Court of Appeal in Northern Ireland Decisions

1. James Edward Shaw and William Gordon Walker Campbell were convicted on 9 February 2000 at Craigavon Crown Court after a trial before McCollum LJ and a jury of the murder of Timothy Robert George Sullivan, and were each sentenced to imprisonment for life. The judge recommended that Shaw should serve a minimum of twenty years. Both sought leave to appeal against the conviction. The single judge refused leave to appeal in Shaw’s case, but gave Campbell leave to appeal on one specified ground. For convenience we shall nevertheless refer to both in this judgment as “the appellants”.

2. On 4 February 1996 human remains were found at the bottom of a deep gorge near Hullstown Lane, Derriaghy, Co Antrim. They consisted of a number of scattered bones, from which all the tissue had rotted or possibly been eaten away, except a number of hairs embedded in a wound in the skull. No remnants of any clothing were found. The remains were classified by the pathologist who examined them as being those of a female, and the police search concentrated, unsuccessfully, on missing females. It was only when they received information on 15 July 1998 from one Graham Stewart that the body was identified by dental records as being that of Timothy Sullivan, otherwise known as McFadden.

3. The story which Stewart related was, as the judge rightly said to the jury, extraordinary. He was detained in Hydebank Young Offenders Centre between 8 September 1995 and 17 September 1996. James Shaw, whom he had known fairly well some four or five years earlier when they lived in the same area, was detained on remand in Hydebank between 30 October and 6 December 1995. Stewart told the police that during that time he and Shaw talked together and Shaw told him that he had killed Sullivan with a hammer, because he believed that Sullivan had informed on him over a robbery in which both had been concerned, stripped the body and disposed of it by rolling it down a hill and sinking it in a marshy area.

4. It was established that a robbery took place at the Lighthouse Hostel, Ballymena in the early hours of 3 December 1994. The same day two men, James Shaw and Timothy Sullivan, were arrested and interviewed about the offence, which they both denied. Dawn Carol Moorehead, who was then living with Shaw and subsequently married him, was interviewed, but averred that Shaw and Sullivan had both been in her company at the time of the robbery. Then Sullivan was arrested on 31 January 1995 and interviewed. Following that interview Shaw and Sullivan were charged with armed robbery and remanded in custody, subsequently being granted bail subject to conditions. Hargan was then charged with handling and deception. All three defendants were returned for trial at a preliminary enquiry on 22 June 1995 and arraigned on 25 August 1995. Each pleaded guilty and was released on bail. Sullivan, who was staying with his grandfather in Antrim pursuant to the conditions of his bail, was reported missing following this court appearance and no trace of him was found until his body was later discovered. Shaw and Hargan were sentenced on 6 December 1995, after Shaw had spent a period on remand in Hydebank following the revocation of his bail. He was given a suspended sentence and Hargan was put on probation.

5. The evidence which linked Shaw with the murder was that of Graham Stewart, his wife Dawn Shaw, Christopher Southam and Alexander Keenan. The only evidence directly linking Campbell with the murder was that of Dawn Shaw. Neither defendant gave evidence and no witnesses were called on behalf of either. We shall set out a summary of the evidence of each of these Crown witnesses, but because of the conclusions which we have reached and the disposition which we propose we shall keep our discussion of that evidence to a minimum.

6. Graham Stewart said in evidence that he saw Shaw regularly when they were both in Willow House in the YOC. One morning about 9 am they were on the landing along with another person named John Taylor when Shaw commenced to talk about the offence with which he had been charged. He told them that he killed Timothy Sullivan because he had “touted” on him about this offence, in which he had participated. Sullivan had been in Shaw’s house at Milltown Crescent, Derriaghy. As well as Shaw and his wife another man, whose first name Stewart gave in cross-examination as Johnny or Jimmy, was present, and they were drinking. Shaw asked Sullivan to go for a walk and they set off together, along with the other man. When they came to a clearing Shaw produced a hammer and hit Sullivan over the head, and Sullivan fell to the ground. Shaw knelt down over him and started hitting him on the head with the hammer. Sullivan, according to the account, was “shaking, taking spasms”. The two men stripped him of his clothes, then left the body and took the clothes back to Shaw’s house, where they burned them and also burnt the hammer. They went back and found him curled up. They rolled his body down the hill into a “marshy-swampy type thing”, where they jumped up and down on it to try to sink it down into the mud.

