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Neutral Citation No. [2012] NICA 27	Ref:	COG8497

Judgment: approved by the Court for handing down	Delivered:	29/06/12
(subject to editorial corrections)

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

________

THE QUEEN

-v-

WILLIAM MAWHINNEY

_______

Before: HIGGINS LJ, GIRVAN LJ and COGHLIN LJ

______

COGHLIN LJ (delivering the judgment of the court)

[1] On 1 December 2010 the appellant in this case, William Mawhinney, was convicted by a majority verdict of the murder of his former partner, Lorraine Mills, on 28 May 1995. On 26 January 2011 he was sentenced to life imprisonment by Weir J who specified that he should serve a minimum period of 12 years imprisonment in accordance with the provisions of Article 5 of the Life Sentence (Northern Ireland) Order 2001. The appellant was represented by Mr Patrick Lyttle QC and Mr Barry Gibson while Mr Ciaran Murphy QC and Mr David Russell appeared on behalf of the Director of Public Prosecutions. The court wishes to acknowledge the assistance that it has derived from the written and oral submissions of counsel.

Background facts

[2] On Sunday 28 May 1995 Lorraine Mills, who was at that time the partner of the appellant, drowned in a bath at premises at 18 Staffa Drive, Ballymena. There were two children of the relationship between the appellant and Ms Mills. At the time of her mother’s death KK, who was born on 16 September 1988, would have been some 6 years of age. Her sister, J, was several years younger, having been born on 4 November 1991. T, who had been born with a number of severe physical difficulties, required feeding by way of a gastric tube into her stomach and needed full time attendance.

[3] For some time prior to her death Lorraine Mills had suffered from severe alcohol dependence and Social Services had been involved with the family for a number of years. Care and custody of the children had been awarded to the appellant. The deceased was not permitted to be in the company of the children unsupervised, she was not permitted to reside at 18 Staffa Drive and had been provided with separate accommodation. The appellant had been warned on a number of occasions by Social Services not to permit the children to be in the unsupervised custody of Ms Mills otherwise the Fit Person Order making him the children’s primary carer might require to be reviewed and the children taken into Care.

[4] It seems that at about 9.00 am on Saturday 27 May 1995 the appellant left the premises at Staffa Drive in order to go fishing with his father at a local lake. He left the children in the care of Lorraine Mills. The children and their mother appear to have travelled into Ballymena upon three occasions that day. Once by bus, the second time by taxi and, upon the third occasion, the appellant’s brother seems to have taken them in his own car. At some stage they met the appellant’s late mother in Ballymena and she brought them back to her house and made some tea. She saw that Lorraine Mills had been drinking and noticed that she fell on the stairs on the way up to the bathroom.

[5] At about 10.35 am on the morning of Sunday 28 May 1995 Constable Doherty received a message to attend 18 Staffa Drive and when he arrived there were ambulance personnel in attendance. Constable Doherty went upstairs and found the body of a female lying on the bathroom floor covered with a blue and white towel. Dr Redmond had attended at the premises and by the time Constable Doherty arrived it was apparent that Lorraine Mills was dead. Dr McQuillan, the Deputy Forensic Medical Officer, arrived shortly after 11.00 am and examined the body of the deceased. He found some bruising over the head and neck with a trace of blood around the right nostril. Dr McQuillan made a note indicating that he found “no signs of disturbance” in the bathroom. He was called downstairs where he found the appellant having what appeared to be some form of fit which lasted for some 15 or 30 seconds. In cross examination, Dr McQuillan agreed that this condition had been brought on by fainting which could be consistent with a form of reaction to shock.

[6] A post mortem examination of the body of Lorraine Mills was carried out on 28 May 1995 by Professor Crane, the State Pathologist for Northern Ireland. Professor Crane concluded that the cause of death was drowning in fresh water. He noted bruising to the deceased’s head and face, a fine hairline fracture of the inner lining of the right side of the skull together with scattered areas of bruising on the chest, upper back, left upper arm, right elbow, right thigh and right knee. Professor Crane noted that the report from the Forensic Science laboratory showed that, at the time of her death, there was a considerable amount of alcohol in the body of Lorraine Mills amounting to a concentration of 552 milligrams per 100 millilitres. He noted that such a concentration of alcohol was within the range of levels seen in fatalities from acute alcohol intoxication and indicated that the deceased would have been heavily intoxicated when she died. He also noted that it was quite “. . . conceivable that as a result of her heavy alcohol concentration she had lost consciousness whilst in the bath resulting in accidental submersion and drowning.”

