Kelly v R [2015] EWCA Crim 817

Case No 2013 06330-C1

[2015] EWCA Crim 817

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM BRADFORD CROWN COURT

Mr Justice Coulson

T20107371

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15/05/2015

Before

LORD JUSTICE PITCHFORD

MR JUSTICE WALKER

MR JUSTICE CRANSTON

Between

PAUL MARK KELLYAppellant

THE QUEENRespondent

Ms Kaly Kaul QC (instructed by Criminal Defence Solicitors) for Appellant

Mr ATA Dallas (instructed by Crown Prosecution Service) for Respondent

Hearing Hearing dates : 8 May 2015

Judgment

Introduction

[1]This is an appeal against a conviction for murder brought with the leave of the single judge upon one issue, namely whether a failure by the prosecution to make proper disclosure under the Criminal Procedure and Investigations Act 1996 rendered the trial of the appellant unfair and the verdict unsafe. The appellant seeks to renew his application in respect of further grounds, all of which contend that the judge omitted necessary directions of law from his summing up.

[2]On 9 February 2011, following a trial before Coulson J at Bradford Crown Court, the appellant was convicted of the murder of Kim Driver. He was sentenced to life imprisonment and a minimum period of 14 years (less 207 days spent on remand in custody) was specified under section 269(2) of the Criminal Justice Act 2003.

[3]Following argument the court dismissed the appeal with reasons to follow in writing. These are the court’s reasons.

The evidence at trial

[4]Kim Driver was aged 52 at the time of his death. He lived alone in a ground floor flat at 40 Crawthorne Terrace, Deighton in Huddersfield. Mr Driver suffered from mental health problems. He was known to be an alcoholic and a drug user. According to Mr Higgins, a witness whose evidence was read, Mr Driver tended to fantasise about his relationship with women. He would refer to them as his girlfriends when clearly they were not. One of the women to whom Mr Driver referred as his girlfriend was Paula Nugent who, she said, was the mother of the appellant’s infant son. Paula Nugent and the appellant had been separated for about a year but the appellant would often visit her at her home in Leeds Road, Mirfield where she lived with her children. She worked for a care agency on contract to the local authority. At the time of the murder she had been suspended for suspected theft. Ms Nugent had known Kim Driver for some two years following an introduction by the appellant. Mr Driver had the use of a Motability Renault Megane motor car, registered number YH10 OUP, which Ms Nugent was insured to drive. He also allowed Paula Nugent to use the vehicle for her own purposes. Mr Higgins said she was supposed to pay Mr Driver £40 per month for the use of the car but she did not always do so.

[5]The last known sighting of Kim Driver was in the late afternoon of Monday, 12 July 2010. On the afternoon of Wednesday, 14 July Paula Nugent went to Mr Driver’s flat. There was no reply. She knocked on the door of his neighbour, Pat Brierley, and together they went into Mr Driver’s flat, which was unlocked. They found his body lying on the floor of the living room. Ms Nugent made a 999 call to the emergency services. The police and ambulance paramedics attended. A subsequent post mortem examination established that Mr Driver had died after being stabbed 10 times in the chest, abdomen, back and left forearm. The wounds were consistent with the use of a single knife. The deepest wound was 15 cms deep. At the time of his death Mr Driver was heavily intoxicated. His blood/ alcohol reading was 228 mgs/%. He also had methadone in his blood.

[6]There was no sign of a struggle. The wounds had been inflicted through multiple layers of clothing. No weapon was recovered. Pat Brierley gave evidence that a hunting knife was missing from its usual place on the wall in the living room. It appeared that the knife wounds had been inflicted on Mr Driver while he was on the floor of the living room at or close to the position in which his body was found.

[7]With one exception there was no scientific evidence capable of linking the appellant to the scene of the murder.

[8]The prosecution case was that the murder was committed by the appellant before or after midnight between Monday, 12 and Tuesday, 13 July 2010, consistent with the opinion of the pathologist that Mr Driver died some 2 – 3 days before the examination of his body during the late evening of 14 July. The prosecution relied on the appellant’s admission of the crime to Paula Nugent and her mother, Carolyn Morgan.

