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Cite as: [2002] EWCA Crim 84

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Ray, R v [2002] EWCA Crim 84 (23rd January, 2002)

		Neutral Citation Number: [2002] EWCA Crim 84
		Case No: 2000/2543/W2

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand,
London, WC2A 2LL

23rd January 2002

B e f o r e :

LORD JUSTICE MAY
THE HON MR JUSTICE GOLDRING
and
THE HON MR JUSTICE CRANE
____________________

Regina

- v -

Alan Ray

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

J T Milford QC for the Appellant
P D Batty QC for the Crown
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

Lord Justice May:

Introduction

Alan Ray is now aged 27. On the 29^th March 2000 he appeared in the Crown Court at Newcastle-upon-Tyne before Potts J and a jury when he was convicted of four counts of murder and one count of conspiracy to pervert the course of justice. On each of the murder counts, he was sentenced to concurrent terms of life imprisonment. On the count of conspiracy to pervert the course of justice, he was sentenced to 12 months imprisonment concurrent. An order was made under Section 25 of the Public Order Act 1986 for the forfeiture of a sword. There was a further count of conspiracy to pervert the course of justice which was left on the file, as were all counts of another indictment.

This is his appeal against conviction by leave of the Full Court, presided over by Kay LJ, on the 8^th May 2001. Henriques J had previously refused leave on the papers.

There were three other defendants charged with one or other of the counts of conspiracy to pervert the course of justice against whom the prosecution offered no evidence. Another co-defendant was Gary Cornish, who pleaded guilty to one of the counts of conspiracy to pervert the course of justice and was sentenced to 9 months detention in a Young Offender Institution. He pleaded not guilty to the four murder counts and to a count of conspiracy to commit arson with intent to endanger life. Verdicts of not guilty on those counts were entered in his case on the direction of the judge at the conclusion of the prosecution evidence.

Facts and evidence

In the early hours of Thursday the 14^th May 1998, a fire was deliberately started at 12 Chepstow Road, Denton Burn, Newcastle upon Tyne. This was the home of Lisa Dodgson then aged 25, and her two small children, Amy, aged 2, and Rosie, who was a baby of 9 months. Lisa Dodgson and her two children died in the fire, as did her babysitter, Emma Cater, then aged 16.

On the previous evening, Lisa Dodgson had been out with her friend Lisa McKeswick, leaving Emma Cater to look after the children. At around 10 p.m. they met the appellant, Cornish and a man called Erskine at a public house. After leaving the pub, the four of them went to 12 Chepstow Road. They bought some alcohol and on the way the appellant bought some cannabis. Until about 2 a.m., when Lisa McKeswick left, the evening had been pleasant and everyone had been in a good mood. The appellant had his hair cut with a pair of electric clippers.

Soon after 5 a.m. that morning, 12 Chepstow Road was on fire and emergency services were called. All four occupants were found in a front upstairs bedroom. Lisa and her two children were pronounced dead at around 6.15 a.m. Emma Cater was taken to hospital, but died that afternoon. The fire had been started by petrol being poured into the house through the letter box in the front door and the petrol being ignited. A fire-fighter at the scene found a petrol can by the front door and noticed a strong smell of petrol vapour.

It was the prosecution case, established by evidence and not disputed by the defence, that the fire was started at around 5 a.m. on the morning of the 14^th May. The Fire Service had arrived at 5.18 a.m. and estimates by a member of the Fire Brigade and by a forensic scientist put the start of the fire 10 minutes or so before then.

It was the prosecution case that a disagreement had developed after Lisa McKeswick had left the house, and that the appellant, Cornish and Erskine had deliberately started the fire. It was further the prosecution case that they, along with others conspired to pervert the course of justice by the destruction of evidence, by giving false information, by trying to blame others and by intimidating a prosecution witness in order to hinder investigations into the fire.

Erskine committed suicide by hanging himself on the 17^th August 1998, the day of Emma Cater’s funeral.

There was no direct evidence that the appellant started the fire. The prosecution relied on a large body of circumstantial evidence. We will refer to the main parts of this later in this judgment. The prosecution also contended that the appellant had told a whole series of lies in his interviews with the police. The generality of this was abundantly established by a detailed series of significant and unequivocal differences between what the appellant initially told the police he had been doing in the early hours of 14^th May 1998 and the account which he eventually gave in the witness box.

Sunrise on the 14^th May 1998 was at 5.01 a.m. BST. It was relevant to estimate or try to establish how light it was at, and leading up to, 5 a.m. that morning. The evidence included video evidence from security CCTV cameras taken on the morning of the fire from a hospital and a filling station in the area.

There was evidence that the appellant, Cornish and Erskine had left 12 Chepstow Road at some time after Lisa McKeswick had left at 2 a.m. and before the start of the fire. The prosecution case was that the appellant left 12 Chepstow Road at around 4.30 a.m. with Erskine. The prosecution asked the jury to conclude on the evidence that the appellant then went with Erskine to Erskine’s house at 95 St Margaret’s Road where there was a Ford Fiesta which, according to evidence called by the prosecution, had previously had a red petrol can in it. They then returned to 12 Chepstow Road in the Fiesta, poured petrol from the can through the letter box and ignited it, leaving the petrol can where the fire fighter found it.

The appellant’s eventual case was that he and Erskine left 12 Chepstow Road at around 3 a.m. They went by taxi to the home of Michelle Thompson at 27 Whitehouse Road. The appellant went into Michelle Thompson’s house where he remained for the rest of the night until he left at about 8.30 a.m. Erskine went on in the taxi. Also at Michelle Thompson’s home that early morning was a man called Darren Milburn.

It may thus be seen that the time at which the appellant arrived at Michelle Thompson’s house was of central significance. If it was, as the appellant eventually claimed, at around 3.30 a.m. or at any time significantly before about 5.10 a.m., the appellant could not have started the fire, assuming that he stayed at Michelle Thompson’s house after he had arrived there, as was the evidence. For this reason, the evidence of Michelle Thompson and Darren Milburn was centrally critical. Also important was the state of light at various stages between about 3 a.m. and 5.15 a.m., since various witnesses described the state of light in connection with relevant events.

There is before the court an application to adduce fresh video evidence taken professionally by Dr. Borer in the area on the 17^th May 2000. He had tried to do this on 14^th May 2000, but unfortunately he was mugged at 4.28 a.m. and his video and car taken. The camera was not recovered. The prosecution did not oppose the application and the evidence was admitted. Each member of the court has seen both the original videos and those taken by Dr Borer. His observations included that at 4.25 a.m. the sky was becoming quite bright in the south and that the moon was no longer a significant source of light; that it was effectively daylight at 4.40 a.m. and that it was daylight by 5.03 a.m. The hospital video shows that street lighting on 14^th May 1998 went off there at about this time.

We also heard evidence at the behest of the Crown from Mr Taboney from the Meteorological Office. He said from records that there was something of a sea fog over Newcastle on the morning of 14^th May 1998 which would have affected people’s perception of light. But on 17^th May 2000 – the day of Dr Borer’s videos – there were large amounts of cloud with a few breaks. If there was sea fog over Whitehouse Road on 14^th May 1998, the light conditions then would have been very close to those on 17^th May 2000. Generally speaking, the start of twilight would have been at around 4.00 a.m. and it would have been broad daylight by 5.30 a.m.