[7] The testimony of three witnesses lies at the heart of this appeal. Their evidence may be usefully summarised as follows:-

Ms OK

(1) This witness was the daughter of the deceased and the accused. Her name was originally O Anne Mawhinney but she changed her name to KK in approximately 2006. As noted above, at the date of the death of the deceased, she was approximately 6 years old. MsKK was interviewed by the police on 29 May 1995, the day after the death of the deceased. At the trial MsKK maintained that she had no recollection at all of that interview or its contents. MsKK was cross examined by Mr Lyttle about certain portions of that interview and it seems that, ultimately, the prosecution agreed that relevant sections of that record could be admitted in evidence as exhibit D1. The precise basis upon which that agreement was reached is not entirely clear, particularly in the context of the witness firmly maintaining a denial that she had any recollection at all of the interview in question. Understandably the learned trial judge raised the question of admissibility and it may be, without being specifically articulated, that the trial proceeded on the basis of an agreement between the parties in accordance with Article 18(1)(c) of the Criminal Justice (Evidence) (Northern Ireland) Order 2004.

(2) During the course of her police interview on 29 May 1995 KK described how she had got up at about 8.30 am, her sister J had arisen at 10.15 and her mother and father at about 11.00. She said that she saw her mother going into the bathroom and going to the toilet. She said her mother then got into the bath and when KK went in to use the toilet she observed that her mother was still in the bath asleep and snoring. She said that when she first entered the bathroom her mother was sitting in the bath with the water up to between her stomach and her chest. The second time she went in to use the toilet her mother was lying straight up and down in the bath. Miss KK told the police that she used the toilet and went over to her mother and put her ear to her mouth to see if she was breathing. She discovered that she wasn’t and, after sitting for a “wee minute” she then called for her father. She told the police that, upon the second occasion she had entered the bathroom, when she went to check her mother’s breathing her mother’s head was below the water, her eyes were closed and the water was up to nearly her eyes. She had lifted her mother’s head. She called her father up to the bathroom. He lifted her mother out of the bath and put her down on the floor. She said that he put her on her back and was pushing his hands into her stomach. Her father then told her to phone for an ambulance. During the course of the same interview it appears that MsK gave an account of the movements of her mother, herself and her younger sister on the Saturday prior to her mother’s death. That seems to have been an accurate and detailed account which, to some extent, was corroborated by the taxi driver who had taken them into town upon one occasion.

(3) In July 2009, during a clarification interview in February 2010 and in a summary statement in October 2010, MsKK gave a very different account to the police. That account formed the basis of the evidence that she gave during the trial. MsKK described her home life to the jury confirming that her mother had a drink problem, that there was always shouting in the house and that her mother would have bruises inflicted by her father. She said that on 28 May 1995 she had got up early, gone downstairs and sat on the sofa. She had watched television until she had heard someone moving upstairs. She then went upstairs and saw her mother sitting at the end of her bed in her bedroom. Her mother told her that she was going for a bath and that, if she wished to, she could join her in the bathroom. They went into the bathroom and MsKK sat on the toilet seat while her mother ran the water and got into the bath. She did not recall that she appeared to be drunk. According to MsKK, her mother started singing her favour song ‘Danny Boy’ and she then heard her father coming up the stairs. She said that her father entered the bathroom and closed the bathroom door behind him securing it with a bolt. She said that her father had a wooden object in his pocket. She said that her father went over to her mother and appeared to push her under the water. When her mother pushed herself back up her father took the object out of his pocket and seemed to hit her with it. There was a splatter of blood on the back and side walls of the bath. Her father put the object back in his pocket and appeared to push her mother back down under the water. She told the jury that her mother seemed to struggle but “not with any sort of or not with a lot of energy.” Her legs were sort of kicking but not with much success. She said that after a while her mother’s movements ceased, her father stood up and walked out of the room. MsKK said that she had gone over to her mother and shaken her shoulders and said “wake up mum”. When there was no response from her mother she knelt down beside the bath crying. Her father then returned to the bathroom, picked her up by the arm, took her into the bedroom and told her to stay there. After a while her father returned, took her downstairs to the front room and told her to say that they had been on holiday and had found their mother in the bath when they had returned. Over the intervening years Ms KK gave significantly varying accounts of this incident including during examination by a psychologist and in a school essay. Understandably, MsKK was subjected to a searching cross examination by Mr Lyttle with regard to the differences and inconsistencies between her 1995 police interview, the psychologist and school accounts, the subsequent interviews in 2009 and 2010 and her evidence to the jury. She was also closely questioned about apparent inconsistencies between her testimony and the forensic evidence e.g. the absence of significant deposits of blood in the bathroom, the lack of a relevant injury to the deceased, the fact that the top of the deceased’s head was not wet and why there was not more evidence of splashing on the bathroom carpet if there had been the degree of struggle that she described. She was also asked why she apparently continued to enjoy a normal relationship with her father for some significant time after the incident if she had witnessed him killing her mother. Without exception her responses were “I don’t know” or “I can’t remember.”