[9]The appellant denied that he went to the home of Mr Driver on the night of 12/13 July. His evidence was that he was either at Paula Nugent’s home or out and about with her looking for and purchasing drugs for their consumption.

[10]Since the appellant argues that there are deficiencies in the learned judge’s summing up, it is convenient to provide a summary of the evidence on which the prosecution and the defence relied in the course of describing the structure and content of the summing up.

The summing up

[11]At the outset of his summing up Coulson J provided the jury with his written directions of law and read his directions to them. They appeared under the following headings:(1) Functions

(2) Burden and Standard of Proof

(3) Legal Matters, Murder, Provocation

(4) The Issues in the Case

(5) Routes to Verdict

(6) Evidence, Bad Character, Other Factual Evidence (screens), Expert Evidence

(7) The Silence in Interviews

(8) Evidence – Chapter Headings

[12]Under the title “(4) The Issues in the Case” the judge identified for the jury 10 “principal matters” on which the prosecution relied to prove that the appellant was the killer.

[13]As to issue (1), Siobhan Morgan is Paula Nugent’s sister. She gave evidence that on Sunday, 11 July the appellant called at her home when she was taking a bath. He had come to repay a debt. He appeared to be agitated and Siobhan asked him what was wrong. He said that he was going to kill him, that is the man from whom Paula got her car, meaning Mr Driver. He said that the previous night Mr Driver had arrived at Paula’s house “kicking off”. The appellant had spoken to Mr Driver who was sitting in his car outside the house. Mr Driver had told the appellant that Paula was not his woman anymore; he had come to take her out for a curry. Mr Driver went on to say that if he could speak face to face with the appellant he would tell him something about Paula that he did not like. Siobhan said that she tried to reassure the appellant that Mr Driver was just winding him up but the appellant was agitated, pacing up and down her garden. He said that he was going to “split his wig”, which she understood to mean that he was going to do some harm to Mr Driver. He left Siobhan’s house and drove off.

[14]In cross examination it was put to Siobhan that there had indeed been a conversation about Mr Driver’s arrival at Paula’s house, but there had been no threat. It was suggested to her that the expression “split his wig” had been used not in relation to Mr Driver but in relation to people who had posted messages on Facebook to which he had taken exception. Siobhan Morgan insisted that the appellant had both threatened to kill Mr Driver and to split his wig. She denied that she had been put up to her evidence by Paula and their mother with the intention of getting the appellant out of Paula’s life.

[15]When the appellant gave evidence he at first denied that he had any conversation with Siobhan Morgan on that day. He then accepted that on Sunday, 11 July he took money to Siobhan. He told Siobhan only that Mr Driver had behaved like an idiot by sounding his horn and, perhaps, revving his engine. . He denied the conversation described by her. He agreed in cross examination that Mr Driver’s behaviour had angered him because the children could have woken up; but he had not paced in the garden in an agitated state.

[16]The judge directed the jury that they would have to resolve whether Siobhan Morgan was telling the truth or her evidence was part of a conspiracy between the women to tell lies about the appellant.

[17]Issue (2) concerned the evidence of Mr Driver’s neighbour, Kamaljit Sadhra, who lived in Crawthorne Crescent. She gave evidence that at about 12.30 am on Tuesday, 13 July she heard the sound of a car outside. She looked out and saw a grey coloured car parked in the cul-de-sac opposite. It looked like a Volkswagen Sirocco. The lights were off. She went upstairs and when she again looked out she could see a man walking on the corner of Crawthorne Crescent and the cul-de-sac. He went to the car, unlocked it, got into the driver’s seat and drove off, turning right on to Keldergate. About 5 minutes later the car returned. It was parked in a similar position. The man got out of the driver’s seat and walked up Crawthorne Crescent. He appeared to be looking at something he had in his hand. He walked out of sight in Crawthorne Crescent. Ms Sadhra remained at her window, trying to make out the registration number of the car. The number she entered into her mobile phone memory was YH10 DUP. The man returned after 5 – 10 minutes. He was running to the car with his hood up. He got into the car and drove off at speed, again turning right into Keldergate. Ms Sadhra described the man as white, very slim build, about 5 feet 8 inches tall, 25 – 30 years old (consistent with the general appearance of the appellant), wearing a striped dark and light hoodie, dark trousers and white footwear. She saw no-one else in the car. She estimated that her two sightings had taken place over a period of 20 – 25 minutes. What had attracted her interest was the fact that the man had chosen to park where he did. There was plenty of parking further up the road without the need to re-trace his steps. It was an agreed fact that the number recorded by Ms Sadhra as YH10 DUP had never been issued by the DVLA. It followed that Ms Sadhra had not seen that number. She must have mistaken it for another, the prosecution suggested YH10 OUP.