7. Stewart said that a few days after Shaw gave him this account he heard on the news about a body being found in Derriaghy. He added that Shaw also told him that Sullivan went down to the Shore Road and phoned his grandfather to tell him he would be home “at whatever time” and would not be long, as he was catching the next bus home.

8. It was established in cross-examination that Stewart had been convicted of no fewer than 65 criminal offences, including strange behaviour with his girlfriend Angela Woodage and another girl, whom he had held prisoner in a field with their hands tied. He had also made a home-made gun, though he denied intending to commit any offence with it. He had been treated in Holywell Hospital for depression and had attempted suicide on a couple of occasions. He had taken cannabis and at one time was admitted to hospital when he had hallucinations and heard voices after drinking a litre of vodka. He agreed with defence counsel that although he heard that the body found at Derriaghy was that of a female, he thought that he knew that it was Sullivan’s some time before he went to the police in July 1998. He had told his mother about Shaw’s revelations, and she had advised him to consult his solicitor. He informed the court that he had told a woman from the firm of solicitors then representing him, but she had advised him to forget about it. He was unable to give the court her name. When he told his girlfriend in July 1998 she then persuaded him to go to the police.

9. Christopher Southam said in evidence that he had met Shaw when Shaw came in to Hydebank YOC and had got to know him. He told Southam about the robbery for which he was in the YOC, that his co-accused had “touted” on him and that he and another person gave the co-accused a beating. About a week later he told Southam that he had “stiffed” the co-accused, and that he had beaten him round the head with a hammer, the witness thought in a flat in Derriaghy. After they had done that they chucked the body down a drain, trying to remove identifying features by destroying the hands and teeth. Shaw said to him that he burned his own clothes and those of the victim and mentioned that he had taken a ring from the body.

10. On a later occasion Shaw saw Southam and asked him to make a statement to his, Shaw’s, solicitor to discredit Stewart by telling him that he was a “nut case” who could not be believed. Southam said that subsequently Shaw’s solicitor did come to see him, but that he did not make the requested statement.

11. In cross-examination it was established that he had committed serious criminal offences and was then in prison for arson. He was regarded by some as an alcoholic. He had cut his wrists three times with the object of getting an easier sentence. He admitted that he was good at fabricating the truth and had on occasions attempted to make deals with the police to give them information in return for an easier sentence.

12. Alexander William Keenan was aged 18 years at the time of trial. He stated that when he was about 14 years, in or about the year 1995, he was in Shaw’s house at Lissue Crescent, Lisburn, near his own house, with a youth of about 17 named Lee Wright, drinking with the others. It was the first time he had been in the house. Shaw told them that he had murdered somebody, and when they expressed amused disbelief said that he would take them to “it”. He said that he had hit the victim, whose name was Timothy or Tim, on the head with a hammer.

13. They then left the house and walked to a laneway on the Derriaghy Road. It was a long walk, which took about an hour and a half. It was pitch dark when they got there. About 100 yards along the lane Shaw stopped and said “It’s down there”. Shaw and the witness went about half way down a very steep slope, then returned. Keenan said that he did not want to see it, whereupon he said that Shaw called him a faggot. The group then went to a house in Milltown Crescent. Shaw forced an entry, saying that he used to live there and wanted to see if there was any mail for him.

14. Keenan said that this had occurred during the school holidays, he thought during the summer, as it was getting dark about 9 pm. At that time he went out drinking two or three nights a week, and was frequently drunk. He had thrown stones and broken windows a couple of times, but had no criminal convictions. He had not reported this encounter to the police, for he said that he was afraid of paramilitary involvement, but they came to see him and he made a statement on 13 December 1999. He knew Dawn Shaw, who was in the house the night of the incident he retailed. He did not know where Lee Wright was.