The appellant had accepted in an interview and accepted in his evidence that, on the evening of the 13^th May 1998, he had been out thieving with Cornish, Erskine and a man called Maurice Stephens. They had stolen a red metal petrol can from a car in Fawdon after being driven there in Stephens’ car. The appellant, Cornish and Erskine ended up later that evening at the Bobby Shafto Public House, where they met Lisa Dodgson and Lisa McKeswick and were then invited back to Lisa Dodgson's home.

Lisa McKeswick gave evidence that they all spent a pleasant time chatting, laughing and joking. She herself left at around 2 a.m. About 5 minutes earlier, Lisa Dodgson had asked everyone to finish their drinks as she wanted to go to bed, but Lisa McKeswick said that others showed no signs of leaving when she did. She next saw the appellant and Cornish walking past her house the next day at around 10.50 a.m. By that time it was generally known that there had been a fire at 12 Chepstow Road. She spoke to the appellant about what had happened. He said “It could have been us” and he might have said that it was terrible. Cornish, she said, had a black eye but when she asked how he had got it neither of them answered.

It was the appellant’s evidence that Cornish left 12 Chepstow Road at around 2.30 a.m. before he, the appellant, and Erskine also left. The appellant admitted that he had assaulted Cornish at around 2.30 a.m. after he had “taken the piss” about his haircut.

Victoria Turnbull lived at 62 Chepstow Road. This is on the same South side of Chepstow Road as number 12 quite close to its junction with Norland Road. On the morning of the fire, she woke to go to the lavatory and saw from the digital clock in her bedroom that the time was 4.31 a.m. She heard voices in the street and looked out of her bedroom window. It was turning light and the street was pretty well lit as the street lighting was still on. From her window, she saw two lads on the same side of the road as her house. They had local accents and were in their late teens or early twenties. She had a better view of the one closest to the window whom she described. Her description included that his hair was fairer than that of the other man. They were both about 5ft 10ins tall. She said that they were in her view for about two minutes. They went out of sight at Norland Road, so that they were travelling away from number 12. Victoria Turnbull heard about the fire later that morning. Some days later she saw a group of youths around the Bobby Shafto Public House. She heard someone call out the name “Albert” to a person whom she recognised as the fair headed of the two lads she had seen on the morning of the fire. He answered to the name Albert, and she noticed that he had a wrapper or bandage round his hand. Erskine’s first name was Albert, and it was the prosecution case that the fair headed lad seen by Victoria Turnbull, and subsequently recognised by her as a person responding to the name Albert, was indeed Erskine. She did not identify the other person, but it was and is the prosecution case that it must have been the appellant, not least because it was the appellant’s case that he was with Erskine at all times until he parted from him at Michelle Thompson’s house. There was evidence that Albert Erskine had an injury to his hand when he was seen on the 14^th August 1998, just before he committed suicide.

Kerry Maclean lived at 35 Chepstow Road. This is on the north side of the road and set back from the straight run of the road at the head of a short ox bow. Because it is set back the house has a clear view of the main part of the road, but limited vision to the right and left. She was woken by her partner at about two minutes before 5 a.m. on 14^th May when he returned very drunk and had to be let in. She then saw a figure running very fast on the south side of Chepstow Road. She described the figure as a male, dressed in a hooded top tied tight at the face, 5ft 7ins – 5ft 8ins tall with a slim build. He wore a red, blue and white jacket and dark trousers. He was in her view for about 5-10 seconds.

An Eisenegger jacket, which fitted this description was recovered from the home of Patrick Graham, one of the co-defendants originally charged on this indictment. It was found to have a small smear of blood on it that matched the blood of the deceased Lisa Dodgson. The jacket did not have a hood and Graham said that he had removed it as soon as he bought it. When he gave evidence, Graham denied that he had been the man seen running and said that he was in bed at the time. A jacket recovered from the appellant had no hood, but a witness testified that around this time he had seen the appellant wearing a jacket with a hood up. There was, we think, no proper evidential basis for a conclusion that the running figure seen by Kerry Maclean was the appellant. We were told that no evidence or theory explained how Lisa Dodgson’s blood came to be on the jacket recovered from Patrick Graham’s house.

Michelle Thompson’s evidence was that, in the early morning of the 14^th May, she heard Erskine and the appellant shouting from the street asking to be let into her house. She did not also see a car outside, but she could not remember looking up or down the street. This was relevant to the appellant’s evidence that they had travelled by taxi and to the prosecution case that they had returned to 12 Chepstow Road in the Fiesta. She could not remember exactly what the time was when this happened. She remembered looking at her watch between 3.30 and 4.30 a.m., when it was just starting to get light. After she had looked at her watch, she was dozing and then she was woken by the two men outside. She could not remember how long after she had looked at her watch this occurred. She then looked outside and described the state of the day or night then in the words “it was just starting to get light”. She went to let the men in, but Erskine said he was going home. The appellant said that he had been at a party at Lisa’s and that he had argued with Lisa, Cornish and Erskine. Also at her home then was Darren Milburn. He woke up and went upstairs to sleep in her room and both she and the appellant remained downstairs. He seemed all right and he did not smell of petrol. He left with Darren at just after 8 a.m. the following morning. In cross-examination, she admitted that she had lied to the police on a number of occasions when she said that she had never had a sexual relationship with the appellant. She had had such a relationship before 14^th May 1998.

Darren Milburn confirmed that he had been at Michelle Thompson’s house in the early hours of 14^th May. He got there between midnight and 1 a.m. He was woken by voices and the appellant came in. He had a bit of a chat with him for about 10 minutes and he then went upstairs to bed and slept in Michelle’s bedroom. When he did so it was light outside. He did not have to turn the light on in the bedroom. In cross-examination he agreed that, when he was interviewed by the police, he had put the time of this at 4.30 a.m. He said that he could have been mistaken with the lights coming on in saying 4.30. He said in cross-examination that when he went upstairs “it was starting to get light”.

After the jury had retired to consider their verdict, they were obviously particularly interested in the evidence of Michelle Thompson and Darren Milburn. They asked for a transcript, which the judge told them they could not have. But he responded to their request by reminding them for a second time of the evidence of these two witnesses as to timing. The jury were also shown the hospital video again.

Soon after the fire, it was known that the police were wanting to interview people who might help. Cornish and Erskine went to be interviewed on Monday 18^th May. The appellant did not do so until the 22^nd May, although there was evidence that he was in the car which took Cornish and Erskine to the police station on the earlier occasion.

There was evidence from a man called Craig McDonald. The judge warned the jury to treat his evidence with caution as he had a criminal record and was released from custody on the 22^nd May 1998. He said that he had a conversation with the appellant on 25^th May outside the Bobby Shafto public house. The appellant told him that the police had questioned him and he said something like “they thought they had us”.

Michelle Thompson gave evidence that the appellant came to her house on three occasions about a week after the fire. One of those occasions was the 25^th May at around midnight. He was very angry and shouting and had a sword. He asked her if he should go to a garage and get some petrol and petrol bomb next door's car. She was not sure if he said he would petrol bomb her house or pour petrol through the letter box. He told her that he had been with the police for two days about Lisa. He held the sword against her legs and then told her that she had better keep it for her own protection. The appellant also said that “they cannot prove it, they’ll never catch us.” The appellant denied saying this. She said that he asked her what time he had come to her house on the 14^th May. When she replied about 4.30 a.m., he said no it was 3 a.m. He asked her then or later “do you want the hammer?”. He had frightened her during this visit. The appellant denied that he had threatened Michelle Thompson in this way. He also denied having a sword, although he accepted that he had had a knife with a 6” blade.