[18]The judge directed the jury that they would need to consider whether the car number recorded by Ms Sadhra was of a VW Sirocco or, as the prosecution maintained, the Renault Megane. If it was the Renault Megane the jury would need to consider whether the person Ms Sadhra had described was the appellant. The judge pointed out that if the vehicle recorded by Ms Sadhra was the Renault Megane there had to be an explanation for the agreed evidence that it was back at Ms Nugent’s home to convey the children to school in the morning.

[19]Issue (3) concerned cell site evidence to the effect that the appellant’s or Ms Nugent’s phone was located in various areas during the night of 12 and 13 July. On one occasion his phone used a cell site that served Crawthorne Crescent. The appellant’s evidence was that he was at Paula’s home in Leeds Road on the evening of 12 July. The children were in bed and he and Paula were taking drugs. They both left the house in the early hours to find and purchase more drugs in Birkby. They then returned to Mirfield, stopping en route in Costcutters for a phone top up and beer. On arrival at Paula’s house they continued to take drugs. Later, he went out alone to make a further purchase of drugs in Birkby and returned. While he was out he sent a text to Paula that read “I WILL ALWAYS LOVE U N KIDS UR MY LIFE PLS CAN WE TRY REALLY TRY 4 US? COS UR BETTER THAN THIS”. He said in cross examination that he and Paula were on bad terms and smoking crack. He was feeling emotional. The text had nothing to do with Kim Driver. He agreed that he wore a yellow and black hoodie with a T shirt underneath, and blue jeans over camouflage pants.

[20]Issue (4) related to the evidence of Paula Nugent as to the appellant’s movements on the night of 12/13 July. She said that at about 9 pm on Monday, 12 July she used Mr Driver’s Renault car to pick up the appellant from his mother’s house. He was wearing a black and yellow hoodie and blue jeans. They had returned to her home in Mirfield where they had taken drugs. At about 11 pm the appellant had gone out alone to purchase more drugs. By the time he returned she was asleep. He was no longer wearing the hoodie and jeans. He was wearing a T shirt and three-quarter length pants. He told her that he had been to Kim’s and Kim was dead. Her response was to laugh. He asked why she was laughing and told her that Kim had been saying she was no longer Paul’s woman and that he, Kim, was going to take her out for a meal. He wanted to know why Kim would be taking her for a meal. She denied that he was. The appellant told her that he stabbed Kim Driver and had gone back to make sure he was dead. When she asked where he had stabbed him the appellant pointed to his chest and abdomen and said, “There, there and there”.

[21]Ms Nugent was cross examined about the telephone schedule. Calls 9 and 10 concerned her journey to Margaret Kelly’s house to pick up the appellant. Call 10, using a cell site close to the Kelly house, was timed at 10.23 pm. Call 11, a voice mail from the appellant, used the same cell half a minute later. It followed that she must have picked up the appellant from his mother’s house later than she had recalled. Call 12 used two cell sites that served the location of Paula Nugent’s house. It was made at 12.47 am probably to a drug dealer called Lucca. This, the defence argued, cast doubt upon the prosecution case that Ms Sadhra saw the Renault Megane and the appellant at 12.30 am. Call 13, also to a drug dealer, was made at 1.22 am, call 14 at 1.30 am. Call 13 used a cell site that served an area that included Kim Driver’s house. The visit to Costcutter’s was timed at 1.45 am when the appellant’s mobile was topped up. Paula Nugent said in evidence, both that she could not recall being with the appellant out and about in the Renault Megane in the middle of the night, and that she was certain she was not. She said she had not been in the vicinity of Crawthorne Crescent that night. She repeated that she had gone to bed when Paul left the house and remained asleep until he returned, woke her and claimed that he had stabbed Kim Driver. If the appellant’s phone had run out of credit he would often use hers.