15. We turn then to the evidence of Dawn Shaw, which was the centrepiece of the case against both defendants. It occupied a considerable length of time at trial, and she was cross-examined extensively. The learned trial judge set out her evidence in his full and careful summing up and no complaint was made by defence counsel about the accuracy and comprehensiveness of his account of her testimony. For the purposes of the present proceedings we do not regard it as necessary or appropriate to set out more than an outline of Mrs Shaw’s evidence.

16. Dawn Shaw was born on 18 April 1977 and is still only 24 years of age. She had known Shaw since childhood and started to go out with him when she was 15. She became pregnant when she was 16 and had her first child in February 1994. She was married to him in August 1995 and now has four children by him. He has commenced proceedings for divorce. They lived for a short time in a house in Milltown Avenue, Derriaghy, then in Ballymena. It was while they were living in Ballymena that Shaw committed the armed robbery in the hostel. They lived for a while with her sister in the Old Warren estate in Lisburn, then moved to Milltown, Derriaghy, where they got a house at 24 Milltown Crescent.

17. On 25 August 1995, the day of the preliminary enquiry, at which Shaw and Sullivan had to appear at Crumlin Road Courthouse, both men walked from the court to Milltown Crescent, although Sullivan was supposed to be going to his grandfather’s house in Antrim, in an altogether different direction. They went out for a carry-out of drink and returned with beer and vodka, bringing with them Billy Campbell, who lived directly across the road. Shaw told her that Sullivan had telephoned his grandfather, to tell him that he was at a party in Shore Road, Belfast. It was established that two calls were made by Sullivan to his grandfather at about 7.30 and 7.40 pm.

18. Other people joined the party and by 9 pm there were seven people in the living room. Some time after that, according to Mrs Shaw’s account, Shaw called her over and said to Campbell in her presence “Aren’t we going to do him in?”, to which Campbell answered “Yes”. Shaw had been complaining for some time to Dawn about Sullivan telling the police that they had done the robbery.

19. They carried on drinking and Dawn went to bed some time after 1 am, leaving Shaw, Campbell, Sullivan and Campbell’s mother in the living room. She woke up early in the morning, when it was light, and went downstairs to get a drink of water. She heard Shaw and Campbell coming into the house. Campbell had blood all over his face, hands and clothing. Shaw came downstairs, also with blood on his clothing. He was carrying a claw hammer with a wooden shaft up his sleeve. Campbell had something like a poker up his sleeve. The two men went across to the back of Campbell’s house and Dawn saw smoke rising from there a couple of minutes later. After lunch time the same day Shaw said to her words to the effect “I wonder if anybody has found him”.

20. That evening Campbell came to Dawn’s house with a black bag “full of stuff” and a shovel. In bed that night Shaw gave her an account of what had taken place the previous night. He said that after she went to bed he and Campbell persuaded Sullivan to come out with them, telling him that they were going to a party. They went down the lane beside the coal yard about 15 minutes from the house. Shaw swung the hammer and hit Sullivan on the shoulder. He went down, then Shaw hit him on the back of the head. The two men kept hitting him. They went back the next day after dark and stripped the body of all clothing. They rolled it down the hill, but did not need to bury it, because it was all marshy. They more or less jumped on his body until it went into the marsh.

21. When Shaw was arrested in August 1998 Dawn was arrested along with him and interviewed by the police. She maintained a steadfast denial through a series of interviews lasting a total of thirteen hours over two days of having any knowledge of the death of Timothy Sullivan or of her husband’s having any connection with it. She claimed in her evidence that she did so because she was in fear of her husband. The defence point to her ability to sustain a false story in the face of prolonged questioning, and contend with some justification that that this demonstrated a degree of determination and ability to conceal the truth when she wished to do so. It was also suggested that hearing Stewart’s allegations during the interviews gave her the apparently convincing material for a false story to give in evidence.

22. Mrs Shaw admitted that she had had an affair with Campbell when her husband was in the YOC in 1995. She slept with him again on one occasion in April 1998. She had also had a relationship with a man called John when she was 17. A number of discrepancies between her evidence in court and her statement to the police were brought out in cross-examination. She was also tackled about a number of detailed points, which gave rise to certain inconsistencies. She was pressed about the conversation in her living room about doing in Timmy Sullivan, who was sitting close by, and maintained that it was held in a whisper.