A taxi driver gave evidence that on the 25^th/26^th May, the appellant was in his cab for about 2 ½ hours as he and others were taken to a number of addresses in the area. He had what appeared to be a very large knife. The witness said that he saw that he carried this inside his coat and he half pulled it out and asked “do you want to be chopped up?”. The appellant denied threatening the taxi driver, although he admitted that he had carried a knife. He said that he was drunk.

There was evidence about petrol cans. John Turnbull was a cousin of Cornish and the appellant. The judge directed the jury to treat his evidence with caution as he had a criminal record and had had conversations with another witness while he was in a Young Offenders Institution. He said that he had been present with that witness, David Crone and Cornish when the Fiesta was purchased. It was kept in Erskine’s drive. About a week before the fire, John Turnbull borrowed a petrol can from the owner of a local fish shop. Erskine and Cornish were there at the time. They put a funnel in the can and used it to fill the car with petrol and then put it in the back of the car. They wanted to keep it, so he put a few scratches on the side of the can with a screwdriver, so that if the man from the fish shop asked for it back, they could point to the scratches to show that it was theirs. The petrol can had been new and still had a sticker on it. The petrol can found at the scene of the fire had a manufacturer’s label on the end by the nozzle. When he was shown the can which was found at the scene of the fire by the police and in court and asked to compare the scratches on it with the ones he had made, Turnbull in effect said that they were the same marks. In cross-examination, he said that he could not say if it was the same can. The owner of the fish shop confirmed that he had lent a petrol can, but said that he only dealt with Erskine. The can that he had loaned to Erskine was not the same shape as the one that was found at the scene of the fire nor as the one spoken of by Turnbull. The petrol can which the appellant admitted stealing on the evening of the 13^th May was a metal one. The one found at the scene of the fire was plastic.

The appellant was interviewed on the 22^nd May 1998. He said that after Lisa McKeswick left Lisa Dodgson’s home, they all stayed for a little longer. At about 2.50 a.m. he told her that he needed to leave, as he had to be up early the next day to visit his brother in Durham prison. She told him that they could stay if they wanted, but he said no. They might see her at the prison later that day, as she was also visiting someone. She saw them to the door and thanked all of them for coming. All three men left together and it was just getting light. The house had an old wooden door with a glass panel and there was a letter box below the glass. This was his first visit to the house. The prosecution invited the jury to conclude from this evidence that he knew the details of the door because he went back and poured petrol through it. The defence submitted that the property was a council house which had standard doors fitted. The appellant gave the route which the three of them took. He said that after leaving Cornish and Erskine he arrived home at between 3.10 and 3.15 a.m. He said that his mother was away staying with his sister. He had not seen anyone on the way home and he went to bed at about 3.15 a.m. He slept until 8 a.m. when he was woken by his mother and learned about the fire later that day from Maurice Stephens. The appellant later admitted that this initial account to the police contained a series of lies.

He was arrested on the 9^th June and interviewed again on the 10^th June. He said that he was sorry for messing the police about. He denied that he had held a red petrol can or that he had seen one in the red Fiesta. He admitted that he had hit Cornish while they were at 12 Chepstow Road and that he had remained in the house for a further 10 minutes. Cornish left about 20 minutes before he did. He and Erskine both left at about 2.50 a.m. He said again that it had just been getting light as they left. He also admitted slapping Erskine as “they were both winding us up”. When he left, he went to a phone box as he wanted a taxi to take him to his girlfriend’s house. She was Charlene Tams. He said that he had phoned Scotswood Taxis and described the taxi that came. Erskine got into the back and he sat in the front. On the way to Charlene’s house, he told Erskine to wait for two seconds while he called on another girlfriend, Michelle. The taxi waited and, as Michelle invited him in, he sent the taxi away with Erskine in it after paying his share of the journey. Investigations showed that no call was made to Scotswood Taxis from that phone box that night. In his eventual evidence, the appellant gave a different account and said that he could not get through to Scotswood Taxis and no taxi came for them. At this 10^th June interview, the appellant said that he remained at Michelle’s house and left later that morning to pick up Erskine. Her cousin or brother had also been at the house. In a later interview, he gave a different account of the route he took to Erskine’s that morning. He said that he did not mention seeing Michelle earlier, as he wanted to get back with Charlene. It was Charlene’s evidence that she had not been the appellant’s girlfriend before 14^th May 1998.

The appellant gave evidence at the trial. He told the court that he was released from custody on an unrelated matter in March 1998. He agreed that he, with others, had committed offences on the evening of the 13^th May. This included breaking into a car and stealing a red metal petrol can. He later met the two Lisas at the pub and was invited back to Lisa Dodgson’s house. He had known her for about 12 years but denied that there had ever been any romantic involvement between them. He further denied that he had slapped her a few days before the fire as alleged in evidence by a witness, Tammy Raine. Erskine, Cornish and he returned to Lisa Dodgson’s house. The babysitter was there. He had never met her before. They smoked cannabis and he had his hair cut. Both the children were there at some point. At about 2 a.m., Lisa McKeswick left. Cornish gave him some cheek perhaps about his hair cut and the appellant hit him above the right eye. Lisa gave Cornish a cloth as he bled. At about 2.30 – 2.45 a.m., he left saying that he was going to get his eye sorted out. Erskine and the appellant remained for around another 15-20 minutes chatting and smoking. Lisa did not ask him to leave at any time. She asked if they wanted to stay. The appellant did not want to stay, as he had to get up early to visit his brother in prison. He was not wearing a watch, but he said that it was around 3 a.m. or just after when he and Erskine left Lisa’s.

He said that, outside in the garden, he hit Erskine because he was going on about how Cornish had been treated. There had been no previous unpleasantness involving Lisa. He said that he was a bit drunk and that he had smoked cannabis. He described the route that he took as he left Lisa’s. He had been seeing and having a relationship with Charlene Tams and she had given him a key to her house.

Charlene Tams had given evidence that she began a relationship with the appellant about a week after the fire. She denied that there had been any involvement between them before the fire. However, Patrick Graham told the court that to his knowledge the appellant was having a relationship with Charlene before the fire.

The appellant’s evidence was that, as he and Erskine approached the Bobby Shafto pub after leaving Lisa’s, he decided to go to Charlene’s house and wanted to call a taxi to take him there. He promised to drop Erskine off in the taxi. He tried to get through to the taxi office. He did not think he managed to do so, but Erskine knocked on the window of the phone box to say that a taxi was there. He was not quite sure what taxi it was but they set off. These details were, of course, different from those which he had given in his police interviews. His evidence was that Albert Erskine had flagged down the taxi which was a blue Sierra after he could get no reply from the taxi firm. He denied that he was making it all up. He said that at the time he was interviewed his mind was confused. As the taxi drove past Michelle Thompson’s house, he noticed that a bedroom light was on, so he told the taxi driver to stop. He knocked at her door while Erskine remained in the taxi. It was no later that 3.30 a.m. and it was, he said, “cracking dawn, showing light.” He paid the taxi and it drove Erskine away.

The distance between the Bobby Shafto public house and 27 Whitehouse Road, where Michelle Thompson lives, is no more than about 200m. The distance between 27 Whitehouse Road and 95 St Margaret’s Road, where Albert Erskine lived, is no more than about 250-300m.

