England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
THE HONOURABLE MR JUSTICE SILBER

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/01/2006

This is the judgment of the court :

1. On 23 July 2004 in the Crown Court at Winchester before Silber J and a jury the applicant Leslie Gibson was convicted of murder and on 30 July 2004 he was sentenced to life imprisonment with a recommended minimum term of 10 years and 9 months imprisonment. He was tried jointly with his son, David Gibson, who was also convicted of the same murder, namely that of the son's wife, Belinda. We shall refer in this judgment respectively to the applicant, David and Belinda.
2. This judgment contains the reasons for refusing the applicant's renewed application for permission to appeal against his conviction. The application was refused at the conclusion of the hearing on 11 October 2005, when reasons were reserved.
3. The renewal of the application was filed one day out of time, as a result of the absence through illness of the solicitor responsible for the case. We are prepared to extend time so as to validate the application.
4. The prosecution case at trial was that the applicant and David had murdered Belinda on the night of 15/16 February 2002 and that David, with the applicant's assistance, had disposed of her body at sea, weighted by a concrete block, later on the afternoon of 16 February. Her body has never been recovered.
5. The applicant and David both gave evidence that they had each seen her walking away from her home in Purvis Gardens, Sholing, wheeling a suitcase, at about 7 am on 16 February. David said that she had decided to leave home. She had suffered from mental health problems. The applicant said that he had seen her from the window of the home, also in Purvis Gardens, of his friend, Annamari Weeks.
6. Annamari Weeks was the principal witness for the prosecution against both defendants. Although the accumulation of circumstantial evidence against David could be described as formidable, the evidence against the applicant depended very largely on Annamari Weeks' testimony. It was therefore very relevant that she was treated by the judge as an accomplice (as indeed it was common ground that she should be treated). She had in fact been arrested (on 9 May 2002) together with the applicant and David for Belinda's murder, and was later (on 16 September 2002) arrested again for conspiracy to murder and perverting the course of justice (viz disposing of Belinda's keys and medication). In the meantime (on 17 July 2002) she had been interviewed under caution, but not arrested, for assisting offenders (viz disposing of some of Belinda's clothes). She was interviewed many times. She was twice sent a "NFA letter" (first on 27 July 2002 and subsequently on 12 January 2003) telling her that no further action would be taken against her in relation to these matters. Each letter ended, however, with a proviso in case further evidence came to light. She was never charged. Ultimately, however, she became a witness for the prosecution.
7. These circumstances gave rise to an application made on behalf of both defendants to exclude her evidence, "by reason of serious irregularity as to [her] status" and also under section 78 of the Police and Criminal Evidence Act 1984. There was also subsequently an application on behalf of the applicant to stop the trial against him on the basis that her evidence was so unreliable that there was no case to answer. All these applications failed.
8. In her first statement to the police, on 8 March 2002, at the time when Belinda's disappearance first came to the attention of the authorities, Annamari Weeks also said (as did David, but not the applicant, both of whom were also spoken to on that day) that she had last seen Belinda in the street with a suitcase early in the morning. On 9 March 2002 the applicant made his own witness statement, this time also saying that his attention had been directed by Annamari Weeks to the sight of Belinda in the street early in the morning. That remained the position of the two defendants respectively down to trial. However, by the time of her arrest on 9 May 2002, Annamari Weeks admitted that she knew Belinda was dead and that David had killed her by smothering her. At that time she said that the applicant had been with her in her home that night and added nothing to implicate him in the murder. In a subsequent statement read by her solicitor on 31 May 2002, however, she spoke of an occasion about Christmas 2001 at Netley Social Club when she had been present and heard the applicant and David discussing a plan to kill Belinda and put her body in the Solent. It was not until 28 August 2002, however, when in a series of interviews without caution or solicitor she said for the first time that the applicant was present at the scene of the murder, when his hand was scratched.