Gwen Mawhinney

(1) Gwen Mawhinney is approximately 53 years of age. She met the appellant in or about April or May of 1997 and married him on 31 October 1998. They had one son born on 22 February 1999. She said that, initially, the appellant had told her that his previous partner, the deceased, had died of cancer. She said that in or around September 1997 when they were living in Suffolk the appellant had returned to Ireland for a week and, in his absence, she was contacted by a woman in the pub where the appellant had been working. It appears that the appellant had fallen out with his employers and had left that employment. Gwen Mawhinney said she was informed that papers had been found under the appellant’s bed at the pub which indicated that he had been charged with the murder of his former partner. When she tasked the appellant about this information she said that he explained that he had been falsely accused and had spent 3 months on remand in the Crumlin Road prison. She said that he was very aggrieved about this accusation and frequently discussed it with her thereafter, especially after he had been drinking.

(2) Ms Mawhinney said that they eventually moved back to Ballymena and, at some time in or around 2002, during a further conversation relating to the appellant’s alleged persecution by the police, he mentioned for the first time that the deceased had suffered a fractured skull. She said that she then said to him, “Well did you kill her or didn’t you?” to which he responded that he would tell her later. She said that this conversation had taken place in mid- afternoon at a time when neither of them had been drinking. Ms Mawhinney said that the matter arose again in conversation later that evening after their son had been put to bed. At that time, she said that they had both consumed a couple of cans of beer. She asked the appellant again whether he had killed the deceased and he replied that he had. He told her that he had taken the kids down to Wilma’s because he was doing a job on some guy’s van and when he returned to the house he found Lorraine drunk and asleep in the bath. He said that he pushed her head under the water, walked out of the house and got on with whatever he had to do. He then returned to the house “made out” or pretended to resuscitate his partner and then called the ambulance. He said that, at that time, the children were already down at Wilma’s. When she asked how he had got away with it she said that the appellant explained that the police were stupid and that they had accepted the accuracy and validity of a receipt indicating that he was buying motor parts at Pennybridge at the time that his partner was said to have been killed. According to Gwen Mawhinney, when he was relating this account, the appellant was cold displaying no emotion whatsoever. She said that after that confession they carried on ‘as normal’, laughing and joking, that they had a few glasses of wine and went to bed. Gwen Mawhinney said that the topic did not arise again in detail but the appellant would make occasional “digs” saying such things as “you are my wife you can’t testify against me”.

(3) The relationship between Gwen Mawhinney and the appellant deteriorated and in April 2008 she initiated proceedings for divorce. In June 2008 Gwen Mawhinney said she got drunk and phoned the police in Cambridge to report the accused’s alleged confession. She said that, in the morning, when she was sober, she had made a similar phone call to the police at Ballymena.

(4) Gwen Mawhinney was also closely cross examined by Mr Lyttle. She was questioned at some considerable length about her evidence that the accused had said he had pretended to resuscitate the deceased, about whether she had ever seen the papers said to have been found in the pub, the amount of alcohol that she and the accused had consumed when she alleged that he made his confession, why she had described herself as “pissed out of her head” when they went to bed that night, why she had done nothing about bringing the alleged confession to the attention of the authorities for approximately 6 years and the extent to which her eventual report to the Cambridgeshire police was stimulated by the fact that she was drunk, that the accused had a new girlfriend and that he had failed to adequately assist her in terms of maintenance and paying off the mortgage. During cross examination Gwen Mawhinney confirmed that, after reporting the matter to the police and her subsequent interview, after which she had been advised not to contact him, she had encountered the appellant in the town of March in Cambridgeshire in or about July 2009. She agreed that it had been an amicable meeting, that they had gone for a cup of coffee, they had met again on the following day when she had helped him jump start his car and that they exchanged telephone numbers. She accepted that she had also lent him £10.