[22]The judge directed the jury that they would need to decide whether, as the appellant maintained, calls 12, 13 and 14 were made by Paula Nugent when she was driving the Renault car with the appellant as passenger, or, as she said, by the appellant while she was at home. Critically, the jury would need to decide whether she had told the truth about the appellant’s confession to her.

[23]Issue (5) also related to Paula Nugent’s evidence. She and the appellant were agreed that they had taken the children to school on the morning of Tuesday, 13 July. Ms Nugent gave evidence that when the children had been dropped off and only Paula, the appellant and the youngest child remained in the car, she asked the appellant whether he had killed Mr Driver. He replied, “Yes”. He went on to tell her that Sampson, Mr Driver’s dog, had been in the kitchen. The appellant denied that any such conversation occurred.

The judge posed the question for the jury:

“Did Paula ask for and get confirmation of what the defendant told her in the small hours of the night, or is that again evidence of the perjury conspiracy alleged by the defendant?”

[25]Issue (6) concerned a conversation between Paula Nugent and her mother, Carolyn Morgan. The relevance of the conversation was its capacity through its consistency to support the truth of Paula Nugent’s evidence of the appellant’s confession and to rebut the appellant’s assertion that there was a conspiracy to give false evidence against him. Paula Nugent gave evidence that at teatime on 13 July she had visited her mother with the two youngest children. She told her mother about the conversation between herself and the appellant. They looked at the news but saw nothing about Mr Driver.

[26]Mrs Morgan said that Paula was agitated and distressed. Nicole, her daughter, was given some money to go to the shop. Mrs Morgan asked what was wrong. Paula said that she was unsure whether she should tell her. Mrs Morgan said she had to. Paula told her that Paul had killed somebody, Kim Driver. The night before, he had stabbed Mr Driver three or four times. As a result of the conversation Mrs Morgan made an entry her diary “Paula told me that Paul had done something bad”. She used those terms in case a grandchild read what she had written. When Mrs Morgan made her first witness statement to the police she had left the diary at home and thought the conversation had taken place on Monday, 12 July. When she consulted her diary at home she realised her mistake. It was Tuesday, 13 July on which the conversation took place.

[27]The judge invited the jury to consider whether they accepted Mrs Morgan’s evidence that she knew about the killing and made her diary entry before the discovery of the Mr Driver’s body. If they did, they would need to consider the implications for the truth of the evidence of Paula Nugent.

[28]Issue (7) concerned the circumstances in which the witness Kirsty Phillips-Morrin was asked by the appellant to look after a bag. This witness’ evidence was read. She said that at 1.30 am on Wednesday, 14 July the defendant telephoned her to ask whether he could leave a bag of clothes at her house. She asked whether it was drugs and, on being assured it was not, she agreed. Two minutes later the appellant brought a white plastic bag to her home. It was bulky and tied with a double knot. Ms Phillips-Morrin placed the bag behind the television. Later that day the appellant was interviewed as a witness. He claimed that he had not seen Kim Driver for two and half weeks. However, he was arrested on the following day, Thursday, 15 July at 12.25 pm. Later Ms Phillips-Morrin was visited by a young woman who asked for the return of the appellant’s bag. The bag was handed over. The bag was subsequently recovered by the police from Margaret Kelly’s house. The clothes inside could not be linked to the scene of the killing.

[29]The appellant gave evidence that he did conceal a bag of clothes to avoid detection but not for the murder of Kim Driver. He told the jury that he had been following a group of Chinese men with a view to discovering the location of their cannabis farm. His intention was to break in and steal their cannabis. Fearing that he may be identified by his clothing, he had taken a change of clothes with him. When he had completed his reconnoitre he had put the clothes in the bag and taken it to Ms Phillips-Morrin. He could not remember what those clothes were. The appellant agreed that he had said nothing about his reason for disposing of the bag of clothes when interviewed by the police.