9. At trial Annamari Weeks' evidence against the applicant was as follows. She spoke of a meeting at McDonald's restaurant in or near Southampton in January 2002 at which David had planned the killing of Belinda. David did most of the talking, but the applicant also joined in the conversation and was not trying to dissuade David. They were to dispose of the body from a boat at sea. Her impression was that the deed was to be done on the next day. Belinda was not killed on the next day. Annamari also gave evidence as to why that was so, but that evidence was only against David, and not against the applicant.
10. Next, Annamari Weeks spoke of a further meeting in a cricket pavilion in Royal Victoria Park in the early hours of the morning in early February 2002. There was then another conversation about plans to kill Belinda, but she could not say who joined in that conversation. However, the applicant was present and, indeed, had picked her up to meet David there. A fourth person, a young side-kick of David's, was also present at both meetings.
11. Annamari Weeks also gave confused evidence about a concrete block. She had assumed that the applicant had gone over to David's house to move it, but had not in fact seen him do so. The judge directed himself that that evidence was not of much value in itself.
12. As for the night of 15/16 February, her account, by the end of her cross-examination, was not clear. She and the applicant had been at her home. She was very drunk. She woke up in the early hours of the morning to find the applicant standing there, but she went back to sleep. She said that she knew that the applicant had been waiting at her house for a text message from David to go over to his home "to go and kill Belinda Gibson", but she did not remember any conversation nor for sure if the applicant said anything to her at all. She knew, however, seeing the applicant standing there, that Belinda was dead. There came a time when she noticed a scratch on the applicant's hand between thumb and forefinger, but she did not know how that featured, save that there had been a conversation about it and the scratch stuck in her mind. She said that the applicant did not say that he had killed Belinda. (Subsequently, as she went on to say, David had described to her how he had killed Belinda with the applicant's assistance: but, as the judge had repeatedly warned the jury, that, and other evidence of a similar status, was not evidence against the applicant.)
13. As for later on 16 February, Annamari Weeks said she was at David's house. The applicant was there and told her that Belinda's body was in the shed, but she could not remember exactly what he said, and she did not know why this was not mentioned in her police interviews. She also spoke of seeing the applicant's boat in David's garden. The boat, although the applicant's, was kept at David's home, but the defendants disputed that it had been moved into the garden and said that it was still parked outside the house. The prosecution case was that it had been moved into the garden so that Belinda's body could be put into it without attracting attention. Later still that afternoon, she saw a convoy of David's car and trailer, followed by the applicant's Cavalier, leaving the house.
14. Towards the close of the trial, the last witnesses called by David for his defence, after the applicant's own case had been closed, ushered in an extraordinary episode. Two witnesses, Sarah Hughes-Brian and her partner Terence Hutchison, gave evidence that they had seen a woman answering Belinda's description walking along Purvis Gardens in the early morning of 16 February. Sarah Hughes-Brian was asked in cross-examination whether she had been paid for her evidence, but she reacted indignantly to this and the Crown were asked by the defence to confirm, which they did, that the question was not based on any information. However, these two witnesses were also asked whether they knew the applicant's daughter (David's sister) and another person (who were awaiting trial for attempting to pervert the course of justice in respect of this case). They denied knowing them. However, over the weekend adjournment, neighbours came forward, alerted by press coverage, to say that the witnesses were not telling the truth. On the following Monday the judge held a voire-dire in the course of which the witnesses admitted that they had lied. Sarah Hughes-Brian said that she had been paid £1,000, arranged through the applicant's daughter, for her testimony and Terence Hutchison admitted that he had provided his evidence at his partner's request. They did not, however, suggest that either defendant had anything to do with their giving evidence.
15. It was then agreed that the witnesses should be called again, this time by the Crown, to give their retraction to the jury, although on this occasion the names of the suborners were withheld. The judge warned the jury at once that they should not hold this development against either defendant, and he repeated his warning in his summing-up. The latter warning was in these terms:

"First, I direct you that you must totally disregard the evidence of Sarah Hughes-Brian and Terence Aitchison in so far as they said that they saw anybody walking along Purvis Gardens on Saturday the 16^th of February 2002 as they are self-confessed liars. Second, even if you accept Sarah Hughes-Brian's account that she was paid £1000 to give false evidence, I direct you that you do not hold either Defendant in any way to blame or to be responsible, directly or indirectly, for the false evidence that both Sarah Hughes-Brian and Terence Aitchison gave you last week. In addition, both Sarah Hughes-Brian and Terence Aitchison made it quite clear that they had not been approached by David Gibson to give false evidence. Third, I direct you that you do not conclude that either David Gibson or Leslie Gibson were responsible in any way for the payment of £1000. Sarah Hughes-Brian accepted that the sum of £1000 she received did not come from either David Gibson or Leslie Gibson.

Therefore, I direct you should not consider the behaviour or evidence of Sarah Hughes-Brian and Terence Aitchison as in way supporting the Prosecution case or in any way undermining the case of either Defendant. Misguided motives of others can give rise to situations like this. It would, therefore, be unfair to lay this attempt to bolster the defence at the feet of one or both of the Defendants. Finally, as I have told you earlier, I direct you that you must not speculate about who might have been responsible for the payment, or for the request to give false evidence, or who had requested Sarah Hughes-Brian to give false evidence. The reason for that direction, members of the jury, is that if you were to speculate that would only lead to injustice and so you must not do so."

16. In the meantime, however, following the retraction of these two witnesses' original evidence, applications had been made on behalf of both defendants to discharge the jury on the ground that this development had caused severe and irremediable prejudice to each. The judge refused these applications, although he reserved his reasons and gave them on 26 July 2004, after the jury had returned their verdicts.
17. At about this time, following the convictions, in the period pending the judge's consideration of the minimum sentences to be served by the defendants, the case took another extraordinary turn. David asked to be interviewed by the police and admitted that Belinda was indeed dead and that he had put her body into the sea. We have not been provided with a copy of the transcript of that interview, but we have been informed by Mr Lofthouse, junior counsel for the applicant at trial and counsel pro bono for him on this application, that in it David said that he had gone to sea alone and that he spoke of his father's role only in terms of helping him dispose of the body. It does not appear, however, that David was accepting responsibility for Belinda's death. The judge was informed of this development by 28 July 2004, when he added a postscript to his reasons for refusing the applications to discharge the jury.
18. Up to this point and throughout the trial both defendants had strenuously denied any role in Belinda's disappearance or death. They denied any discussion in advance of her killing. They denied the meetings at McDonald's or the cricket pavilion of which Annamari spoke. They insisted that they had seen Belinda leaving home on the morning of 16 February. They denied any disposal of her body at sea.
19. On 30 July 2004 the judge ruled on minimum sentences to be served. It seems that on that day, after the hearing, the applicant spoke to his counsel and solicitor and "it was clear that further consideration needed to be given to taking instructions". Nothing further, however, has been vouchsafed to the court as to the nature of what the applicant said that day to his legal representatives. At any rate, no full instructions were then taken from the applicant and that remained the position down to the time when his notice of appeal was lodged in the latter part of August 2004.
20. That notice was at that time confined to three grounds of appeal. The first was that the judge had erred in admitting the evidence of Annamari Weeks. The second was that the judge had erred in refusing the submission that the applicant had no case to answer. The third was that the judge had erred in refusing to discharge the jury from trying the applicant as a result of the evidence of Sarah Hughes-Brian and Terence Aitchison. There was at that time no application to admit fresh evidence from the applicant. In perfected grounds of appeal dated 15 November 2004 those three grounds remained the only grounds of appeal. However, in a perfected Advice of the same date Mr Lofthouse referred briefly to the post trial developments. He said "some instructions have already been obtained from Leslie, and we expect further instructions. We think it very likely that the result may be an application to adduce fresh evidence from Leslie. If so, such an application will be made as soon as possible."
21. In a further Note to Registrar dated 24 November 2004 Mr Lofthouse returned to the subject matter of fresh evidence from the applicant. He wrote that, on reflection, senior counsel at trial (Mr Vere-Hodge QC) and he considered that it would be better if this matter were resolved before consideration of the application for leave to appeal by the single judge. He continued –

"We consider that Leslie Gibson needs advice so that he can (if he wishes) give full instructions as to what he says about the case now. If there is to be a further proof of evidence, the taking of it would require great care and full knowledge of the case so far. Accordingly, we would respectfully ask for funding to be extended at this stage so that the solicitors who represented Leslie Gibson at trial can see him, advise him, and, if he wishes, prepare a proof of evidence…We have an indication already of what Leslie Gibson may say, but matters need to be very carefully investigated with him. It may be, of course, that in the event no application to adduce fresh evidence is made."