The appellant’s evidence was that, when he went into Michelle Thompson’s house, a young man was on the sofa, her cousin Darren. He did not tell Michelle that he had argued with Lisa, Cornish or Erskine. He only said that he had slapped both the men and that he would apologise to them. He went upstairs with Michelle. He was not sure whether they had sex. He went to sleep and woke up at about 8 a.m. He went downstairs and Darren was still there. He then left with Darren at about 8.30 a.m. and walked with him over to Erskine’s house. It will be recalled that Darren Milburn’s evidence was that he went upstairs and that the appellant and Michelle stayed downstairs.

The appellant was cross-examined. He was asked to explain why he had lied to the police. His explanations included that he had lied about being at his mother’s house because he was terrified of being blamed for something he had not done. He wanted a cast iron alibi, but did not want to involve Michelle Thompson as she was a young girl. He was cross-examined about events on the 25^th May. He said that he did not visit Michelle Thompson then in order to make her provide him with an alibi. He did not take a sword. He had never owned a sword. He did not threaten her. She had made up the allegations against him. He only went to see her on that day as he often did. He admitted that he may have had a knife which might have stuck out of his pocket. If he had wanted her to provide him with an alibi, he would have gone to her before he went to see the police.

A sword, for which the forfeiture order was made, was later found hidden behind some furniture at Michelle Thompson’s house. She had not initially told the police that it was there.

Applications

At the beginning of the trial, Mr Milford QC, on behalf of the appellant, applied to the judge to direct severance of the charges as between the appellant and Cornish and to order separate trials. The application was supported by counsel on behalf of Cornish. The judge rejected these submissions being satisfied that a fair trial could take place without severance.

At the conclusion of the prosecution evidence, Mr Milford submitted on behalf the appellant that there was no case for him to answer and that the case against him should be withdrawn from the jury. The judge rejected this submission. Counsel on behalf of Cornish successfully submitted that there was no case to answer against him on the murder and arson counts and the judge directed that verdicts of not guilty should be entered on those charges against him. Mr Milford then applied on behalf of the appellant for the jury to be discharged in his case because of prejudice to the appellant from evidence, inadmissible against the appellant, which had been admitted in their joint trial against or at the behest of Cornish. The judge rejected this submission.

Grounds of appeal against conviction

The appellant, through Mr Milford, submits that his convictions are unsafe. He relies on one or more of the following grounds of appeal:

(a) the fresh evidence of Dr Borer’s videos calls in question the jury’s verdict;

(b) the judge was wrong not to order separate trials of the appellant and Cornish;

(c) the judge was wrong not to discharge the jury and order a new trial of the appellant following Cornish’s acquittal;

(d) the judge wrongly rejected the submission of no case at the close of the prosecution evidence;

(e) there were certain omissions from the judge’s summing up.

Mr Milford did not pursue submissions in the written grounds of appeal that the evidence of Tammy Raine and part of the evidence of Michelle Thompson should not have been admitted

Mr Milford’s broad submissions are that the case against the appellant was weak. Because he was tried jointly with Cornish, evidence was admitted which was prejudicial. There was no direct or scientific evidence linking the appellant to the fire. The prosecution evidence itself provided the appellant with an alibi. The alibi evidence is reinforced by fresh evidence of Dr Borer relevant to the state of light in the early morning of the 14^th May 1998. There was good evidence which showed someone else was responsible for setting the fire.

Mr Milford explained that this was a case which attracted much publicity and that feelings ran high in the area, a post-war housing estate three miles to the West of Newcastle. A number of the witnesses had criminal connections and some had been in custody. Much of the evidence was intrinsically unreliable and, said Mr Milford, lying came as second nature to most of the witnesses. The appellant lied and he had a record. The people in the area may have convicted him in their minds a long time before the trial.

Severance and not discharging the jury when Cornish was acquitted

At the outset of the case, it was submitted on behalf of Cornish that there was no case against him. The application was rejected. After the conclusion of the prosecution case, it was submitted there was on the evidence no case against Cornish. The judge acceded to that submission. Although Mr. Milford submits the judge was wrong to reject Cornish’s application at the outset, his substantive grounds of appeal on this aspect are, first, that the judge should have ordered separate trials at the outset, and, second, following Cornish’s successful submission at the close of the prosecution, the judge should have discharged the jury. There should have been a fresh trial of the appellant alone.

The case against Cornish

As part of our consideration of Mr. Milford’s submissions, we have considered whether there ever was a case against Cornish. In the course of argument, we asked Mr. Batty to summarise it for us. It came to this.

Petrol had been stolen on the night before the fire. The next morning it had gone. Cornish had a connection with the petrol can which had been used to pour the petrol through the letter box of 12 Chepstow Road. Cornish had been at 12 Chepstow Road with the appellant and Erskine when some sort of disagreement occurred. Whether Cornish left with the appellant and Erskine was crucial: so was the time. Cornish was inconsistent and vague about that. First, he said he left with the other two. Then he said he left alone. When he did so, he claimed, it was darkish and lightish. On any view, the three were together again within hours. They remained so constantly. Together, they decided to lie about what had happened when they were at 12 Chepstow Road. Cornish lied to several witnesses about when he left. Cornish agreed there had been violence at Chepstow Road. He claimed that he was the victim. He lied about the violence said to have been used on him.

There was evidence capable of providing Cornish with an alibi. It was from his mother. She plainly was not a disinterested party. She said he was at home at 3.20 a.m. However, she washed Cornish’s clothing.

In our view, there was a sufficient circumstantial case against Cornish for the trial to proceed against him. The judge was quite entitled to rule as he did.

By the close of the prosecution, there had been four weeks’ of evidence. In particular, Cornish’s mother had given evidence. She was called by the Crown and the judge heard her evidence. This appears to have been an important factor in his decision to withdraw the case from the jury. By then too, the judge knew more of the general background of the defendants. He was in a better position to assess the significance of Cornish’s participation in putting forward a false account of events in Chepstow Road.

In our view, just as he was entitled to let the case against Cornish proceed, so the judge was entitled to come to the view he did at the close of the prosecution. The fact that he then reached a different decision does not mean, as Mr. Milford suggested, that the original decision was wrong.

Separate trials

The judge set out the basis of the application in his ruling. As he put it

“…the essential basis of Mr. Milford’s submission [is] that the defence of Cornish is likely to involve suggesting that Ray may have started the fire. And in support of that contention it is submitted that Cornish, through counsel, will seek to elicit from Prosecution witnesses evidence which demonstrates that Ray was predisposed to violent and irrational behaviour both before 14 May and immediately thereafter. This in support of the general contention…that Cornish was not involved in causing the fire…”

In support of his application to the judge, Mr. Milford, as he has before us, set out the many prejudicial matters he alleged would be introduced in a joint trial. They fell broadly into three groups: first, what was said by Cornish in interview; second, specific pieces of prejudicial evidence, otherwise not admissible, which would be elicited by Cornish’s counsel; and, third, admissible evidence damaging to the appellant which would be underlined in cross-examination by Cornish’s counsel. We have considered all the matters on which Mr Milford relies. They are all set out in the Advice on Appeal and in summaries which he has prepared. We summarise some of them.

In interview Cornish spoke of the appellant threatening Cornish to tell lies about what happened. He referred to the appellant as a “nutter”. He spoke of the appellant threatening to smash Cornish’s mother’s windows. He referred to many similar matters. By agreement, that part of Cornish’s final interview and a letter in which he said that the appellant confessed to setting the fire were not placed before the jury.

