc Tosney had arrived and with Sgt Caddick he went to the garage and noticed that the body was hanging with the legs bent at the knee, at bit more than a right angle and crossed at mid-shin with the right foot on top of the left, the soles pointing up and the left foot on the bottom rung of the ladder. He realised that had the knees not been bent the feet would have touched the floor and that struck him as ‘odd in that she could have stood up’.
He later estimated that the knees were only 15 inches from the floor. Neither he nor Dr Roberts noticed any marks on the body or anything suspicious. Det Con Jones, the coroner’s officer, was summoned, and he decided to cut down the body before the arrival of the CID. The cord was cut about two feet above the knot and the body laid on the floor. He noticed that the other end of the cord was wrapped round the beam more than once, though he did not pay special attention. Standing on the ladder he could barely reach it. Subsequently it appeared that it had been passed two or three times round the beam and knotted at the side.
When the defendant was told that his wife was dead he became very upset and cried, but he told a doctor who was called to comfort him that the baby his wife was carrying was not his and that the father was a man called Nigel, but ‘he had agreed to bring the child up as his own child’.
Subsequent experiments showed that it was most unlikely that, using the aluminium step-ladder in the garage, Paula could have tied the rope around the beam. Her reach would not have enabled her to do it, and in her advanced stage of pregnancy she would have been unstable standing on the top of the ladder. There were other wooden step-ladders, but in a different part of the house, and to use them she would have had to carry them (they were heavy) into the garage and, after tying the rope over the beam, replace them in the store where they were usually kept. Then there was the riddle of the key. If there was no key on her keyring, how did she get into the garage? Why should she take the key off her ring and place it under the mat before returning to the garage, closing the door behind her and then committing suicide? The Crown suggested that the likely explanation was that it was the appellant who, having prepared the noose in the garage, removed the key from her ring in case she should see it and possibly be alarmed when he was not there to reassure her.
Later inquiries showed that the appellant’s account of his movements after leaving work was false. Mrs Melarangi had that day received a further parcel to be delivered to Paula. Accordingly, she returned to 6 Grafton Drive at about 5.30 891pm. When she got there she said that the appellant was on the drive outside the house and that she got him to sign for the parcel. She produced the manifest for that particular day which clearly showed a signature in the name of ‘P. Gilfoyle’. She asked the appellant if he had any returns and he said, ‘No’, whereas normally he used to check with Paula. Though cross-examined to suggest that she was mistaken about the date and the time, she was firm in her evidence. In any event, in interview the appellant had denied categorically that there had been any such visit. It was further suggested to her that she had signed the manifest herself.
A handwriting expert, Dr Hardcastle, was asked to give his opinion of whether the appellant had written the signature but it was inconclusive. Mrs Melarangi’s recollection was materially supported by the manifest which was dated 4 June and by evidence that the further parcel was not delivered to her house until 1 pm. Mrs Melarangi was not alone in having seen the appellant at 6 Grafton Drive when he claimed to have been at his parents’ house. Mrs Jones, a neighbour who lived at No 2, said that she saw him from her front bedroom window at about 5.30 pm by his car, which was parked outside his house facing Ford Road and that he drove off quite noisily. A further witness who undermined the appellant’s account was Mr Owen, who saw the appellant entering a shop in Arrow Park Road 10 or 15 minutes after he had obtained cash from a cash machine, reliably timed by the machine at 5.37 pm.
Two witnesses were interviewed who confirmed that on separate occasions the appellant had made statements suggesting that he was on a course which required him to study or consider suicide. To one, Mrs Coltman, he said he was going to be trained on a crash team and that the crash team was trained to go and see people who had attempted suicide. To the other, David Mallion, he said he was on a course at work and one of the questions was what do you say to someone who has committed suicide to which Mallion said, ‘There’s not a lot you can say’, and it was laughed off as a joke. In fact he later interpreted this as counselling people and although he was rigorously cross-examined when he gave evidence, he was left with the clear impression that the defendant had said he was on a course and in some respect it had to do with suicide.
The Crown relied upon this evidence to suggest that the appellant may equally have said something similar to Paula and persuaded her to help him with the course by writing the suicide notes. This the defence ridiculed as pure speculation and an invitation to the jury to guess.