[30]Issue (8) concerned Paula Nugent’s evidence that she found on 14 July exactly what she had expected to find because the appellant had told her that he had stabbed Mr Driver in the chest and abdomen; he was dead; the dog was left in the kitchen. The circumstances of the discovery of Mr Driver’s body were not in dispute. The issue was whether Paula Nugent had told the truth about her expectation.

[31]Issue (9) related to the further evidence of Carolyn Morgan. Mrs Morgan gave evidence that she went to her own mother’s house on the morning of Thursday, 15 July, to clear it out. She was upstairs in a bedroom. Margaret Kelly’s house was close by. The appellant entered, came upstairs and sat next to Mrs Morgan on the bed. She asked, “What have you done, Paul?” He replied, “If you knew what I knew, then you will know why I did it”. He proceeded to tell her that Kim Driver had told him that Paula had been in his bedroom while taking drugs. Showing Mrs Morgan three of his fingers, the appellant said that Kim had his fingers up Paula but they did not have sex. He also said that there were other people who had slept with Paula. He was going to get them too. The appellant said that he would kill himself because he was not going to prison for this.

[32]The appellant gave evidence that although he had been at his mother’s house on that morning he had not gone to see Carolyn and no such conversation occurred.

The judge directed the jury to decide upon the truth of Mrs Morgan’s evidence.

[34]Issue (10) concerned one aspect of the scene of crime and forensic evidence. A cigarette butt was found on the doormat at Kim Driver’s flat. It had been smoked and was bent as though extinguished but not completely flattened. The cigarette butt was scientifically examined and found to contain material that produced the appellant’s DNA. It was accepted that, theoretically, the cigarette butt could have been transferred on the shoe of someone other than the appellant himself.

[35]The questions posed by the judge were: “Was it there 2 ½ weeks before, when he had last visited? Was it dropped at the time of the murder, two days before, or was it in some way trodden in from the car, possibly on the 14th? Those are the various possibilities”.

[36]In view of the attack on Paula Nugent, the judge, having reminded the jury of her evidence in the chronological compartments to which we have referred, returned to the issue of her credibility in the latter stages of his summing up. He reminded the jury that when interviewed by the police on 14 July, following discovery of the body, Paula Nugent said nothing about the appellant’s confession. She left the police station in the early hours. She was seen again at her home on 15 July, taken to the police station and only then did her full account emerge. She claimed during her evidence in chief that she had not mentioned the confession on the first occasion because she was frightened of the appellant. Ms Nugent was taxed about her change of account in cross examination by Mr Alistair Macdonald QC on behalf of the appellant. She said that she was scared that she was herself going to be charged with murder. She said that when the officers came to her house they told her they had been sent to arrest her for murder. They asked her questions such as who was going to look after her children. They told her not to worry about Paul. She said, “They knew I was lying; they told me that”. She agreed that she had changed her statement because she thought that unless she implicated Paul her children would be taken away from her. Mr Macdonald QC suggested to her that she had told lies implicating the appellant because she was concerned about her own position. She replied that she had told the truth about Paul. She denied that she asked her mother or sister to lie on her behalf.

Directions-circumstantial case

[37]It is now argued on behalf of the appellant by Ms Kaly Kaul QC that it was essential for the jury to receive assistance from the judge as to their correct approach to a case that depended to a substantial extent upon evidence of circumstances.