23. A number of grounds of appeal were contained in the notices of appeal, but at the hearing before us the following were the main issues argued:

24. Other grounds were argued, some of which might otherwise merit discussion, but in view of the conclusions which we have reached on the above issues we do not propose to deal with them.

25. It is clear from the terms of the earlier part of his charge to the jury that the judge had formed the opinion that on the facts of the case and the way that the defence was mounted it was unnecessary for him to enter into extended instruction on the elements of the law of murder or joint enterprise. He also took the view that he should not leave the lesser offence of assisting offenders, since he regarded the case against Campbell as being one of murder or nothing. At pages 5 to 6 of his charge he directed the jury in the following terms:

26. Counsel for the appellants submitted that the judge was in error in failing to give the jury any formal instruction on the ingredients of the crime of murder. It is stated in Archbold, 2001 ed, para 4-376 that it is usually necessary for a judge to set out, at least in outline, what the Crown must prove in order to establish that a particular offence has been committed. The decision in R v James [1997] Crim LR 598 is cited as authority for this proposition, but the text of the judgment in that case does not express any qualification on the absolute nature of the judge’s duty. A more positive obligation to define the ingredients in every case is contained in R v McVey [1988] Crim LR 127. The Crown’s riposte was that it was unnecessary pedantry to require that in the present case, since it was entirely obvious that the victim was attacked with murderous intent by someone, and that the true issues lay in the connection between the appellants and the attack upon Sullivan. There is as a matter of common sense a good deal to be said for the view advanced by the Crown, but we do nevertheless consider it advisable for judges to set out the ingredients of the crime in every case, even if they follow it up by suggesting to the jury that they should encounter no difficulty in finding those matters proved on the facts before them. In the present case we should be prepared, if the appeal turned upon the point, to hold that the absence of such a direction did not of itself make Shaw’s conviction unsafe.

27. Different considerations arise, however, in Campbell’s case. Mr Gallagher QC submitted on his behalf that it was essential for the judge to explain to the jury the law relating to joint enterprise, since they might have rejected Dawn Shaw’s evidence about the conversation between the appellants in her house about doing Sullivan in. In that event the extent of his participation in the fatal attack on Sullivan would have become crucial, for it was possible that the jury might not have been satisfied that he took an active part in it or foresaw that Shaw might go beyond a punishment-style beating into a murderous attack. Relying on these factors, he argued that there was a real possibility that they might conclude that he was not guilty of murder, but only of the lesser offence of assisting the offender Shaw, and that the judge was in error not to leave that possibility to them.

28. The law relating to the requirement to leave lesser offences to the jury for their consideration was reviewed in R v Maxwell [1990] 1 All ER 801. The defendant did not dispute that he had hired two other men, who pleaded guilty to robbery, to enter his former partner’s house and retrieve certain computer discs to which he claimed to be entitled. They did so enter the house, armed with offensive weapons, and used violence towards the occupants. He advanced the defence that he did not contemplate violence, and that he was only guilty of the offence of burglary. The prosecution declined to add a count of burglary and opposed leaving that offence to the jury, contending that the crime was always intended to be a robbery and that it was not a burglary which had gone wrong. The judge agreed and left only the offence of robbery, declining to leave burglary or theft to the jury. The Court of Appeal and House of Lords dismissed the defendant’s appeal.

29. Lord Ackner, who gave the leading speech in the House of Lords, held that the prosecution was entitled to decline to introduce a count of burglary. He then dealt with the argument that the judge should have directed the jury that they could, if they acquitted the defendant of robbery, convict him of the lesser offence of theft. He expressed agreement with the terms of the judgment of Mustill LJ in R v Fairbanks [1986] 1 WLR 1202 at pages 1205-6. In that passage Mustill LJ quoted from the judgment of Phillimore LJ in R v Parrott (1913) 8 Cr App R 186 at 193:

30. Mustill LJ went on to say:

31. The Court of Appeal in R v Maxwell looked afresh at the statements in R v Fairbanks, some of which had been the subject of criticism, and stated in a passage of its judgment expressly approved by Lord Ackner:

32. In concluding his speech Lord Ackner said at page 807 that the test to be applied by the Court of Appeal in such a case is as follows:

33. Counsel for Campbell also drew to our attention the decision of the Privy Council in Von Starck v R [2000] 1 WLR 1270, in which Lord Clyde said at page 1275 that it is the judge’s duty to place before the jury all the possible conclusions which may be open to them on the evidence presented in the trial. We note, however, that neither R v Maxwell nor R v Fairbanks was referred to by the Board or cited to it.