Further inquiries brought to light seven witnesses, who, in April and May 1992, were told by the appellant either that his wife had left him or that she was going to live with someone else and that his marriage was in a mess. To some he said that the child she was expecting was not his.
These statements the Crown contrasted with the fact that he and Paula were living together at 6 Grafton Drive, that he knew perfectly well the child was his and gave no outward signs of any resentment.
On Friday, 12 June, when it had become apparent that Paula had not been having an affair with ‘Nigel’ and when his brother-in-law, Sgt Caddick, had persuaded him to betray a solemn promise made to Paula never to tell anyone, the appellant went to the police to disclose to them that two days before her death Paula had told him that her brother-in-law, Peter Glover, who had been best man at their wedding, was the father of her child. He suggested that the reason Paula had committed suicide was because she could not live with the shame and the family disruption the revelation would cause. He had agreed to 892 accept the child as his own and made arrangements for them to leave the area together and to go to the south of England.
That Peter Glover was not the father of Paula’s child was established conclusively by DNA testing and by Peter Glover’s evidence. Why, the Crown asked rhetorically, should Paula have lied to the appellant in a way which could have been so hurtful to her own sister? The Crown suggested that this was a fabrication intended to replace the fiction of Nigel. No doubt the Crown were content for this evidence to be received by the jury for they could prove it was untrue, but it was no less hearsay of what Paula had said before her death than the statements made to her workmates concerning the suicide letters, which were excluded.
The jurors must surely have asked themselves why the appellant was willing to put forward this second explanation in interview but not to substantiate it on oath.
During the investigation a reconstruction was held of the movements necessary to enable a person of similar height and reach to Paula to secure a rope over the beam from which she was found hanging. A policewoman who was similarly pregnant was asked to carry out the task. She succeeded eventually, and with difficulty, in passing the rope over the beam, but only once. Standing on the top step of the ladder she was unsteady and unbalanced and found it necessary to hold on to a nearby shelf with one hand. She was asked to tie a knot, tried, but could not. She came down with assistance and felt extremely shaky.
On 23 June a more extensive search of the garage was undertaken and from a drawer at the back a police officer recovered a length of rope with a running noose in it. A second set of impressions was observed on the beam, suggesting that the rope may have been tied over the beam on an earlier occasion.
Dr Burns, the pathologist, gave evidence that he was satisfied that Paula had died from hanging and the indications were of a very rapid death. He said that if a victim had allowed someone to put a noose around her neck, an easy and extremely quick way to kill her would be to stand behind her and suddenly pull her legs from underneath. He thought it significant that the feet could touch the ground because most victims he came across had their feet well above the ground. A person trying to commit suicide does not want it to be unsuccessful, but he did say that in many suicides feet are found on the ground and people have committed suicide either sitting or kneeling or even lying down. However, had Paula jumped from the step-ladder, she would have landed on her feet, and having regard to the length of the rope and the height of the noose above the ground, the rope would not have taken her body weight unless, after reaching the ground, she had fallen forward. But then he would not have expected her feet to have been found in a position resting on the bottom step of the ladder. He regarded the two scratches on the neck as striking. They were almost certainly fingernail marks, and almost as certainly caused by Paula. They could be attempts to free the rope because she was an unwilling victim, but possibly might have been caused by an involuntary movement of her hand to her neck when the rope tightened as she committed suicide. That, he said, would be very uncommon. In 12 years he had seen about 120 cases of suicide by hanging and in no case had there been a scratch mark on the neck.
After the evidence for the Crown was completed, David Turner QC, representing the appellant, submitted that the appellant had no case to answer, that the Crown had failed to show that Paula had not taken her own life and that 893 the Crown were asking the jury to speculate and guess about the manner in which the suicide notes had come into existence. McCullough J ruled that there was evidence on which the jury could find the defendant guilty. No evidence was called by the appellant and in his closing submissions, counsel for the defence repeatedly stressed the significance of the suicide notes and exhorted the jury to reject as mere guesswork and speculation the Crown’s suggestion that they could have been written by Paula at the appellant’s request to assist him with his ‘suicide course’.
The jury considered the evidence for nearly 15 hours before unanimously finding the appellant guilty.