[38]It is not unusual for the trial judge to point out to the jury the difference between proof by direct evidence and proof by circumstances leading to a compelling inference of guilt. However, there is no rule of law that requires the trial judge to give such an explanation or any requirement to use any particular form of words. It depends upon the nature of the case and the evidence. We draw attention to the words of Lord Morris of Borth-y-Gest in McGreevy v DPP

[1973] 1 WLR 276

(HL),

[1973] 57 Cr App R 424

at page 431 (with which the House agreed):

“The particular form and style of a summing up, provided it contains what must on any view be certain essential elements, must depend not only upon the particular features of a particular case, but also upon the view formed by a judge as to the form and style that will be fair and reasonable and helpful. The solemn function of those concerned in a criminal trial is to clear the innocent and to convict the guilty. It is, however, not for the judge but for the jury to decide what evidence is to be accepted and what conclusion should be drawn from it. It is not to be assumed that members of a jury will abandon their reasoning powers and, having decided that they accept as true some particular piece of evidence, will not proceed further to consider whether the effect of that piece of evidence is to point to guilt or is neutral or is to point to innocence. Nor is it to be assumed that in the process of weighing up a great many separate pieces of evidence will forget the fundamental direction, if carefully given to them, that they must not convict unless they are satisfied that guilt has been proved and has been proved beyond all reasonable doubt.”

[39]The risk of injustice that a circumstantial evidence direction is designed to confront is that(1) speculation might become a substitute for the drawing of a sure inference of guilt and

(2) the jury will neglect to take account of evidence that, if accepted, tends to diminish or even to exclude the inference of guilt (see R v Teper

[1952] AC 480

). However, as the House of Lords explained in McGreevy,circumstantial evidence does not fall into any special category that requires a special direction as to the burden and standard of proof. The ultimate question for the jury is the same whether the evidence is direct or indirect: Has the prosecution proved upon all the evidence so that the jury is sure that the defendant is guilty? It is the task of the trial judge to consider how best to assist the jury to reach a true verdict according to the evidence.

[40]In the present case, as Lord Morris advised, the judge clearly gave considerable thought to the question how best he could assist the jury’s consideration of the evidence. He set out for them orally and in writing the 10 main features of the evidence on which the prosecution relied. During the course of his summary of the evidence upon each of these features, and others, he identified the evidence for the prosecution, the evidence and case for the defence and the question on which the jury would need to reach a conclusion. At the outset he pointed out to the jury their duty to consider all the evidence, and explained the difference between common sense inference from evidence and speculation, warning the jury against the latter.

[41]Furthermore, this was not purely, or even mainly, a circumstantial case. The central and essential element of the prosecution case was the direct evidence of Paula Nugent and Carolyn Morgan that the appellant had confessed to the killing of Kim Driver. There were two strands of evidence whose effect, depending upon the jury’s view, could be support for the evidence of Ms Nugent and Mrs Morgan, namely Ms Sadhra’s sighting of the car and its driver, and the discovery of the cigarette butt on Mr Driver’s door mat. However, throughout the judge’s summing up he reminded the jury that the central issue was whether Ms Nugent and her mother were telling the truth or may be lying for some purpose of Ms Nugent’s own. In our view, this is exactly what the case required.

[42]On reflection, Ms Kaul QC accepted that this was not a mainly circumstantial case. She contended, however, that the jury required a specific warning about acting in favour of the prosecution on the evidence of Ms Sadhra to the effect that the car she thought was a Volkswagen Sirocco with a number that had never been issued was parked outside her house on the night the murder was committed. The judge should have emphasised that if Ms Sadhra was accurate in her timing, call 12 was inconsistent with the inference that she had seen the Renault Megane.

[43]The prosecution was not inviting the jury to accept Ms Sadhra’s evidence of identification of the car. The evidence relied on was the close similarity of the registration number, which had never been issued, to the known registration number of the Renault Megane. The prosecution invited the conclusion that it was beyond coincidence that the Megane’s number was almost identical. Secondly, the prosecution relied upon Ms Sadhra’s general description of the driver of the car that appeared to be consistent with the appellant. Thirdly, they relied on Ms Sadhra’s evidence that the driver of the car was alone. Should the jury accept the prosecution’s invitation this evidence was capable of supporting the prosecution case that Ms Nugent was telling the truth. No special warning was required as to this aspect of Ms Sadhra’s evidence.