The appellant, William Mawhinney

(1) The appellant was originally interviewed as a potential witness. He made a statement to the police on the date of the deceased’s death, 28 May 1995, purporting to give an account of his movements on the Saturday and Sunday. In that statement he claimed that on Saturday 27 May 1995 he and his two daughters had gone with his brother, Raymond, to spend the day and night at a caravan at Portrush. He accepted in cross examination that account was lies and explained that he had made it up because, at that time, the children were subject to a Fit Person Order which did not permit them to be left in the unsupervised care of the deceased. He agreed that he had left them in her care on the Saturday while he had gone fishing. The appellant was subsequently interviewed by the police under caution in 1995 when he explained that his statement about going to Portrush had been a lie. During the course of that interview he said that when he returned home from fishing he found the deceased lying on the kitchen floor and noticed that she had wet herself. He told the police that the grabbed her by the wrists and trailed her across the living room and up the stairs. It seems that was something that he done on a few previous occasions. He told the police that on the Sunday morning he had presumed that the deceased was in the front room sleeping and he had gone down to make breakfast for the children. He said that the deceased had reappeared and there had been an angry exchange in the course of which he had seized her by the throat pinning her against the wall. He then left the house with the children in order to assist his brother. He said that he returned to the house sometime around 9.00 and found that the deceased had drowned in the bath.

(2) The appellant was interviewed again in 2009 subsequent to the report from Gwen Mawhinney when he gave a further account containing a number of matters that were totally inconsistent with the account that he had given to the police in interview in 1995. The appellant made the case that he had continually asked the police to be shown his 1995 interviews which represented an accurate account but that his requests to refer to that record were denied for a significant period.

The grounds of appeal

[8] The grounds of appeal may be summarised as follows:-

(a) That the learned trial judge was wrong in law to admit the evidence of the interviews of the appellant conducted by the police at Antrim between Monday 20 July and Thursday 23 July 2009 and the alleged confession to Gwen Mawhinney.

(b) That the learned trial judge was wrong in law to refuse the application on behalf of the appellant that there was no case to answer at the conclusion of the case for the prosecution.

(c) That, having regard to all the circumstances, this court should have a “lurking doubt” or “a reasoned and substantial unease” about the conviction of the appellant and should, therefore, come to the conclusion that his conviction was unsafe.

The admission of the accused 2009 interviews

[9] During his interviews after arrest in 2009 the appellant maintained that he had difficulty in remembering what had occurred some 14 years earlier and asked to see a record of his 1995 interview in order to refresh his memory. The police refused to give him access to the 1995 record and continued to subject him to questioning. At interview twelve the police started to put to the appellant a number of inconsistencies between what he had been saying in 2009 and the record of his interview in 1995.

[10] Mr Lyttle based his application to the learned trial judge to exclude the 2009 interviews on Article 76(1) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (“the 1989 Order”) on the ground that the admission of the interviews in question would have such an adverse effect on the fairness of the proceedings that they ought not to be admitted.

[11] The learned trial judge reserved his decision overnight and gave his ruling on 9 November 2010. In the course of doing so he referred to the observations of Lord Lane CJ in R v. Quinn [1990] Crim LR 581 who noted that the function of the judge was to protect the fairness of the proceedings and went on to observe that:

“Normally proceedings are fair if a jury hears all the relevant evidence which either side wishes to place before it, but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet, or where there has been an abuse of the process, e.g. because evidence has been obtained in deliberate breach of procedures laid down in an official code of practice.”

The learned trial judge did not consider that the appellant would be unable to challenge any conclusion that the prosecution sought to urge as a result of any alleged discrepancy between the 1995 and 2009 accounts. During the course of the 2009 interviews he had made it perfectly clear that, owing to the period of time that had elapsed, he wished to refresh his memory from the contents of the 1995 interviews – a facility that had been denied to him by the police. The learned trial judge observed that it would be for the jury to determine in due course, the extent to which any alleged discrepancies might be due to the frailty of memory over time or some other explanation. In the circumstances, he refused the application.