Otherwise inadmissible evidence included comments by witnesses to the effect the appellant had a short fuse, was prone to violence, was aggressive and unpredictable and liable to hit someone for no reason.

Matters which might be (and in the event were) underlined, included such things as Lisa Dodgson slapping the appellant, the very damaging evidence of Michelle Thompson and the damaging evidence of David Crone.

As we have said, the judge considered the application with care. He specifically bore in mind that

“The discretion given to a trial judge to order separate trials is wide one, but like all discretions it must be exercised judicially.”

He referred to the well know authorities, in particular the case of Lake (1977) 64 Cr. App. R. 172 at 175, where Lord Widgery LCJ said

“It has been accepted for a very long time that there are powerful public reasons why joint offences should be tried jointly. The importance is not merely one of saving time and money, it also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be tried as separate offences, all sort of inconsistencies might arise … The question for severance is primarily one for the trial judge.”

Having considered the evidence and the relevant authorities, the judge said that he

“ … was satisfied that a fair trial can take place without severance…on the basis that at all stages I will do my utmost to ensure that only relevant admissible evidence is lead…Further that at the end of the trial, should either Defendant still be in the charge of the jury, I will…give the most careful directions as to how they should approach the material they have heard …”

In our view, the judge was entitled to come to the view he did about separate trials. He carefully considered the relevant evidence. He correctly applied the law. It was plainly a matter within his discretion. Indeed, each member of this Court would have exercised his discretion in the same way. To have decided otherwise would have resulted in a quite artificial situation. This ground of appeal must fail.

Discharge of the jury

Mr. Milford submits that his worst fears were fulfilled. The interviews were elicited. The damaging evidence was adduced and underlined by those representing Cornish. The submission on behalf of Cornish succeeded. In the circumstances, submits Mr. Milford, the jury should have been discharged. Nothing the judge could say to the jury could rectify the situation. Although again Mr. Milford accepts the judge had a discretion, it could only reasonably have been exercised by discharging the jury. He submits the judge was plainly wrong not to do so.

Mr. Milford also suggests that had the appellant been re-tried, the jury would not have heard what he describes as the extremely prejudicial evidence of a witness called Douglas Johnson. We shall consider that separately. This evidence did not, as we understand it, form any part of Mr. Milford’s submissions on the discharge of the jury at the close of the prosecution.

As will become clear, we do not accept Mr. Milford’s submissions. We have concluded that the judge was entitled to permit the trial to continue.

It is agreed that the judge correctly set out the test he had to apply. The test is set out in Sawyer [1980] 71 Cr. App. R 283, an authority to which the judge referred in some detail. In that case, Lord Widgery LCJ said at page 285 that

“…the judge had to decide whether or not there was a real danger that the appellant’s position had been compromised by what had happened. Was there a real danger that she was or might have been prejudiced by what had gone on?”

The judge also referred to McCann [1991] 92 Cr. App. R. 239 (a case wholly different on its facts to the present). At page 252, Beldam LJ, who gave the judgement of the Court, said this:

“The learned judge said on more than one occasion that if he thought that a fair trial of the accused was in danger, or if he was satisfied there was a serious risk to a proper verdict in a fair trial, he would have discharged the jury.”

Finally, having set out the test to be applied, and summarised the relevant evidence (to which we shall refer), the judge said this:

“Against the whole background of this case, and having given these submissions … the most careful attention I can, and having … analysed the whole of the evidence as best I can, I have come to the conclusion that the trial of Ray should proceed. I have concluded there is not the real danger that his position has been prejudiced as a result of the course the case has taken.”

Again, there is no dispute as to the test this Court should apply. It is set out at page 251 of McCann.

“… when the learned judge considered the application at trial he was exercising a discretion. To the exercise of this discretion, this Court must give great weight. To reverse the judge’s ruling it is not enough that the members of this court would have exercised their discretion differently. We must clearly be satisfied that the judge was wrong; but our power to review the exercise of his discretion is not limited to cases in which he has erred in principle, or there is shown to have been no material on which he could properly have arrived at his decision. The court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review, if it thinks that the judge’s ruling may have resulted in injustice to the appellants.”

Having set out the principles, we turn to the evidence. Much of the inadmissible evidence relied by Mr. Milford, derives from the interviews. That is by no means an unusual situation. It often can be dealt with by good case management and careful directions in the summing up. That is what happened in this case. First, the most potentially prejudicial parts of what Cornish was saying about the appellant were not adduced. As we have said, the final interview (and letter), in which Cornish said the appellant had admitted setting the fire, was not before the jury. Second, from the outset of the case, the limited use to which Cornish’s interviews could be put was emphasised. For example, on 3 March 2000, during the evidence of a witness called McDonald, who had given evidence of what Cornish had said about the appellant, the judge said:

“… I want to say something that is important … it is important that you understand the law as the case goes along. You were correctly told by Mr. Batty when he opened the case … that what was said by one of these defendants … in the absence of the other was not evidence against that other.”

He referred to the evidence they had just heard. He went on to say:

“You may at first sight think that’s just lawyers being daft, but if you give a thought to it for a second, I am sure you appreciate why it is not evidence.”

He then explained why it was not. Third, once the case against Cornish was stopped, the interviews were removed from the jury. The reason, as we understand it, was explained to them. Fourth, the direction in the summing up was, as the judge foreshadowed in his ruling, both clear and strong:

“The statements which Cornish made to the police in his interviews and to others, as I told you during the course of the case … such statements made about what was said, made in the absence of Ray, which may be thought to implicate Ray in these offences, are not and can never be evidence against Ray. He was not present and had no opportunity to contradict what Cornish said at the time … bear this in mind, Cornish had his own interests to serve and promote when he was seen by the police and when talking to Craig MacDonald and on other occasions… You must disregard anything said by Cornish outside Ray’s presence and led in evidence when Cornish was a defendant …”

In our view, the judge could reasonably conclude that the jury would abide by the directions they had been given during the course of the prosecution case and would be given in the summing. There was no reason to withdraw the case on account of the interviews. In the event, moreover, the judge gave the clearest possible direction.

We accept, as did the judge when considering the application, that there was otherwise inadmissible evidence elicited by Cornish. It has helpfully been summarised by Mr. Milford in a single document which we have carefully read. However, this evidence needs to be considered in the context of the case as a whole. This inadmissible evidence was not the only evidence of the appellant’s violent disposition. There was other admissible evidence of it. The judge referred to some of it in his ruling, as follows:

“It is fair, however, to make this point; that quite apart from material that could only have come in as a result a joint trial, the jury would have had before it, were Ray tried alone, evidence from witnesses from which the jury could have concluded that Ray had on occasion displayed a violent temperament. I think particularly … of the evidence of Michelle Thompson and the taxi driver McDonald. Further, Ray on his own admission had, to use a neutral expression, encouraged Cornish to give a lying tale against his own interest.”

Mr. Batty, in submissions to us, relied on the following such evidence. The appellant admitted that on the night of the fire he “fisted” Cornish in the face. He “backhanded” Erskine in the garden. Michelle Thompson said that he threatened her with a Samurai sword and threatened to “hammer” her. Ballantyne, the taxi driver, said that he was threatened by the appellant with a weapon. McDonald said the appellant was carrying a two foot long weapon in his trousers (although the judge warned the jury to be careful about this evidence). Tammy Raine said that the appellant slapped Lisa Dodgson in the face. We also accept, again as did the judge when giving his ruling, that further admissible material was elicited by cross-examination.