The appeal
Opening the appeal, Mr Mansfield said this was plainly a case in which, at the lowest, the court must have a lurking doubt that the verdict of the jury was unsafe. He asked the court to receive ‘fresh’ evidence. In outline this fresh evidence went to three issues.
(1) The evidence of Mrs Maureen Piper. On hearing of Paula’s death, Mrs Piper stated that she had seen Paula in the post office at Moreton at about 12.40 pm on the day of her death. Although the defence were aware of the witness and the general terms of her evidence, the circumstances in which it had been decided that she should not be called were such that the court could properly receive the evidence and, if it did so, it must conclude that the Crown’s theory about the time of death was untenable.
(2) The evidence of Professor Bernard Knight, a forensic pathologist. Professor Knight had given an opinion to the defence prior to the trial, and attended the trial for one day, but was unable to be present when Dr Burns gave evidence. It was said that leading counsel committed a grave error of judgment in not calling Professor Knight, who could have given important evidence concerning the two scratch marks and the possibility of their being present in cases of suicide.
(3) Expert handwriting evidence of Dr Robert Hardcastle. Although he had been asked at the trial to express an opinion on the signature obtained by Mrs Melarangi, she said, from the appellant at 5.30 pm on 4 June, Dr Hardcastle, because of the small amount of the appellant’s writing he was asked to compare with the signature, could not say conclusively that the appellant had not signed the manifest. Since the trial Dr Hardcastle had been asked to look at further specimens of handwriting and had expressed the opinion that it was more likely that Mrs Melarangi had made the entry than the appellant, but the evidence was still inconclusive.
The court assumed that Mr Mansfield, in referring to ‘a lurking doubt’, was inviting us to take the approach taken in R v Cooper [1969] 1 All ER 32, [1969] 1 QB 267. In that case, evidence not normally admitted had been given at the trial that a person had confessed to a friend of the appellant that he was responsible for the offence of which Cooper had been convicted. In giving the judgment of the court, Lord Widgery CJ said ([1969] 1 All ER 32 at 34, [1969] 1 QB 267 at 271):
‘… and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether894 there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.’
We had no transcript of counsel’s argument when, in discussion with McCullough J, the Crown in this case accepted his suggestion that the statements made by Paula to her three workmates concerning the suicide notes were hearsay and inadmissible. During the defence submission of no case, the judge is recorded as having said that he thought the jury could work the matter out for themselves. It appeared to us that there could be more than one ground on which such statements might have been held to be relevant and ruled to be admissible. As the court was being asked to overturn the verdict of the jury after a punctilious and fair direction by the judge and to say that, as a matter of impression, there was a lurking doubt, the court desired to hear argument whether, in the exercise of its discretion under s 23(1) of the Criminal Appeal Act 1968, it could, of its own initiative, review the decision at trial that the evidence was inadmissible and whether, if it concluded that the evidence was relevant and admissible, it could receive the evidence on the appeal.
Having heard argument we concluded that we did have a discretion to receive such evidence and that the evidence was relevant to an issue in the case and was admissible. We stated we would give our reasons in our judgment, reserving a decision whether to exercise our discretion to receive the evidence until we had heard full argument on the issues in the appeal. In the event, as we later explain, we decided it was not necessary to hear the witnesses.
The Crown’s objection to our hearing the evidence of the appellant’s witnesses was that there was no reasonable explanation for the failure to adduce the evidence at the trial, and that if received it would not afford any ground for allowing the appeal.
We decided that the court should receive the evidence of Mrs Maureen Piper but rejected the application that we should hear evidence from Professor Knight and from Dr Hardcastle. We shall deal first with this application.