22. It appears that the matter was nevertheless considered by the single judge before any further evidence was forthcoming. Indeed, no fresh evidence was in existence at the time when the criminal appeal office summary dated 13 May 2005 was brought into existence – that makes no reference to the possibility of fresh evidence – nor at the time of Mr Lofthouse's skeleton argument for the hearing of the renewed application, which was dated 21 June 2005. That skeleton merely referred again briefly to the possibility of fresh evidence, and to the possibility that the hearing of the renewed application might be adjourned, at least in part, "so as to preserve any appeal on this basis".
23. It seems that, at an earlier hearing of which we do not have the transcript, the full court did adjourn the renewed application and granted the request for funding.
24. In the event it was not until 7 October 2005, essentially on the eve of the hearing date for this renewed application, that any new evidence was brought into existence. On that date a witness statement by Mr Roger Peach, a partner in the firm of solicitors who have been acting for the applicant at all relevant times, was made and forwarded to the criminal appeal office. That statement said that Mr Peach had seen the applicant and taken instructions from him prior to the service of the notice of appeal (in late August 2004) but had not as yet taken a statement from him. He added:

"I may say that we were reluctant to proceed further in any event (a) as we were expecting developments from the further police investigation, involving David Gibson going out with the police on a boat [to locate the body], and (b) because we wished to ensure that final instructions were taken from the Applicant only when he had had a full opportunity to consider his interests."

25. That was said in response to what seems to have been a query from this court at the previous hearing as to why full instructions were not earlier obtained pursuant to the trial representation order which did not expire until lodging of the notice of appeal. Mr Peach's witness statement concluded:

"Since then I have had a number of meetings with the Applicant, and there is now a statement before the Court. I respectfully invite this Court to grant leave to adduce this evidence."

26. Attached to Mr Peach's statement was a statement of the applicant, but that is neither signed nor dated. The applicant begins by referring to it as "my final statement". In it he essentially adopts a new defence. He now accepts that Belinda died on the night of 15/16 February and that her body was buried at sea by David. He agrees that he helped to dispose of the body by proceeding in convoy with David on the afternoon of 16 February, save that David went to sea in the boat by himself. He continues to deny however that the boat was moved from the tarmac to the garden. He also continues to deny any meeting at which there was planning for the death of Belinda. His account of her death is now essentially an attack on Annamari Weeks. He says that at 03.36 on 16 February, while he was at her house, he received a text from David to say that she had gone over to David's house. When he went over, suspecting trouble because Annamari had fallen out with Belinda, he found David carrying Belinda in his arms. He tried to revive her, without success. At some point David said "that bloody cow's killed her". He, the applicant, wanted to call the police, but it was Annamari Weeks who suggested "Can't we say she left, that she was always trying to walk off and kill herself." He wanted no part in this, but he was not sober and was not thinking straight. Fear of what David and Belinda's children might see come the morning led him and Annamari Weeks to carry Belinda's body to the shed. "From then on, the course we took seemed settled, as was my role. Because of my Son, I felt I could not change my position." However, "I just did not know what was going to happen next", and it was Annamari Weeks (or himself) who suggested the boat. She and he put the body in the boat. "She said something about taking her out fishing. It was obvious what she meant." As for how the death occurred, he could not be sure: "I do not know to this moment whether that had anything to do with David although I still cannot believe it did…I do not know if either Anna Marie Weeks or David had been involved with whatever caused the death, or both of them had been involved."
27. With this background, we turn to the grounds of appeal, both those formally before us and the implicit additional ground based on the application to admit the applicant's new evidence, if his unsigned statement can be so described.
28. At the hearing, Mr Lofthouse began with and placed particular emphasis upon the new evidence, possibly because the three existing grounds had been fully covered in his lengthy Advice as well as in his skeleton, possibly because in many respects the new evidence was a new beginning, superseding much of what had occurred at trial and destroying large amounts of the applicant's defence. However, it may be that strictly speaking the new evidence remained consistent with the attack at trial on Annamari Weeks' reliability, although it can hardly be said to be consistent with the application to discharge the jury on the ground of the prejudice caused by David's false witnesses. In any event we will begin by considering the applicant's original grounds and end with the new evidence.