34. It was argued on behalf of the Crown that this test was not satisfied in the present case, where there was, it was submitted, ample evidence to justify the conviction of Campbell for murder. It seems to us that the test is material where the possible alternative is a relatively trifling offence, consideration of which would only distract the jury. It is clear from the terms of the passage which we have quoted from Mustill LJ’s judgment in R v Fairbanks that other considerations may require a lesser offence to be left. In the present case it does appear that it was a tenable possibility that the jury might reject the evidence of Dawn Shaw about the conversation in her house, in which event the jury would need direction about the matters requiring proof if Campbell was to be convicted of murder on the basis of having taken part in a joint enterprise. In such event they might have acquitted him of murder, though finding him guilty of assisting the offender.

35. The judge may have taken the view that since Campbell made the case in cross-examination that he had nothing to do with the attack on Sullivan, the lesser verdict did not arise, the more so since his counsel did not mention the possibility in closing or requisition the judge on the issue. Mr Gallagher met this by stating that he had expected the judge to mention the possibility of the lesser verdict (though there does not appear to have been any discussion on the issue between the judge and counsel before the closing speeches), that Crown counsel had referred to it in his closing, and that he had been reluctant to run an alternative case which was inconsistent with his main defence (a point discussed by Lord Clyde in Von Starck v R [2000] 1 WLR 1270 at 1275). He submitted that it was for the judge to ensure that all material issues were placed before the jury, even if not argued overtly by him in closing.

36. We feel impelled to agree with this submission. For the reasons which we have stated, we are of the opinion that the case does not fall within the category of those in which the issue does not arise in the way in which the case has been presented to the court. It is not one in which Campbell has admitted that the offence was committed. The possibility was there that he took some lesser part in the affair than full complicity in murder, and that possibility was not removed by his denial that he had anything at all to do with the attack. We therefore must conclude that the judge should have left the lesser offence to the jury and given them an appropriate direction on the law relating to joint enterprise.

37. This conclusion is sufficient to determine the appeal in Campbell’s favour. The issue of the need for a warning in respect of the evidence of Dawn Shaw is relevant to his case as well as to that of Shaw, but we shall focus on the submission made on behalf of Shaw, that the judge should have given a warning not only in respect of her evidence, but also in relation to that of Stewart, Southam and Keenan.

38. Under the former law the judge was under a mandatory duty to warn the jury that it was dangerous to convict on the evidence of certain specified types of witness without corroboration, which he then had to define and identify. That obligation is no longer mandatory, but it is still necessary for a judge to consider whether he ought to warn the jury about accepting such evidence and in what terms he should do so. The issue was considered in R v Makanjuola [1995] 3 All ER 730, and in the course of giving the judgment of the Court of Appeal Lord Taylor CJ discussed the necessity for warnings about the evidence of other types of suspect witness. He said at pages 732-3:

39. In his summary at page 733 he set out the law material to this aspect of the case in proposition (3):

40. The principle has been applied in cases ante-dating the abolition of the mandatory corroboration rule to witnesses who may be regarded as having some purpose of their own to serve ( R v Beck [1982] 1 All ER 807) and witnesses whose evidence is unreliable because of their mental condition ( R v Spencer [1987] AC 128). It is clear from the terms of May LJ’s judgment in the Court of Appeal in R v Spencer [1985] QB 771 that the court regarded it as virtually mandatory to give a warning in some form in respect of witnesses who are persons of bad character. He referred to the need, where the witnesses were of suspect reliability, as in the case before him, to warn the jury appropriately of the special need for caution, explaining to them if required why such caution is required. In Chan Wai-keung v R [1995] 2 All ER 438 at 446 Lord Mustill, giving the judgment of the Privy Council, stated that what is required is that the potential fallibility of a suspect witness’s evidence be put squarely before the jury. Lord Ackner emphasised in R v Spencer that there is no magic formula which has to be used nor any set words which have to be adopted. Rather must the good sense of the matter be expounded with clarity and in the setting of the particular case, and the summing up should be tailored to suit its circumstances. If sufficient warning is not given in the circumstances of any case the verdict may be set aside as unsafe. The court will, however, be disinclined to interfere with a trial judge’s exercise of his discretion save in a case where that exercise is unreasonable in the Wednesbury sense: R v Makanjuola [1995] 3 All ER 730 at 733, per Lord Taylor CJ.