[44]As to timing, the judge did draw the jury’s attention to the time and location of call 12, to Mr Macdonald QC’s cross examination of Ms Nugent on that issue, and to Ms Sadhra’s estimate of the time of her sighting. The jury was provided with plans, cell site maps and telephone charts. The jury had heard the arguments on both sides as to the effect of Ms Sadhra’s evidence. The judge left to the jury the question whether Ms Sadhra had sighted the Megane or not. That, in our view, was sufficient. Having dealt in full with the relevant evidence, the significance of which cannot have escaped the jury’s attention, it was not necessary for the judge to re-state the arguments on both sides of the issue.

Directions-alibi

[45]The appellant now contends that the judge should have included in the summing up a specific direction as to alibi, that is to say that a false alibi did not automatically prove guilt; that the burden remained upon the prosecution to prove the defendant’s guilt.

[46]We recognise that there are some circumstances in which a specific direction will be required. The risk against which such a direction is designed to protect the defendant is that the jury will jump to an unjustifiable conclusion that the reason he gave false particulars of alibi must be that he is guilty of the offence charged.

[47]There was no such danger in the present case. The appellant accepted that he was out and about late in the night of 12 July and early in the morning of 13 July. He therefore had the opportunity to commit the offence. His evidence of alibi was that he was at all times with Ms Nugent. Had Ms Nugent merely denied the appellant’s assertion, an alibi warning may well have been required. However, Ms Nugent’s evidence of the appellant’s confession was inseparable from her evidence that the appellant was out alone that night. It is inconceivable that the jury would have contemplated convicting the appellant unless they were sure not only that his alibi was false (in that he was alone and not with Ms Nugent) but also that he confessed what he had done when he returned.

Direction-the need for caution

[48]Ms Kaul QC sought to persuade us that the judge should have directed the jury to exercise caution before acting on the evidence of Paula Nugent and her mother. She had been inconsistent and had admittedly told lies. The defendant’s evidence was that Paula Nugent was doing her best to get him out of her life. They were on bad terms. He was, he said, challenging his paternity of her youngest child. He had a child by another woman, which she resented. There was hostility between them. She had a further motive for telling lies, namely that she feared she might herself be charged with murder. She accepted that on 15 July she was fearful for her own future. She was prepared, the defence asserted, to go to the lengths of implicating the appellant falsely in a murder. The difficulty for these assertions was that the couple did not separate until several months after Ms Nugent discovered the appellant’s unfaithfulness; after they separated the appellant continued to visit Paula Nugent’s house; they continued their sexual relationship; Paula Nugent was running errands for the appellant even at the time of present events; on the night of the killing they were consuming drugs together in her home. That night the appellant sent Ms Nugent a text declaring his love for her and his devotion to the children.

[49]It was not suggested at trial and was not suggested by Ms Kaul QC in the appeal that Ms Nugent herself was or might be implicated in the murder of Kim Driver. In these circumstances it was a matter for the judgement of the trial judge whether any particular form of warning about the witness’s evidence was required. There were two issues for the jury: first, whether Ms Nugent had a motive for lying about the appellant and, secondly, whether she had persuaded her mother or sister to lie in support of her.

[50]The judge had the opportunity of observing Ms Nugent, her sister and her mother giving evidence. If the appellant’s assertions were correct Mrs Morgan must have been persuaded to give false evidence both about the diary entry and her own conversation with the appellant on 15 July. Siobhan Morgan must have lied about her conversation with the appellant on Sunday, 11 July. In our view, there was no necessity for the judge to warn the jury that caution was required before they could rely upon the evidence of the three women; only that the jury should be aware of the alleged motivation of the witnesses and make a decision as to their reliability. The prosecution case depended upon the jury’s conclusion that these witnesses had not put their heads together to tell lies and the judge repeatedly directed them to that effect. The ultimate question for the jury was whether, on one or more of the grounds raised by the defendant and in cross examination of Ms Nugent, the evidence against the defendant was or might be false. What was required was a sufficient summary of the evidence and a direction to the jury that they must examine the motives attributed to the women for telling lies. This the jury received.

[51]We are fortified in our conclusions as to the adequacy of the summing up by the complete absence of any invitation by experienced counsel for the appellant to the judge to consider providing the jury with further directions. We reject the renewed grounds as without substance.