Ground one: the admission of Annamari Weeks' evidence

29. Mr Lofthouse acknowledged that in law accomplice evidence can be admitted, provided an adequate warning is given to the jury as to the dangers implicit in the situation, in particular the possibility that Annamari Weeks was seeking to extricate herself from the continuing danger of prosecution by assisting the police with unreliable and tainted evidence: see R v. Pentonville Prison Governor, ex parte Schneider [1981] 73 Cr App R 200 and Chan Wai-keung v. Regina [1995] 2 Cr App R 194 (PC), cases which the judge at trial relied upon in his ruling. At one time it appeared that the burden of Mr Lofthouse's submission was that in the absence of a totally clear, formal and binding immunity from prosecution such as was described in R v. Turner (1975) 61 Cr App R 67, it was simply not open to the judge to admit Annamari Weeks' evidence: but ultimately Mr Lofthouse made it clear that his case on this ground was, as he put it in his skeleton, "focused on the exercise of discretion". Moreover, at the hearing he accepted that there was precedent for the terms of the NFA letters sent to Annamari Weeks, that formal immunity was not necessary, and even that he was unable to say that the judge had arrived at a decision which "no reasonable judge" could have reached. It was simply that a combination of all the circumstances made a conviction based so largely on the admission of her evidence unsafe.
30. As for the circumstances in question, Mr Lofthouse emphasised the convoluted history of Annamari Weeks' dealings with the police, the gravity of the matters admitted by her, the fact that she had not even been charged, the fact that the police had changed her status "dramatically" three times, the vagueness of the NFA letters, the vagueness and unreliability of her memory, the rerunning of lengthy interviews in January 2003 which Mr Lofthouse characterised as amounting to the coaching of a witness, the reliance by the Crown on legal professional privilege against full disclosure of the circumstances surrounding the CPS and police dealings with her and thus the absence of proper information as to the role and advice of the CPS.
31. In his ruling of 11 June 2004 the judge dealt very fully with all these submissions and the factual background to them. He set out that background, and referred to Schneider and Chan Wai-keung as guiding him in law. In particular he quoted Lord Mustill from the latter authority (at 202D) as follows:

"Once the courts have taken the large step, as they undoubtedly have, of recognising that circumstances may justify the calling of a witness who stands to gain by giving false evidence, it becomes impossible to say that what happened in the present case was necessarily contrary to the proper conduct of the murder trial. What was required was that the potential fallibility of [the witness] should be put squarely before the jury, and this is what was done."

32. So in the present case, the judge repeatedly warned the jury of the dangers implicit in Annamari Weeks' evidence, treating her as an accomplice. Strong warnings both introduced her evidence and concluded his summing up. No complaint has been made of that or any aspect of the judge's directions or summing up.
33. The judge also pointed out that Annamari Weeks' situation was less obviously one in which she had an incentive not to tell the truth than that of an accomplice who had actually been charged with offences and was awaiting trial (contemplated in Schneider).
34. The judge then dealt with three particular reasons why it had been submitted before him that this case was exceptional. The first was lack of full disclosure based on a claim for privilege. The judge, however, accepted the Crown's assurance that full disclosure had been given, saying –

"At this very early stage of the proceedings I have no reason to believe that there has not been full and proper disclosure given. In any event that matter can be and will no doubt be explored by defence counsel in cross-examination."