41. Graham Stewart was clearly a man of very doubtful character, with many criminal convictions and a history of strange behaviour. These factors should certainly have made the jury examine his evidence with care to see whether it could be relied upon. The judge fully and fairly brought out the weaknesses in Stewart’s evidence and in his character, so that the jury had these clearly before them. There was no factor which a jury might fail to appreciate, such as lay behind the former rule requiring corroboration of accomplices and other classes of witness. In our judgment the difficulties about accepting his evidence were put squarely before the jury and they did not require any more generalised warning about the need for caution, which was quite evident from the terms of the judge’s charge.

42. Christopher Southam was also a witness whose evidence had to be approached with caution. He had a bad record and some history of possible alcoholism. He had attempted suicide with the object of getting an easier sentence. There was material from which it might readily be inferred that he was manipulative and prepared to make deals with the police to give them information in return for a reduction in sentence. The judge brought these matters out in his summing up, and stated at pages 94-5:

43. Again, it is possible to suggest that this could have been strengthened by a specific warning of the need for caution, but the judge has referred to the factor which created such a need, the witness’s readiness to take steps which might help him, which might have extended to giving false evidence. On balance we incline to the view that the judge’s directions were sufficient in the circumstances.

44. Alexander Keenan’s evidence was similarly of suspect reliability and accuracy. The judge dealt fully and fairly with all the difficulties which appeared in his evidence, and left the jury with a properly balanced account of what he said and the problems which they might have in accepting it as a reliable and correct history. There were no features which might have caused the jury to fail to appreciate the need for caution, and we consider that the judge brought out sufficiently the adverse features.

45. The evidence of Dawn Shaw was of substantial importance to the case against James Shaw and crucial in Campbell’s case. There was accordingly an especial need for the jury to receive a balanced picture of the strengths and weaknesses of her evidence and any necessary warnings about accepting it. The learned trial judge gave a very full and carefully detailed account of her evidence, and we found no omissions from his lengthy survey of her testimony, nor did counsel put any before us. The question is whether the factors which point to the need for caution in accepting her evidence were sufficiently spelled out to make a conviction of either appellant, so dependent on her evidence, properly safe. The weakening factors relied upon by the appellants’ counsel were the following:

46. We are inclined to agree with the appellants’ counsel that some form of warning was necessary, as Mr Kerr QC for the Crown was disposed to accept. The question then is whether in setting out the strengths and weaknesses of her testimony the judge gave a sufficiently clear and direct warning. In the concluding passage of the portion of his charge dealing with Mrs Shaw’s evidence, at page 86, he asked the jury if they thought that she was telling the truth. He then went on at page 87:

47. In a couple of places in later parts of his charge the judge told the jury to consider whether they believed the several Crown witnesses upon whose evidence we have focused, but did not give any more specific warning about the need for care in evaluating that evidence. We have read and re-read the charge with anxious care. We feel compelled, not without reluctance, to conclude that a more specific warning was required to draw to the jury’s attention the possible weaknesses in Dawn Shaw’s evidence, which they might either have failed to appreciate or might have overlooked in the quantity of detail which they had to consider.

48. It might also be said that although the direction in respect of each of the witnesses taken individually may have been sufficient, when the Crown case was based so centrally on a collection of witnesses whose evidence was all capable of being attacked as suspect, the judge should have reviewed the overall strength of that evidence and issued a warning. We have considered this point, but in view of our conclusions we do not propose to express a view on it.

49. We therefore shall grant Shaw’s application for leave to appeal, allow both appeals and set aside the convictions. Having considered the submissions of counsel, we have concluded that it is a proper case for a new trial, and we so order.