[12] In R v. McKeown [2006] NICA 42 this court was asked to reverse a decision by a trial judge to admit a confession and, in the course of delivering the judgment of the court, Kerr LCJ said at paragraph [36]:-

“[36] It is well settled that this court should be slow to interfere with the exercise of a trial judge’s discretion under Article 76 to allow a confession to be admitted. In Blackstone at D24.20 the authors state that the ‘Court of Appeal will not interfere save in extreme cases’. At paragraph F17.16 it is stated that:-

‘The Court of Appeal will not interfere with the exercise of a trial judge’s discretion to admit evidence under Section 78 [the equivalent of Article 76 in this jurisdiction] unless satisfied that the decision was perverse. It follows that cases in which the discretion is said to have been wrongly exercised are comparatively rare. A recent example is Millar [1998] Crim LR 209 in which the judge adverted to an out of date version of the PACE Codes of Practice and thereby reached an incorrect conclusion through failure to note serious breaches of the applicable Code.’”

In our view, applying this test, the decision of the learned trial judge not to exclude the 2009 interviews cannot be criticised. The police were entitled to ask the appellant for his version of events and, once that had been provided, to question him in detail about any discrepancies with the account that he had given in 2005. Throughout both sets of interviews the appellant was legally represented by the same firm of solicitors. He was properly advised of his right to remain silent. It would have been open to him to simply refer to his previous interviews and decline to answer any further questions.

The failure to exclude the confession alleged to have been made to Gwen Mawhinney

[13] The appellant firmly denied making any form of confession to Gwen Mawhinney. Mr Lyttle applied to the learned trial judge to exclude the confession alleged to have been made by the appellant to Gwen Mawhinney upon the ground that it was or might have been obtained in circumstances that were likely to render any confession unreliable contrary to Article 74(2)(b) of the 1989 Order. The circumstance relied upon by Mr Lyttle as giving rise to unreliability was the consumption of alcohol by the appellant and Ms Mawhinney at the time when the alleged confession was made. During the course of the application the learned trial judge, together with defence counsel, gave very careful consideration to the police record of the relevant interview with Gwen Mawhinney in an attempt to establish as accurately as possible the amount of alcohol that was likely to have been consumed when the alleged confession was made. Mr Lyttle summarised his application in the following terms:-

“In short, my Lord, for the purposes of this application there is prima facie evidence from the ABE (available best evidence) interview that drink was taken at the time of the alleged confession and by the time they went to bed by their own assessment, they were ‘pissed out of their heads’.”

By way of response the prosecution was permitted to call Gwen Mawhinney to deal with the matter. She did so and was cross examined on behalf of the accused by Mr Lyttle. The learned trial judge then heard detailed legal and factual submissions from the prosecution and the defence.

[14] In delivering his ruling on the application the learned trial judge carefully reviewed the evidence of Ms Mawhinney relating to the consumption of alcohol at the time of the alleged confession by the appellant and, having done so, he said:-

“There is nothing in the evidence or in human experience to suggest that the consumption of a couple of cans would have loosened the tongue of a person with the accused’s age and size and according to the undisputed evidence of Mrs Mawhinney, considerable experience of alcohol consumption. Further his alleged promise to ‘tell her later’ whether he killed Lorraine was, according to Mrs Mawhinney, made before any alcohol at all had been consumed. In short, there is no evidence of the consumption of the quantity of alcohol alleged to have been consumed by the accused or the witness before his alleged confession was a circumstance likely to render that alleged confession, if indeed it was made, unreliable. I have been satisfied of that by the prosecution beyond reasonable doubt. Accordingly, the objection under Article 74.2(b) to the admission of the alleged confession in evidence is rejected.”

The learned trial judge also rejected a subsidiary objection to the confession evidence made by Mr Lyttle under Article 76 noting that, during the course of the main trial, Mr Lyttle and his junior would be able to attack the reliability and veracity of the evidence of Ms Mawhinney by comparing and contrasting several aspects of her evidence relating to the confession.

[15] It is clear that the learned trial judge gave careful consideration to the evidence, arranged for the witness to be specifically examined and cross examined and delivered his ruling only after hearing full submissions from both the prosecution and the defence. In the circumstances we are satisfied that he was correct to reject the application to exclude the confession evidence.