It is clear that before giving his ruling, the judge, who had by then presided over a trial lasting some four weeks, considered the evidence as a whole with great care. He made that plain in his ruling. Again, as he foreshadowed, the judge gave a clear and careful direction. He said this:

“You have heard that the defendant was in trouble with the police when he was fourteen. You have got that from him…thereafter he has committed criminal offences and been convicted, and that at the age of 26, as he now is, he has served sentences of imprisonment. Ordinarily a jury would not hear of such matters, but in this case, given the circumstances and the whole background to it and the defendant’s way of life, it would you may think, have been impossible to make sense of the evidence … without you hearing of the defendant’s way of life and that of his associates. It has never been suggested on his behalf you should not know of these matters. Indeed, he frankly volunteered an outline of this record when he started to give his evidence … but you must not assume that Ray is guilty of the offences … or … not telling the truth because of his previous convictions and his admitted way of life…By the same token, disregard evidence led at the behest of Cornish. You remember Mr. Hedworth’s cross-examinations in support of … Cornish’s defence, that he told lies to the police in fear of Ray, because Ray had a propensity to violence … That evidence was only relevant to the defence of Cornish. The Crown have not led it before you and Cornish is no longer in the case, so put it out of your minds.”

We have carefully considered the relevant facts and circumstances upon which the judge exercised his discretion. We have of course had at the forefront of our considerations whether the ruling may have resulted in injustice to the appellant. In our view, the judge was entitled to conclude that there was no real danger of the appellant’s position being prejudiced. We are not of the view that the ruling may have resulted in injustice to the appellant.

Alibi and Dr Borer’s evidence

Mr Milford submits that on any view of the Crown’s case, the appellant was walking past 27 Whitehouse Road at around 4.45 a.m. This derives from Victoria Turnbull’s sighting of two men, one of whom she identified as Erskine, at 4.31 a.m. and the fact that it took a police officer 12 minutes to walk from her house to 27 Whitehouse Road. Victoria Turnbull did not identify the appellant and he denied that he was there then. But forensically, his lawyers were happy to accept that it was he because it fitted with him passing and entering 27 Whitehouse Road at the time and in the state of light described and before 5 a.m.

The fire was started at or a minute or two after 5 a.m. The prosecution alleged that, having started the fire, the appellant and Erskine drove from the vicinity of Chepstow Road in the Fiesta to Erskine’s house at 95 St Margaret’s Road, left the car there and then walked to 27 Whitehouse Road where he spent the remainder of the early morning. On this case, his time of arrival could not have been earlier than about 5.10 a.m. The distance from 12 Chepstow Road to 27 Whitehouse Road is nearly a mile. Had they driven straight to 27 Whitehouse Road, their time of arrival would have been earlier, but Michelle Thompson saw both of them on foot and saw no vehicle. It is also pertinent that the unidentified person whom Kerry McClean saw running in Chepstow Road two minutes before 5 a.m. was alone and on foot.

Mr Milford submits that the time at which the appellant arrived at Michelle Thompson’s house was a vital issue in the case. To fit the Crown’s case, it had to be significantly after 5 a.m. If it was before 5 a.m., the appellant cannot have started the fire, assuming that the jury accepted Michelle Thompson’s and Darren Milburn’s evidence that, once he had arrived, the appellant remained at 27 Whitehouse Road until about 8.00 a.m.

Mr Milford submits that, when Michelle Thompson gave evidence about the appellant’s visit on the 25^th May, she said that she told the appellant then that he had arrived at about 4.30 a.m. In her evidence about events in the early hours of the 14^th May, she did not refer to a specific time, although she said that she had looked at her watch between 3.30 and 4.30 a.m. She related his arrival to that indeterminate time and to the state of daylight, saying that “it was just starting to get light”. Given differences in perception and of weather conditions, there was a very stark difference between that and the daylight there must have been by 5.10 a.m.

When Darren Milburn was first interviewed by the police, he told them that the appellant had arrived at 4.30 a.m. and that he timed this by an obvious clock on the wall of the sitting room. There was such a clock and there was no suggestion that it was other than accurate. In his evidence, Darren Milburn did not give the time as 4.30 a.m. When he was cross-examined, he agreed that he had mentioned 4.30 a.m. to the police, but he said that he could not now be definite. This was in contrast to his statement to the police that he had definitely looked at the clock. However, he did say in cross-examination that, when he had said to the police “I think that it was starting to get light”, that was right.

There was other evidence as to the state of light. Kerry McClean, who saw a running figure in Chepstow Road two minutes before 5 a.m., described it as “very light”. The jury had heard her evidence, but may well have been more influenced by what they saw on the video. Moreover, when they were reminded after their retirement of the evidence of Michelle Thompson and Darren Milburn and shown the hospital video again, they were not reminded of the evidence of Kerry McClean or of Victoria Turnbull, who said of her sighting of two men at 4.31 a.m. that “it was turning light”. Mr Milford submits that the evidence of Dr Borer bears out the accuracy of Kerry McClean’s evidence. It was not “starting to get light” at 5.10 a.m. It was by then light.

Mr Milford submitted that the jury may have been misled by the hospital video evidence. If Dr Borer’s evidence had been available, they would or may have come to a different conclusion. Dr Borer’s film gives a much better impression of the state of daylight than the hospital film and demonstrates that it is not “just starting to get light” at 5.10 a.m. at that date in May. It is light. In his first statement, dated 22^nd May 2000, Dr Borer says that on the 14^th May 2000, by 4.15 a.m., it was becoming light and that by 4.30 a.m. it was light. He gives more detailed observations for the 17^th May.

The alibi submission is that the evidence of Victoria Turnbull, Michelle Thompson and Darren Milburn was all of a piece and suggested that the appellant had arrived at 27 Whitehouse Road before 5 a.m. If the jury had seen a satisfactory film of the state of light on the 14^th May and had the benefit of accurate descriptions of the state of light, it is probable or at least possible that they would have found that the time the appellant arrived at Whitehouse Road was before 5 a.m. In addition, Michelle Thompson’s evidence was that, when the appellant arrived, he said that he had just come from Lisa Dodgson’s. He did not smell of petrol. It was inherently unlikely that he would have given this information to Michelle Thompson and Darren Milburn, if he had just set the house on fire with two children in it.

Mr Milford suggests that the evidence of Kerry McClean represented a real problem for the prosecution case. It is suggested that the running person she saw must have had something to do with the fire. The case was opened on the basis that the running figure was Cornish. After he was acquitted, the Crown had no explanation. The figure cannot have been the appellant or Erskine on the Crown’s case. There was no evidence to establish that this was the appellant. The evidence did not fit the prosecution’s case, and they never explained how the running figure fitted into their account of events. The defence case was that the running figure was the murderer and that it was not the appellant. It might have been Paddy Graham who had a similar coat and who had no alibi. His coat had Lisa Dodgson’s blood on it and he lived half a mile away.

Submission of no case

This was a Shippey, not a Galbraith, submission – R. v. Shippey [1988] Crim. L.R. 767, R. v. Galbraith [1981] 73 Cr. App. R. 124. Mr Milford accepted that there was a case against the appellant, in that he had been at the house; he had lied; he had made what might be seen as admissions to Michelle Thompson and Craig McDonald; he had threatened Michelle Thompson in the matter of an alibi; and there was evidence about the petrol can, such as it was. But these were no more than a selection of highlights in a body of otherwise unsatisfactory prosecution evidence. The evidence as a whole was tenuous and inherently weak and further provided the appellant with a positive alibi. Mr Milford suggests that, with Dr Borer’s evidence, the submission would have been unassailable.