Mr Mansfield said that the explanation for the failure to adduce the evidence of Professor Knight and Dr Hardcastle was a gross misjudgment by counsel for the appellant and that this could be regarded as within s 23(2)(b) of the 1968 Act and as a reasonable explanation for the failure to adduce the evidence at trial. Professor Knight had advised the defence, and Dr Hardcastle gave evidence. In accordance with usual practice, a statement had been obtained from Mr Turner asking for his comments on the criticisms of his conduct of the defence. Mr Turner explained in some detail the reasons for the decision not to call Professor Knight. In summary, his evidence concerning the cause and significance of the scratch marks to Paula’s neck would not have differed significantly from that of Dr Burns who, in cross-examination, had conceded that it was possible that the marks could have been caused by a reflex action of a person committing suicide. Accordingly, there was little point in calling him on that issue. Further, the Crown had originally been minded to adduce evidence, psychological and statistical, of the likelihood of suicide in women in the last stage of pregnancy, and Mr Turner had succeeded in arguing the Crown out of this course. He was, therefore, anxious not to afford an opportunity to the Crown to widen the issues in the case. Counsel states that in discussion Professor Knight agreed that his evidence would take the defence case ‘little further’. After discussion with the 895 appellant, Mr Turner took the decision, which it is the responsibility of every advocate to take, not to call Professor Knight. We are quite satisfied that this was a reasoned decision well within the scope of the careful exercise of discretion of an advocate. Any more robust opinion since expressed by Professor Knight was likely to be regarded as a second thought not based on any additional information. In our view it would not, in the circumstances, afford a ground for allowing the appeal. We consider there was no error of judgment which operated to the prejudice of the appellant and which would permit the court to receive Professor Knight’s further opinion.
We were equally satisfied that we ought not to receive the further evidence of Dr Hardcastle, the forensic document examiner. In a statement taken on 29 March 1994 he refers to further specimens of handwriting he has been asked to compare with the signature on the manifest produced by Mrs Melarangi. He states:
‘The only assistance I can offer is to say that it is very unlikely that Paula Gilfoyle wrote it and that between Eddie Gilfoyle and Maureen Melarangi it is more likely that Melarangi was the writer.’
He goes on to state that the evidence regarding Mrs Melarangi’s handwriting is inconclusive and that it is not possible to express a reliable opinion as to whether or not she wrote it.
Mrs Melarangi stated in her evidence categorically that she did not write it, but that she had met the appellant face to face on the path and he had signed in her presence. He gave no evidence to contradict this, and we consider that the inconclusive opinion expressed by Dr Hardcastle would be no ground for rejecting Mrs Melarangi’s direct evidence. Further, it is to be noted that his opinion differs little from the opinion he expressed at the trial, which was before the jury. Accordingly, we declined to receive his evidence.
Mrs Maureen Piper was not called to give evidence because Mr Turner was told by Mr Font, the legal executive responsible for preparing the appellant’s case, that the witness had changed her recollection and was no longer sure of the day on which she had seen Paula in the post office at Moreton. Mr Mansfield submitted that in fact Mrs Piper had never said that and that counsel were misinformed due to gross neglect of duty by Mr Font, who had failed to interview the witness, simply relating his impression gained from a telephone conversation.
Mrs Piper knew Paula and her sister Sue Dubost well. She worked at Cadburys in Moreton and she heard about Paula’s death from a friend, Maureen Brennan, on a Friday. When told, she was shocked, and said: ‘I only just spoke to her yesterday. I’d seen her at the post office. I’d seen her about twenty or a quarter to one.’ Mrs Piper’s visit to the post office was a regular Thursday event, for she collected her mother’s pension there. Moreover, as she went from work, her visits were almost always at the same time. She said that as she was standing in the queue waiting to be served, she saw Paula in a queue next but one to her near the front and ‘We both said Hi’. She described Paula as being dressed in floral dungarees. Paula did indeed have such an outfit and wore it from time to time. In the course of the police inquiries they discovered that Sue Dubost, Paula’s sister, had in fact been in the post office on 4 June at 12.40 pm, and it seemed that the likely explanation was that Mrs Piper had become confused between the two sisters.
896
According to Mrs Piper, one of the police officers concerned in the investigation told her that she must be mistaken and that they were ‘scrubbing’ her statement.
So a copy of her statement was given to the defence as part of the unused material obtained by the police in the course of their investigation and Mr Font tried to follow up this lead, though he undoubtedly left it late. We heard evidence from Mr Font and are satisfied that he made a call at the house when Mrs Piper was not in and left his card asking her to telephone him, which she did. There is no doubt she was not anxious to give evidence and we are satisfied that Mr Font obtained the impression that she was reluctant to come forward. In giving her evidence she told us: ‘I probably said I was confused over the phone and words to the effect that the police scrubbed my statement so that must be it.’