The defence application for a direction of no case to answer

[16] At the conclusion of the prosecution case Mr Lyttle argued that there was no case for the appellant to answer supporting his application with both oral and written submissions. In the course of those submissions Mr Lyttle focused upon the evidence of KK, the evidence of Gwen Mawhinney, the forensic evidence of Professor Crane and the discrepancies between the police interviews of the appellant in 1995 and 2009. He argued that the evidence of KK to the jury was not capable of belief in so far as it was vague, irrational and inconsistent with her 1995 police interview. He questioned the motive on the part of Gwen Mawhinney for reporting the alleged confession of the appellant to the police some 6 years after she said that it had been made. He pointed to the fact that she had been drunk when she had made the telephone call. He submitted that the fact that the appellant had formed another relationship and had failed to provide adequate maintenance with the result that she and her son were about to evicted from their home gave rise to a clear possibility that her evidence was tainted by malice and revenge. Mr Lyttle further submitted that the evidence of Professor Crane was entirely consistent with the defence case and that the appellant should not be penalised for inconsistencies in his 2009 interviews, some 14 years after his 1995 interview. He referred the learned trial judge to a number of relevant decisions including R v. Galbraith (74 Crim App R 124), R v. Shippey [1988] Crim LR 767, R v. Smolinski [2004] 2 Cr App R 40 and R v. R [2007] Crim LR 478.

[17] After giving the matter careful consideration Weir J delivered a written ruling in the course of which he made the following observations:-

“There are undoubtedly a number of worthwhile jury points that if accepted arguably diminish the credibility and/or reliability of elements of the evidence of OK. There are major inconsistencies between her witness statement as a 6 year old child made just after her mother’s death and her evidence in this trial. There are also inconsistencies in aspects of the accounts that she has variously given during the intervening years and there are discrepancies between aspects of her evidence in the trial and that given by other witnesses. Her central evidence, that her father the accused killed Lorraine Mills is supported by Gwen Mawhinney the accused’s wife who has given evidence that the accused admitted his guilt of Lorraine Mills’ killing to her. In relation to that witness there are also useful jury points including the failure to inform anyone and carry on living with the accused as though nothing had been said for a period of 6 years until following the discovery by her that the accused was in another relationship and while facing eviction from her home she telephoned the police while in an intoxicated condition to make a report. These are merely examples of some of the jury points that undoubtedly are open to be made by the defence on the prosecution evidence. But I must remind myself that I am not the jury and save in a very clear situation I must not usurp its function by halting a trial at the close of a prosecution case. Whether a witness is truthful is nearly always a question for the jury and I do not consider that the nature and quality of the evidence of Gwen Mawhinney taken as a whole is such that any reasonable tribunal would be forced to the conclusion that the witness was untruthful. Nor do I consider that her evidence of the alleged confession was unconvincing to such a point that a jury properly directed and weighing all the surrounding circumstances could not properly convict upon it. Similarly in the evidence of KK. The jury will plainly have to decide whether the contradictions between her 1995 statement and her evidence at the trial are or are not explicable and whether taken with the other evidence in the case for both prosecution and defence, and both confirmatory and discrepant, the case has been proved to the requisite standard. In my estimation the sum of the prosecution evidence in this case plainly does not fail the second limb test of Galbraith and on the contrary constitutes a quintessential case to be decided by a jury. I accordingly reject the application.”

[18] The learned trial judge had the benefit of hearing and seeing the witnesses for the prosecution examined and cross examined and was clearly familiar with the relevant authorities including the seminal case of R v. Galbraith. His attention was also directed by the defence to the decision in R v. Shippey often referred to as the “plumbs and duff” case. Shippey was a decision of Turner J sitting at first instance which has been viewed as restricted to “its own facts” by a number of subsequent authorities including R v. Prior [2004] EWCA Crim 1163 and R v. Alobaydi [2007] EWCA Crim 145.

[19] Apart from the apparent discrepancies and inconsistencies contained in the evidence of OK and Gwen Mawhinney, many of which were conceded on behalf of the prosecution, the learned trial judge’s attention was also directed by Mr Lyttle to decisions such as R v. Smolinski [2004] 2 Crim App R 40 CA and R v. R [2006] EWCA Crim 2754 in which the Court of Appeal in England and Wales has emphasised the need to give special consideration to the dangers inherent in cases in which witnesses seek to recall events of long ago (subsequently approved by this court in R v P [2010] NICA 44). The principles of law set out in the written defence submission were accepted by the prosecution. Mr Murphy conceded that the events reported by KK had occurred when she was a young child and that it was obvious that her recall of such matters was not going to be perfect. The prosecution also furnished the learned trial judge with excerpts from a number of relevant authorities.