In addition to the submissions which we have already outlined, Mr Milford submitted that the Crown’s case that the appellant used the Fiesta to return to 12 Chepstow Road and then used a petrol can from the Fiesta to fire the house was speculation. There was no direct evidence that the Fiesta was used that night. There was evidence from David Crone that he was released from 7 days in prison on 14^th May. He was a joint owner of the Fiesta and had taken its key with him to prison. When he was released from prison, he found indications that the car may have been left in a hurry. The ignition was left on; the battery was flat; and there was no petrol in it. He said that there had been a red can in the car when he went to prison on 7^th May. It was not there when he got back. But there was no evidence that put a red can in the car closer to the fire than 7^th May. The Crown’s case was that the appellant and Erskine did not use the car the following morning because they knew that it had no petrol. But it did not make sense, submitted Mr Milford, to leave the can at 12 Chepstow Road, if there was no petrol in the car. An opposing view would be that that the actions of those who had just set fire to a house and wanted to flee would tend to be hasty and poorly thought out.

Mr Milford also submitted that the prosecution case about the petrol can was in disarray. The evidence of Mr Orr, the proprietor of the fish shop, contradicted that of John Turnbull, which was itself insecure. Mr Orr said that had lent a petrol can to Erskine, not Turnbull, and that this can was of a totally different shape from that left at the scene of the fire. Police evidence to the effect that he had previously been shown and recognised the can left at the scene came to nothing.

Under this heading or the next, the appellant relies on unfairness relating to the evidence of Douglas Johnson. He was called to give evidence that he had seen two people, one of whom was the appellant, in Aldwick Road, which is immediately parallel with Chepstow Road, at 5.00 to 5.15 a.m. on 14^th May 1998. Mr Milford criticises the Crown for ever calling this witness when they knew beforehand that he was discredited. He had given evidence in another murder trial in May 1999 and had not mentioned that he had seen the appellant until 15 months after the event. Further, the detail of his evidence was destroyed by that of his girlfriend and his sister, who were tendered by the Crown, and who did not confirm his account of what he was doing that morning. In the result, the judge clearly directed the jury to disregard his evidence. But Mr Milford suggests that the damage may have been done, not least because Aldwick Road was a place where a car might have been parked while 12 Chepstow Road was being set on fire. Mr Milford points out that the judge did not specifically refer to this part of the evidence when he gave his ruling on the submission of no case.

What the judge said was this:

“I have reached my conclusion that on the whole of the available evidence Ray has a case to answer. In reaching that conclusion I have in mind the approach laid down in R. v. Galbraith 73 CAR 124 and the test identified by Lord Lane at page 127. I emphasise that I have reached this decision on the whole of the evidence. I do not intend to isolate particular pieces of evidence to which I have regard. I should say, however, that I attach particular importance in concluding as I do to the evidence of Michelle Thompson taken as a whole, the evidence of her relative Darren Milburn, and the evidence that the Crown has drawn my attention to, deriving from the defendant Ray himself in answer to questions put to him by the police in May and June of 1998 and subsequently.

I have taken into account in this connection and attempted to relate it to the evidence of Thompson and Milburn, the evidence of Ray’s mother as to what occurred between her and Ray, and the accounts given by them at an early stage in these enquiries. Also Ray’s explanations as to why it was that he delayed saying that he had gone to Thompson’s house until a relatively late stage in the enquiry. Those explanations on the available evidence of the witness Charlene Tams the jury could conclude are highly unsatisfactory.”

As to the evidence of Douglas Johnson, Mr Batty Q.C. on behalf of the Crown tells us that, when he cross-examined the appellant, he did not suggest to him that Johnson’s evidence had any relevance. In his address to the jury, he told them that the prosecution did not rely on this evidence. The judge’s direction to the jury to ignore the evidence occupied a whole page of the transcript.

In our judgment, there plainly was a case to answer and the judge was right so to conclude. Granted that the strength of the submission has to be judged at the time it was made – that is, before the appellant gave evidence – in this court, it merges with the submission that his convictions are unsafe. Specifically there was an ample case before he gave evidence that he had lied and the rest of the prosecution case was by then in place. We take the points made under this heading into account in our assessment of the safety of the convictions.

Summing up

Mr Milford made limited submissions only under this head. Generally he accepted that the judge’s summing up was full and fair, and correct in law. First, it is submitted that, when the judge reminded the jury at their request of the evidence of Michelle Thompson and Darren Milburn and when they saw the video again, he failed also to remind them of evidence about the state of the light from Victoria Turnbull and Kerry Maclean. Second, it is submitted that the judge’s direction that there was no direct evidence to link the appellant with the petrol can left at the scene of the fire was not strong enough. It would have been better to have said that there was no evidence linking him with the can. Third, it is suggested that in the special circumstances of this case a stronger direction about lies would have been appropriate. Mr Milford accepts that the judge gave a proper direction about lies. But it would have been fair and appropriate to suggest to the jury that they should consider whether the appellant’s evidence about times may simply have been mistaken. He was a person who had a chaotic existence and was in a poor position to give times accurately. We do not find any of these points persuasive, but we take them into account in our assessment of the safety of the appellant’s convictions.

Crown’s submission as to alibi, the state of the light, and the general safety of the convictions

Mr Batty accepted that a possible analytic version of Michelle Thompson’s evidence might indicate that the appellant arrived at 27 Whitehouse Road before 5.00 a.m. But there was a body of other evidence to say that the appellant committed the crime. This evidence is summarised as follows.

A fire was deliberately started at 12 Chepstow Road at about 5.00 a.m. on 14^th May 1998 by pouring petrol through the letter box and setting fire to it. A red plastic petrol can was used to do this and it was left outside the house. The fire killed four people and this was widely known in the area. The appellant had been in the house that night when drink and cannabis had been taken. He accepted that he was, with Erskine, the last to leave. He had assaulted his two friends, Cornish and Erskine. At about 10 p.m. on the night of the fire, the appellant had been involved in stealing petrol. A Ford Fiesta to which the appellant had access normally carried a red plastic petrol can. On the morning after the fire, this car appeared to have been abandoned in a hurry. It was parked in Erskine’s drive. The battery was flat, the radio was still on and there was no petrol can in the boot. On the morning after the fire, the appellant met with Erskine and Cornish and between them they decided to give a false account of some of the events at 12 Chepstow Road the previous night. Despite being asked by others and despite widespread police appeals to the public, the appellant did not go to speak to the police until 22^nd May. The appellant spent part of the early morning of 14^th May at the home of Michelle Thompson, but he failed to mention her name or that of Darren Milburn to the police as potential alibi witnesses when he was first interviewed on 22^nd May. On that occasion, he gave a false alibi involving his mother and his sister’s child.