But she was clear in her evidence that she had been convinced at the time that she had seen Paula the day before she was told of her death; however, she did at one point in her evidence say: ‘I know I definitely see her but it didn’t seem like a week.’ When cross-examined by Rodney Klevan QC she said: ‘I’m pretty sure it was the day before but I’m not absolutely certain it was the day before her death. It felt like a short time.’
As we have indicated, we also heard evidence from Mr Font and from Mrs Marilyn Brennan as to what Mrs Piper had said to her, the Crown agreeing that we should receive this evidence. However, Mrs Brennan could not assist because her account of Mrs Piper’s statement to her was: ‘I was talking to her in the post office and she was quite shocked.’ And Mrs Brennan added: ‘I can’t remember when she said it was.’
We consider that the reason that Mrs Piper was not called as a witness was a misunderstanding by Mr Font that Mrs Piper accepted that she was mistaken when, in fact, she was not convinced that she was. There was further confusion as to whether she was mistaken in thinking that the person she had seen in the post office was Paula or whether she had mistaken the occasion.
Mr Font ought to have followed up so potentially important a witness with a personal visit and should have made absolutely sure that counsel were fully informed of her evidence and any criticisms which might be made of it. Consequently we decided to hear the evidence of Mrs Piper. We also heard evidence from Susan Dubost of her visit to the Moreton post office on Thursday, 4 June 1992. Mrs Piper’s evidence has to be judged against other evidence in the case for its reliability and weight. Was it likely that Paula would be in the post office wearing her floral dungaree outfit that day? Mrs Dubost told us that the previous Thursday Paula had been wearing her floral dungaree outfit, had been to the ante-natal clinic and afterwards to visit her in her office, both of which were close to the post office. Her floral dungarees would have been suitable for that occasion for it was a fine June Thursday but the following week, the day of her death, it was raining heavily most of the day and she would have been most unlikely to be wearing that outfit. If Mrs Piper’s evidence was right, Paula must have returned home and changed her clothes before embarking on taking her own life. Consequently we think that although the evidence of Mrs Piper is relevant and admissible, the weight to be attached to it has to be carefully evaluated. We shall return to our assessment when we consider the final submissions made by counsel.
We now give the reasons why we consider that the court has power of its own initiative to receive evidence, if relevant and admissible, and that at least part of 897 the evidence contained in the statements of Paula’s three friends at work as to what she said to them concerning the suicide notes was indeed relevant and admissible.
Does the court have power under s 23(1) of the 1968 Act to hear evidence on its own initiative?
Mr Mansfield laid great stress on the words of Lord Scarman in R v Lattimore (1975) 62 Cr App R 53 at 56, where he said:
‘Parliament by subsection (1) has placed upon the Court the power to do what it thinks necessary or expedient in the interests of justice: the burden of the power is heavy, but may not be off-loaded by treating the conditions specified in subsection (2) as decisive in the exercise of the discretion under subsection (1). Of course, it is common sense that the Court will not receive evidence under subsection (1) if satisfied that it “would not afford any ground for allowing the appeal”: for its reception would not be “necessary” in the interests of justice. It is also inconceivable that the Court would receive inadmissible evidence: for the Court must act according to law. But these curbs upon the discretion arise not from the fact that they happen to be mentioned in subsection (2), but from the terms of subsection (1) and in general law, including the law of evidence.’
Thus Mr Mansfield argued that the court could not receive any evidence which would not afford a ground for allowing the appeal.
If this interpretation of Lord Scarman’s observations were to be taken literally, it would mean that when an appellant tendered fresh evidence the Crown would be unable to call fresh evidence to refute it. If the passage from the judgment in Lattimore is set in context, however, it is clear that it is directed to the observations of Edmund Davies LJ in R v Stafford, R v Luvaglio[1968] 3 All ER 752n, (1968) 53 Cr App R 1 at 3, where he said:
‘… public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time will generally be admitted by this court when verdicts are being reviewed.’