35. Mr Lofthouse repeated before us the submission that there had been lack of disclosure on the ground of privilege. When we asked him to explain to us what disclosure had been lacking he was unable to give us chapter and verse. The court therefore gave him a few days after the end of the hearing to provide the necessary details. We said that we would suspend our refusal of leave for this ground of appeal pending that period. In the event, Mr Lofthouse was unable to assist us further.
36. Secondly, the judge dealt with the complaint of vagueness in the NFA letters. But that, said the judge, was merely reverting to the basic issue of the reliability of Annamari Weeks's evidence, where all such matters would be before the jury together with the judge's warnings.
37. Thirdly, the judge rejected as a matter of fact, as totally lacking evidence in support, the submission that Annamari Weeks had been coached by the police.
38. In our judgment, we agree with the single judge that the trial judge had fully considered the arguments raised for excluding Annamari Weeks' evidence and that his reasoning could not be faulted. This ground of appeal raises no argument for reconsidering the judge's exercise of discretion on appeal.

Ground two: no case to answer

39. This ground of appeal was closely bound up with the same issue of the reliability of Annamari Weeks' evidence, but for these purposes that evidence had already been given and had been tested in cross-examination. To a large extent, therefore, this ground of appeal traversed the same territory as ground one but for these purposes it was scrutinised under the principles contained in R v. Galbraith [1981] 1 WLR 1039, 73 Cr App R 124 and R v. Shippey [1988] Crim LR 767.
40. The judge gave another careful and detailed ruling, on this occasion on 2 July 2004. He set out in detail the evidence that Annamari Weeks had given, taking care to confine himself exclusively to that which was relevant and admissible against the applicant (as distinct from David). The essence of that evidence has been set out above. He took into account, in addition to the defence points which had been made in the context of ground one, Mr Vere-Hodge's submissions that in a number of important respects her evidence in relation to the applicant had changed; and that there was no independent evidence of the applicant's presence or comments at the meetings at McDonald's or the cricket pavilion. However, bearing all these points in mind, he nevertheless concluded that the jury could properly be satisfied that there was at least some form of agreement between David and the applicant to deal with killing Belinda and disposing of her body; and that the applicant lent his aid or encouragement to David on the night of 15/16 February pursuant to that agreement; and thus that the applicant was guilty of murder.
41. In our judgment, it is impossible to fault the judge's ruling. It seems to us that he was right to say that the application was really an attempt to persuade him to usurp the function of the jury which was to determine whether the evidence of Annamari Weeks was reliable. He added that, having listened to her evidence for two and half days, he was left for himself with the clear view that her evidence was capable of belief. The jury should therefore be left to determine which parts of her evidence, if any, they should accept and which parts they should not accept. Finally, he said that he would have reached the same conclusion, that there was a case to answer, simply on the basis of the untruthful accounts given by the applicant when he was charged.
42. Mr Lofthouse also suggested, in a somewhat throw-away submission, that the judge had rejected the application on a mistaken basis of what could amount to complicity in murder: mere presence at a discussion and lack of protest, or mere complicity in the disposal of a body could not amount to murder. However, it is perfectly clear from the directions given to the jury by the judge in his summing-up, about which no complaint is made, that he was very well aware of what was needed for the applicant's conviction on the charge of murder; and his ruling on the submission of no case to answer, albeit more briefly, reflects that same understanding.
43. In short, there is no arguable basis upon which this ground should go to appeal.