The Crown’s case was that the two men seen by Victoria Turnbull in Chepstow Road walking away from the direction of 12 Chepstow Road at 4.31 a.m. were the appellant and Erskine. Victoria Turnbull identified one of them as Erskine. The appellant agreed that he was with Erskine throughout that night until he left him at Michelle Thompson’s front door. Yet he denied that he was the other man whom Victoria Turnbull saw. His case was that he left 12 Chepstow Road at about 3.00 a.m. – an hour and a half earlier than Victoria Turnbull’s sighting. His lawyers may have been forensically happy to adopt this part of the Crown’s case, but it was not his evidence and his denial was highly significant. Why did he invent one (and possibly two) non-existent taxi rides? Mr Batty submitted that he must have been trying to hide what he did and suggested that he may have wanted to cover the possibility that someone heard a car.

Mr Batty submits that the appellant’s lie in relation to Victoria Turnbull’s evidence fits with Michelle Thompson’s evidence of what the appellant did and said on 25^th May. What he said was capable of being a free-standing admission of guilt. What he did was to threaten her with extreme violence to provide him with an alibi – which would have been his second false alibi – to the effect that he arrived at her house an hour and a half earlier than the approximate time she was then giving and at a time that was consistent with the time he was saying he had left 12 Chepstow Road. Why was he doing this, if he had simply come directly from leaving Lisa Dodgson to 27 Whitehouse Road? The Crown also rely on the nature of the threats – both the references to petrol through the letter box and the use of a sword and a hammer. Further a sword was found at Michelle Thompson’s house. The remark to Craig McDonald was also capable of being seen as an admission. Mr Batty also draws attention to other points in the evidence.

As to the time at which the appellant arrived at 27 Whitehouse Road, Michelle Thompson did not give precise times. Nor did Darren Milburn, although he had mentioned 4.30 a.m. to the police. People’s general descriptions of the state of the light vary and are intrinsically imprecise. Her general description of the state of the light was that it was just starting to get light when the appellant arrived. His evidence included that it was light outside when he went upstairs to sleep in Michelle’s bedroom and that he did not have to turn on the light in the bedroom. This was after he had been chatting with the appellant for about 10 minutes. The appellant had told the police that he had put the television on when he arrived at 27 Whitehouse Road and that the programme was “Jobfinder”. It was agreed that this programme was on the television from 4.30 to 5.30 a.m. As with other evidence, this would not pinpoint his arrival, but it was inconsistent with his own account and evidence. As we say, Mr Batty accepts that a possible view of the evidence as to time and the state of the light was that the appellant arrived before 5.00 a.m.. But it was for the jury to consider this as part of the evidence as a whole. The rest of the evidence constituted a strong case that the appellant was guilty and the evidence taken as a whole was sufficient for the jury to be sure. The judge’s summing up was unimpeachable and the jury were made abundantly aware of the evidence of timing and the light. The case now made on appeal was available to be made at the trial and was made. The jury, properly directed, rejected it. The fresh video evidence does not significantly improve that case.

Conclusion

We can state our conclusion shortly. In our judgment, the appellant’s convictions are safe.

We have explained why, in our view, the judge’s decision not to sever the indictment as between the appellant and Cornish and not to discharge the jury when Cornish was acquitted do not provide proper grounds for appeal. We take Mr Milford’s submissions on those grounds into account in reaching our present conclusion. Our decision as to the appeal as a whole subsumes his submissions that there was no case to go to the jury against the appellant at the conclusion of the prosecution case. We do not find the submissions in relation to the evidence of Douglas Johnson persuasive. The judge made it perfectly clear that the jury should not rely on his evidence and we reject the submission that the evidence may nevertheless have had an effect adverse to the appellant.

In our view, Mr Milford rightly concentrated on the grounds of appeal relating to alibi, the state of the light, and the general safety of the convictions as being those with most force. We have carefully considered these submissions, both individually and as a whole. We reject the conclusion that the appellant’s convictions are unsafe because we find Mr Batty’s submissions to the contrary, which we have set out and do not repeat, entirely persuasive. For all that it was circumstantial, the prosecution case was strong. This appeal has rightly concentrated on the particular grounds of appeal. But this will have had a tendency to distort in this court the impact of the evidence as a whole. In particular, the jury will have appreciated the evidential impact of the appellant’s actions after the fire, the lies which he told and the false alibis which he set about concocting. These were not just incidental, but constituted a pattern of conduct. The judge’s directions to the jury on lies and alibi were unimpeachable – see pages 9C to 11 A of the transcript of the summing up. The lies direction in particular was tailored to the occasion. It included this:

“… if you are sure that he told lies, consider this please. Why did he lie? The mere fact that a defendant tells lies is not in itself evidence of guilt. A defendant may lie for many reasons, and they may be innocent ones and do not indicate a guilty mind; to bolster a true defence; to conceal some conduct of which he is ashamed but conduct which is not the offence charged; to protect other people; to shield a girlfriend; out of panic or confusion. They are just examples. What is important for you to have in mind is this. If you think that there is, or may be, an innocent explanation for lies told by Ray then take no notice of them. And here, of course, I, for the sake of clarity, am lumping all lies together, but, members of the jury, please bear in mind that you may conclude that some lies have an innocent explanation and some, as you find, may go to the very heart of the case. So, it is only, and this is the important consideration, it is only if you are sure that Ray, in respect of a particular lie, did not lie for an innocent reason that that lie can be regarded by you as evidence going to proof of his guilt.”

The jury must have been sure that there was no innocent explanation for the appellant’s lies which were central to the case. We are not surprised.

This was a case in which there were elements of the evidence which did not fit together into a fully explained whole. Mr Milford has rightly emphasised the more important of these – for example the running figure seen at two minutes before 5.00 a.m. But the judge gave fair and proper directions about this and the jury must be taken to have taken them into account. We do not find that Mr Milford’s points in this category affect the safety of the conviction.

Mr Batty is, in our view correct in his submission that the alibi case now made on appeal was available and made at the trial. This point in encapsulated in this short passage from the summing up at page 3B of the second transcript. The judge summarised the prosecution case relating to the light, and then said:

“The Defence say, well, that cannot be right because Michelle has given evidence for the Crown, and if you accept what she says then it follows that the defendant was at her house before five o’clock and that she therefore gives the defendant a complete alibi.”

The jury were reminded of the relevant evidence of Michelle Thompson and Darren Milburn for a second time after they had retired and the details of their timings and their descriptions of the light were explicitly part of this. The alibi case which depended on this evidence was therefore at the forefront of their consideration and they must have surely rejected that case on the evidence as a whole. We do not consider that they were or may have been misled by the hospital video. We have each carefully considered all the videos, including those of Dr Borer. It is not for this court to undertake a primary jury function in relation to this material – rather to consider whether, taking the evidence, including Dr Borer’s as a whole, the jury may have reached a different conclusion if they had had it. We accept that it was not, in ordinary considered parlance, only “starting to get light” at 5.00 a.m. on 14^th May 1998, although this is an imprecise expression inapt for scientific analysis. We do not consider that the jury would have been misled into thinking that it was, in ordinary considered parlance, “starting to get light” then. The hospital video is not of good quality and the jury would have been able to see it in the light of their general commonplace knowledge of morning conditions in mid-May. Importantly, however, Dr Borer’s video does not provide a defence which was not already there: and it does not, in our judgment, strengthen that defence to anywhere near the point where the appellant’s convictions become unsafe. As the judge made quite clear to the jury, Mr Milford is correct that Michelle Thompson’s evidence, taken alone and if it were adopted in its literal terms, provided the appellant with an alibi. Dr Borer’s evidence does not in our judgment materially improve that case. The jury, properly directed surely rejected it.

For these reasons, this appeal is dismissed.

© 2002 Crown Copyright

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