[20] In this court Mr Lyttle complained that the learned trial judge did not specifically mention the authorities to which he was referred including, in particular, R v. R. However, it is clear from his ruling that he had read the various materials submitted and was fully aware of the inconsistencies between the various accounts given by KK over the intervening years together with the points that could be raised with jury in relation to the evidence of Gwen Mawhinney. Mr Lyttle emphasised that KK’s 1995 witness statement was not merely inconsistent with her evidence in court but was incompatible therewith. However, such conflicts between the police statement and the evidence of a witness are not infrequent and in R v. Viemars Saksa [2011] EWCA Crim 1524, a case involving retracted statements, Hughes LJ in delivering the judgment of the Court of Appeal in England and Wales said at paragraph 15:-

“15. There are occasions when a witness retracts a previous assertion and the result is that it is simply impossible to say which is true. Sometimes there are cases where it is clear that the retraction is likely to be correct and the original assertion probably untrue. There are other cases when the manner in which evidence is given by a reluctant witness only serves to confirm the truth of the previous assertion. If a jury might reasonably take that is what is happening then the decision of whether that has occurred is for the jury and not for the judge.”

[21] Ultimately, as the Court of Appeal in England and Wales stated in R v. R, beyond emphasising the need for careful scrutiny, it is not possible to lay down clear principles according to which a judge should decide whether it is safe to leave a particular case to the jury. It would be undesirable for any principle to be established since any such principle would be liable to provide far too rigid a process of determination. Each case is fact specific and there can be no doubt that in this case the learned trial judge carefully scrutinised the evidence in the context of the detailed written and oral submissions advanced by the prosecution and the defence together with the relevant authorities. In the circumstances, we do not consider that the decision by Weir J to allow the case to proceed to the jury can be faulted.

Was the conviction of appellant unsafe?

[22] The principles to be adopted when approaching the question as to whether a conviction is unsafe in accordance with section 2(1) of the Criminal Appeal (Northern Ireland) Act 1980 have been set out by this court in R v. Pollock [2004] NICA 34.] They were summarised at paragraph [32] by Kerr LCJ in the following terms:-

“1. The Court of Appeal should concentrate on the single and simple question ‘does it think that the verdict is unsafe?’.

2. This exercise does not involve trying the case again. Rather it requires the court, where a conviction has followed trial and no fresh evidence has been introduced on the appeal, to examine the evidence given at trial and to gauge the safety of the verdict against that background.

3. The court should eschew speculation as to what may have influenced the jury to its verdict.

4. The Court of Appeal must be persuaded that the verdict is unsafe but if, having considered the evidence, the court has a significant sense of unease about the correctness of the verdict based on a reasoned analysis of the evidence, it should allow the appeal.”

[23] In Pollock Kerr LCJ referred to some relevant observations by Lord Bingham in R v Pendleton [2002] 1 WLR 72. Pendleton was primarily concerned with the approach to be adopted where fresh evidence had been received but, as Kerr LCJ noted, Lord Bingham took the opportunity to emphasise the primacy of the jury in a trial on indictment pointing out at paragraph [17] of the judgment that:

“Trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second. The Court of Appeal is entrusted with a power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury’s deliberations and must not intrude into territory which properly belongs to the jury.”

Lord Hobhouse expressed similar views about intervention by the Court of Appeal observing that a mere risk that the verdict was unsafe did not suffice and that it was not right for the court to “…attempt to look into the minds of the members of the jury.” It is this concern for caution that grounds principles 2 and 3 in Pollock and which requires any subjective ‘sense of unease’ to be based on a reasoned analysis of the evidence as required by principle 4.

[24] In Pollock the prosecution case was that the appellant ‘joy-rider’ had intentionally driven the vehicle at the police officers striking him and causing his death. The appellant had pleaded guilty to manslaughter but not to murder. He did not give evidence. The Court of Appeal carried out a painstaking analysis of the evidence ultimately focussing upon whether the jury could have excluded as a reasonable possibility that, in the space of the relevant 1.25 seconds, the driver, who was undoubtedly under the influence of alcohol, might have been trying to avoid the stinger rather than intending to kill the police officer. In quashing the conviction the court observed that the circumstances in which a jury verdict should be set aside where there has been no challenge to the manner in which the trial was conducted must be wholly exceptional but that, having conscientiously considered the circumstances of the appeal, the court found it impossible with the level of certainty necessary to support a conviction of murder to exclude the possibility that the appellant had been trying to avoid the stinger, rather than deliberately strike the officer.

[25] In opening this appeal on behalf of the accused Mr Lyttle emphasised that, in essence, this was a “lurking doubt” case and he advanced the proposition that if the court was persuaded that there was a real possibility that O K’s account to the police as a 6 year old child in 1995 was accurate then the conviction should be regarded as unsafe.