In our judgment, the court has not only the power to receive admissible evidence which would afford a ground for allowing the appeal but has a wider discretion, if it thinks it necessary or expedient in the interests of justice, to order any witness to attend for examination and to be examined before the court, whether or not he testified at the trial. We are satisfied that the interests of justice are not simply confined to receiving evidence which would result in an appeal being allowed, particularly when the court is being asked to review as unsafe and unsatisfactory the verdict of a jury after an impeccable summing up on the ground that it has a lurking doubt. In Stirland v DPP [1944] 2 All ER 13 at 17, [1944] AC 315 at 324 Viscount Simon LC said: ‘… a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.’ In reviewing the jury’s decision a court, required to consider what is necessary or expedient in the interests of justice must, it seems to us, be able to review the evidence given at the trial as well as admissible evidence which could have been given. Take the case of an appeal based on an error of law leading to the wrongful admission of evidence. Could the court receive admissible evidence which has since come to light which would, beyond doubt, have proved the same point? Or 898 as here, where the court is being asked to consider ‘fresh’ evidence which it is said reinforces a lurking doubt, can the court receive admissible evidence which tends to dispel such doubt?
In our view, s 23 of the 1968 Act confers upon the court a discretion confined only by the requirement that the court must be satisfied that it is necessary or expedient in the interests of justice to require the evidence to be given.
Was the evidence of what Paula stated to her three friends at work the night after she wrote the suicide note relevant to an issue in the case and admissible?
The statements attributed to Paula by the three witnesses can be separated as follows: (1) that she had been asked to write the suicide note; (2) that this had worried or frightened her; (3) that Eddie had asked her to write the note; (4) that he had told her what to write; and (5) that after she had written the notes, he had taken her into the garage to show her how to put up the rope.
Paula’s state of mind was one of the principal issues in the case. The defence contended that the notes evidenced a suicidal frame of mind.
It was our preliminary view that the fact that the first three of these five statements were made was relevant to Paula’s state of mind when she wrote the notes and thus admissible to refute the inference which might otherwise be drawn from them. Our view was founded on the decision in Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970, where the Privy Council said:
‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.’
Strictly speaking, therefore, proof that the statements were made falls outside the category of hearsay evidence. But, in any event, hearsay evidence to prove the declarant’s ‘state of mind’ is an exception to the rule which has been accepted by the common law for many years. Where the intentions or state of mind of a person making the statement are relevant to a fact in issue, hearsay evidence is admissible. In R v Blastland [1985] 2 All ER 1095 at 1099, [1986] AC 41 at 54 Lord Bridge said:
‘It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person said or heard said may well be the best and most direct evidence of that person’s state of mind. This principle can only apply, however, when the state of mind evidenced by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial.’
In the present case, the statements made by Paula tended to prove that she was not depressed or worried to the point of suicide when she wrote the notes, but rather wrote them in the belief that to do so would be assisting the appellant in a course at work. On this basis the statements were not admissible to prove the 899 truth of the fact that the appellant had asked her to write them, or that he had told her what to write or what he had done after she had written the notes. If the statements could be regarded as accompanying the writing of the notes in the sense of having been made sufficiently soon after they were written, it might be argued that the statement that the appellant had asked her to write them could be admitted to prove that he had in fact done so.
In Ratten v R [1971] 3 All ER 801 at 807, [1972] AC 378 at 389 Lord Wilberforce drew attention to the difficulty of analysing an event which is accompanied by a statement. He said:
‘The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it.’
This principle was adopted in R v Andrews [1987] 1 All ER 513 at 520, [1987] AC 281 at 301, where Lord Ackner said:
‘In order for the statement to be sufficiently “spontaneous” it must be so closely associated with the event which has excited the statement that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event which provided the trigger mechanism for the statement was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.’
In this case the statements themselves suggested that the events which prompted them were still dominating Paula’s mind. The statements were made the morning after the letters had been written, as soon after as would ordinarily have been expected. The possibility of invention or unreliability could be discounted and there was little room for inaccuracy in the reporting of the statements.
During argument Mr Mansfield conceded that the fact that the statements were made could be proved in evidence to establish Paula’s state of mind when writing the notes, but he contended that any judge would have been justified in excluding them on the ground that their probative value was exceeded by the prejudice to the accused in being unable to test the statements.