Ground three: the evidence of Sarah Hughes-Brian and Terence Aitchison

44. Mr Lofthouse submitted that the retraction of their evidence, especially coming when it did, just before the final speech on behalf of the applicant, was nothing short of catastrophic. He accepted that, for good reasons or bad, the applicant had acquiesced in a joint trial; and that it was another question for the exercise of the judge's discretion. However, he submitted that the evidence had a wholly unbalancing effect on the trial; the jury may have wrongly thought that, if Belinda was dead, she had been murdered; that it was totally unfair that the applicant, who had not even cross-examined these witnesses, should be tarred with the same brush that blackened David, who had called them; and that this went way beyond one of those risks which have to be suffered in joint trials and amounted to the effective loss of a fair trial for the applicant. There was therefore only one answer open to the judge, and he had come to the wrong one.
45. The judge, in the reasons which he gave on 26 July 2004, delivered a third careful and detailed ruling. It is not suggested that he erred in law or by omission or otherwise, simply that he had come to the wrong answer. He gave four main reasons for his conclusion. First, father and son had been quite properly jointly indicted, and any backlash from a co-defendant's witness was just one of those things: as where a co-defendant's alibi witness blows up on cross-examination. Secondly, the two witnesses had been called by David and not the applicant, whose case had already been closed: there was therefore no real danger of prejudice to him. Thirdly, if, which the judge did not accept, the applicant were in danger of being prejudiced by David's case, then he would already have been gravely prejudiced by the admitted lies which David had had to accept, the detail of which it is unnecessary to set out here, but included fabrications of people being in contact with Belinda after her disappearance. Fourthly, the judge in any event concluded that any prejudice could be removed by a careful direction as to how the jury should regard the two witnesses' evidence. We have already set out above the strong directions which the judge included in his summing-up.
46. In our judgment, these reasons cannot be faulted. The judge was fully justified in declining in his discretion to discharge the jury. There is no arguable case to the contrary to go to appeal.
47. For good measure, after the judge had heard of David's post-conviction volte-face on the question of Belinda's death that night, he added by way of postscript to his ruling a fifth reason: for if Belinda had already died, she could not have been seen walking down Purvis Gardens later that morning. The applicant's new evidence merely underlines what to our mind is an additional fundamental difficulty with saying that the judge's failure to discharge the jury on the basis of the witnesses' truthful retraction of their evidence rendered the applicant's trial unfair or his conviction unsafe.

The new evidence

48. That brings us to the applicant's new evidence. Mr Lofthouse submits that this is one of those possibly rare cases where a defendant's own new evidence should be admitted, under the wide provisions of section 23 of the Criminal Appeal Act 1968. Ultimately, the test under that section for receiving new evidence is if it is "necessary or expedient in the interests of justice to do so". He cites R v. Criminal Cases Review Commission ex parte Pearson [1999] 3 All ER 498 for the relevant principles. There, an applicant was convicted of murder and her application for leave to appeal against conviction was dismissed. Some years later she asked the Home Office to refer her case to the court of appeal on the ground of diminished responsibility, a ground not put forward earlier but now supported by a psychiatric report. In due course her case was transferred to the CCRC. Under section 9 of the Criminal Appeal Act 1995, which established the CCRC, it was not permitted to refer a case to the court of appeal unless it considered there was a "real possibility" that the conviction would not be upheld. The CCRC declined to refer on the ground that there was no likelihood of the court of appeal receiving the new evidence. The applicant sought judicial review. The divisional court's judgment was given by Lord Bingham of Cornhill CJ. He held that the CCRC had rightly sought to anticipate whether there was a real possibility of the court of appeal receiving the new evidence, that there were no grounds for impugning its decision and that the application would therefore be dismissed. In the course of his judgment Lord Bingham referred to previous cases in which fresh evidence from the applicant himself had been considered.
49. Thus in R v. Richardson (1 February and 9 May 1991, unreported, see also R v. Arnold (1996) 31 BMLR 24) an applicant had given no evidence at trial and agreed that witnesses who might have assisted him should not be called. He had not been honest with his legal representatives at trial. McCowan LJ said:

"On the one hand, this is a case of a man who has advanced an admittedly lying defence and it having failed now wants to try another one. The court is extremely reluctant to lend any assistance to that sort of purpose. Indeed it could only be in an exceptional case that it would do so. On the other hand, we have to consider whether there is a risk that by reason of his own stupid lies a miscarriage of justice may have occurred…"

50. The court there decided to receive the fresh evidence and thus allow the application. In the event a retrial was ordered.
51. In R v. Borthwick [1998] Crim LR 274 the judgment of this court was given by Waller LJ, who said:

"The wording of s 23 poses the question right at the outset whether it is necessary or expedient in the interests of justice to admit evidence in this court. We are very much alive to the fact that this court must not allow evidence to be admitted at this stage simply in order to allow the defendant to run a different defence in front of a second jury, particularly a defence that he could well have run the first time around. But equally, if there was overwhelming or clear evidence to demonstrate that a defence of diminished responsibility would have succeeded and there was clear evidence that the mental illness itself was a cause of a decision taken to run such defences as were run, or putting it another way not to run the defence of diminished responsibility, then the interests of justice would seem to require possibly the substitution of a verdict of manslaughter but at least to order a retrial."

52. Lord Bingham concluded (at 517) as follows:

"From that lengthy recital of authority, it is plain that all applications to adduce fresh evidence under s 23 turn on their own peculiar facts…But the cases do identify certain features which are likely to weigh more or less heavily upon the reception of fresh evidence: for example, a deliberate decision by a defendant whose decision-making faculties are unimpaired not to advance before the trial jury a defence known to be available…But even features such as these need not be conclusive objections in every case."

53. In the present case the applicant could always have presented the case which he now wishes the court to consider on this application. Moreover, such a case would have been consistent with the submissions made on his behalf and his own evidence at trial which were that Annamari Weeks was lying and had her own interests to pursue. Instead he preferred to lie to his legal representatives and to the jury about the charade that Belinda left her home alive that night. When David's witnesses blew up in his face at the end of the trial and he was convicted, he at any rate recognised the need to admit to Belinda's death and the disposal of her body. The applicant, however, at that time kept his cards very close to his chest. We do not know what preliminary instructions he gave to his legal representatives: we only know that he was plainly not willing to make a further statement until he had had the opportunity to consider matters in detail together with his legal advisers, including whatever further information might arise out of any possible recovery of Belinda's body. If, like David, he had been willing to make a further statement at any time before the lodging of his notice of appeal, his trial legal aid would have extended to the representation he might have needed for the purposes of that statement. As it was, his new evidence only emerged at the last moment. The material cited above also makes clear that it was always possible that there would be no application to adduce any new evidence.
54. There is no credible explanation of why the applicant's new case was not run at trial. It is simply said that a decision had to be made on the spur of the moment as to what to do with Belinda's body; and that he, the applicant, had to consider what was best to do for his son. However, in circumstances where the new finger of accusation is levelled at Annamari Weeks and the applicant still seeks to exculpate his son, where in any event he did not know that his son was guilty of an attack on Belinda and says he still believes he did not, where he always wanted to call the police and was dissuaded from doing so by Annamari Weeks herself, it does not make sense that he persisted in his false account down to and throughout the trial. Once the body was in the shed, the participants had time to decide what to do. The applicant did not have to participate in the disposal of the body. Even if he did, it was not until 8 March 2002 that the disappearance of Belinda came to the attention of the authorities. There was time for him to consider his position. The obvious inference is that the applicant lied at trial and is lying again.
55. On the other hand the jury clearly thought that the evidence of Annamari Weeks was not only credible and reliable but satisfied them so as to be sure of the applicant's guilt. While the case against David was the more formidable, the case against the applicant very largely rested on her evidence that there had been prior planning of Belinda's death. It is submitted that her evidence of a discussion of murder at a McDonald's restaurant – even though both the applicant and David were hard of hearing (of which there was evidence) – is an exceptional feature casting doubt on her credibility: but that was a typical matter for the jury to consider.
56. In our judgment the new evidence does not appear to be capable of belief and there is no reasonable explanation for the failure to adduce it at trial (see section 23(2)(a) and (d)). There are no exceptional features that lead us to think that, in the light of the applicant's new case, his conviction may possibly be unsafe. In sum, we do not think that it is necessary or expedient in the interests of justice for the fresh evidence to be received. Therefore the application for leave to appeal based on the possibility that this evidence would be received is refused.

Conclusion

57. We have concluded that none of the applicant's proposed grounds of appeal supports the grant of leave to appeal. It was for these reasons that this application was refused.