[26] Towards the end of his directions relating to the evidence of KK the learned trial judge referred to the need to consider whether her 1995 statement to police cast doubt over the reliability, if not the truthfulness, of her evidence in court. He noted that the appellant had expressed the view that KK was mistaken rather than telling lies. The learned trial judge then continued as follows:-

“But obviously if you were to conclude that she is mistaken and that what really happened is contained in what she told the police in 1995, then whether genuinely mistaken or deliberately lying does not matter. Obviously you could not rely on her evidence to you, on the other hand if you conclude that had this 6 ½ year old child gave the police in 1995, this detailed account because she was afraid of her father, and it was not true, then the position would be different.”

[27] With regard to the passage referred to above we note that the jury was not limited to making a decision as to whether KK’s 1995 statement to the police or her evidence in court provided a truthful account of how the deceased came to drown. It would have been sufficient for the appellant to be acquitted if the jury had reached the conclusion that there was a reasonable possibility that the 1995 statement was correct since, in such circumstances, they could not have been satisfied beyond a reasonable doubt about her evidence in court or the evidence of Gwen Mawhinney. In R v. Billingham [2009] EWCA Crim 19 the Court of Appeal in England and Wales had to consider the directions of a trial judge in respect of two witnesses who had made various statements inconsistent with the evidence that they had given at trial. The court emphasised that, in such a case, it was important for the trial judge to draw the threads of the defence case together. The court also referred to the then current JSB direction in England and Wales relating to inconsistent statements the last sentence of which read:-

“If, however, you are sure that one of X’s accounts is true [in whole or in part], then it is evidence you may consider when deciding upon your verdicts.”

The Court of Appeal expressed the view that such a direction needed to be reconsidered and at paragraph 68 of the judgment of the court Stanley Burnton LJ advised that:-

“Where the previous statement is exculpatory of the defendant, it is sufficient for the jury to conclude that it may be true: the present direction requires a jury to be sure that even an exculpatory statement is true. It would be preferable for the direction to make this distinction.”

[28] However, in the circumstances of this case, we agree with Mr Murphy who submitted with some force that the finding of guilt by the jury must, inevitably, lead to the conclusion that the jury had rejected any reasonable possibility that the 1995 police statement by KK had been accurate – a view that commended itself to the Court of Appeal in England and Wales in Billingham. We further consider it to be noteworthy that the appellant’s evidence was not consistent with the content of O’s police interview in 1995.

[29] Unlike Pollock this was a case in which the outcome depended upon a careful assessment and reconciliation of the evidence of the three main witnesses in terms of reliability and credibility and, prima facie, that was a quintessential task for the jury. As noted earlier in this judgment we consider that the learned trial judge was correct to refuse the defence application for a direction. That is a factor to be borne in mind although, of course, it cannot be determinative in itself. In the section of his charge to the jury dealing with the evidence of KK, Gwen Mawhinney and the appellant the learned trial judge emphasised that all three of the witnesses could not be correct and that it was their task to evaluate their respective testimonies. In such circumstances there was a heavy burden upon the learned trial judge to ensure that the jury was provided with a set of clear and comprehensive directions as to how they should set about their task. It is important that we should record that Mr Lyttle did not advance any grounds of appeal specifically grounded upon any criticism of the directions to the jury by the learned trial judge. Indeed, he conceded that those directions were very favourable from the point of view of the appellant.

[30] There is no doubt that the evidence of KK, Gwen Mawhinney and the accused required the jury to exercise a considerable degree of careful consideration and concentration in the course of resolving a number of questions relating to credibility and reliability. Weir J pointed out that, in assessing honesty and reliability, it was important to consider not only what a witness was saying but how it was said. He then carefully reviewed the examination and cross examination of each witness identifying apparent difficulties and inconsistencies together with their potential significance for consideration by the jury. In doing so he emphasied the differences between KK’s 1995 statement to the police and her evidence during the trial and specifically advised caution when assessing the reliability of the evidence of Gwen Mawhinney as to the alleged confession by the appellant. He told the jury that if they were not satisfied beyond reasonable doubt that the appellant had made it and that it was true the confession was to be completely discarded. Ultimately the learned trial judge directed the jury:

“At the end of the day, members of the jury, you’re going to have to make your own assessment of the evidence of these three witnesses and decide who you believe about what.”

We do not consider that the learned trial judge could be faulted for adopting such an approach. In accordance with the decision in Pollock we have anxiously and carefully scrutinised and analysed the evidence but, having done so, we have not been persuaded that this conviction is unsafe.