However, as Dean Wigmore pointed out (Wigmore on Evidence (2nd edn, 1923), provided the court is satisfied that the circumstances in which the statement was made are themselves ‘a circumstantial guarantee of trustworthiness’, the lack of 900 an opportunity for cross-examination would be a superfluous consideration. By circumstantial guarantee of trustworthiness he meant that the statement was made in circumstances which rendered it most improbable that it was concocted or unreliable.
Accordingly, we were satisfied that if we considered it necessary in the interests of justice, the fact that the statements were made could be proved to show that when she wrote the notes Paula was not of a suicidal frame of mind, and that she wrote them in the belief that she was assisting the appellant in a course at work. That the appellant said he was on a course concerned with suicide was established by other witnesses. There was no evidence to suggest it was true. Having reached this conclusion, we did not consider it necessary to consider the further question of whether the statements were admissible to prove that the appellant had, in fact, asked Paula to write the notes and had suggested their contents.
At the time of our ruling and before hearing Mr Mansfield’s argument that there was a lurking doubt about the safety of the appellant’s conviction, we were unable to say whether it would be necessary or expedient in the interests of justice to require the three witnesses to attend to give evidence. Having heard argument, we reached the conclusion that it was not.
In his submissions Mr Mansfield did not argue the original ground of appeal that the facts proved by the Crown could not satisfy a jury so that they were sure that the appellant was guilty of murder. Instead, he relied only on an argument based on the effect of the fresh evidence that although the facts proved might have been just sufficient to found a safe verdict, the evidence of Mrs Piper, had it been before the jury, would have been likely to cast such doubt upon the time of Paula’s death that their verdict must be regarded as unsafe or unsatisfactory. Mr Mansfield drew attention to the statement made by the appellant in the course of one interview at a time when he had no knowledge that Mrs Piper would say that she had seen Paula in the post office on the morning of her death, that just before leaving for work he had said to Paula that he had to go to the post office to get some ‘ciggies and the paper’ and ‘She said she’d do the post office’. However, that appeared to be a reference to the post office in Upton and not to the post office in Moreton.
As Stafford v DPP makes clear, this court is primarily concerned with whether the verdict of the jury was safe and satisfactory. In deciding this question, the court can properly approach it by considering whether there might have been a reasonable doubt in the minds of the jury of the guilt of the appellant if they had heard the fresh evidence with the other evidence given at trial, but the question cannot be resolved without considering the weight which should be given to the fresh evidence.
We do not think the fact that Mrs Piper conceded that she might have been mistaken meant that her evidence was of little weight. Such a concession could as well be the hallmark of a candid and reliable witness as of a doubtful one. We do, however, think that the fact that she regularly went to the post office on a Thursday and could have seen Paula the week before wearing the clothes she described, whereas they were quite unsuitable for the morning of her death, does significantly detract from the weight to be given to her evidence. Further, we think it most unlikely that if Paula had been intending to commit suicide, she would have returned home and changed into the clothes she was wearing when she was found. In conjunction with the other circumstances upon which the Crown relied to show the time of Paula’s death, we do not consider that Mrs 901 Piper’s evidence would have been likely to have affected the jury’s verdict, nor are we persuaded that it was of such weight that the verdict should be regarded as unsafe and unsatisfactory. Accordingly, we dismiss the appeal.
In doing so we express the hope that the Law Commission’s consultation paper, The Law of Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Com No 138), will clarify the law and produce a law of evidence in criminal cases which has been, in the words of Lord Griffiths in his dissenting speech in R v Kearley [1992] 2 All ER 345 at 348, [1992] 2 AC 228 at 659—
‘developed along common sense lines readily comprehensible to the men and women who comprise the jury and bear the responsibility for the major decisions in criminal cases.’
Those men and women are surely entitled to a rational explanation why, when they are chosen to apply their common sense and experience in the assessment and appraisal of witnesses evidence, they should be regarded as lacking the ability to discern the difference between speculative rumour and spontaneous truth in statements made out of court.
Although, in our opinion, the making of the statements in the present case was relevant and admissible under the existing complex hearsay rules, the fact that dubbing them ‘hearsay’ sufficed to proscribe them from the jury’s judgment is hardly likely to enhance public esteem of the criminal process.
Appeal dismissed.
KUJUA STYLE TAMU ZA KUMKUNA MSICHANA AKAKUPENDA DAIMA ASIKUSALITI BONYEZA HAPA CHINI
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