Post-trial disclosure

[52]Those advising the appellant learned, while examining an OASYS report upon the appellant, that, during the investigation into the killing of Mr Driver, Paula Nugent was herself under investigation for offences of fraud. That fact was not disclosed to the defence before the appellant’s trial; accordingly, the material subsequently disclosed could not be utilised on the appellant’s behalf at trial. As a result, it is submitted, the trial was unfair and the verdict is unsafe.

[53]As we have said, Ms Nugent was employed as a care assistant by Claimar Care Limited, a company that undertook sub-contract care visits for the local authority. Her responsibilities included visiting elderly, infirm and confused residents for the purpose of providing them with short-term assistance in their homes. For this service she was paid £6 per hour and received a mileage allowance. One of her clients was called Linda. Ms Nugent was a carer for Linda between June 2009 and January 2010, when she was suspended from duty. On 31 January 2010, with the assistance of her sister Jacqueline, Linda made a complaint to the West Yorkshire police that money was missing from her home. By reason of her deteriorating mental condition Linda was unable to provide a statement to the police. The police were informed and they confirmed that in November 2009 Linda had withdrawn a total of over £5,000 in three separate amounts from two separate banks. She had also withdrawn smaller sums in cash at her local post office on her regular basis. On the other hand, Linda seemed to live in reduced circumstances. It was suspected that cash had gone missing from the house and, since Ms Nugent was a regular visitor, she was suspected.

[54]Ms Nugent was arrested on 2 February 2010 and interviewed. She agreed that she been on holiday with the appellant and her children between 29 December 2009 and 12 January 2010. The cost was £1,800 paid, she said, by the appellant. When the appellant was approached for confirmation he refused to co-operate with the inquiry. Ms Nugent denied that she had ever taken Linda’s money. She had taken her to the bank and post office for her to conduct transactions but she had never participated in them. This was confirmed by the institutions themselves. She accepted that from time to time Linda would ask her to withdraw small sums in cash so that she, Ms Nugent, could purchase items for Linda. This she did. Linda and Ms Nugent were, she said, on good terms and became friends. Linda liked to see her children and Ms Nugent would visit her on occasions outside working hours. Ms Nugent was bailed to attend the police station on 23 March 2010.

[55]On 5 March 2010 the police received a further complaint from Christine, the daughter of another client of Ms Nugent’s called Winifred. Christine said that Winifred had complained that she always seemed short of money. When Christine questioned her she said that she had never used an ATM but her account revealed that withdrawals were regularly made by this means. When Ms Nugent attended the police station on 23 March she was asked further questions about Linda. She repeated the account that she had already provided. She was also questioned about Winifred. She agreed that she had been visiting Winifred as a carer since September 2009. That meant that she can have had nothing to do with any losses that pre-dated her employment at Winifred’s address. She said that from time to time Winifred asked her to withdraw cash at an ATM. She handed the money and the card back to her.

[56]The police continued to make enquiries. Cash tins in which Linda kept her money were examined for fingerprints as were some of the documents relating to Linda’s bank transactions. None of the items was linked to Ms Nugent. On 7 April a fingerprint impression was found on one cash withdrawal slip and it was compared with a sample from Ms Nugent. It did not belong to Ms Nugent. Police enquiries revealed that Linda was in the habit of admitting many people to her home. The police learned from other witnesses that, contrary to the impression received from her daughter Christine, Winifred had been in the habit both of withdrawing cash from ATMs and having poor control of her budget.

[57]Linda’s sister, Jacqueline, was informed of the state of the investigation on 8 July 2010. On 1 and 2 August 2010 the evidence was reviewed by the police who decided that there was insufficient evidence for submission to the Crown Prosecution Service. The file was marked “undetected”.

[58]Enquiries made on 19 May 2010 with Winifred’s social worker revealed her long-standing, over-spending lifestyle. On 18 June her daughter Christine was informed of the state of the inquiry. Further conversations with social services on 19 and 22 July confirmed the information received that Winifred would frequently make ATM withdrawals that she could not afford. On 30 July and 23 August 2010 the file was reviewed and on 23 August it was marked “undetected”.

[59]Disclosure was provided to the appellant in the proceedings against him for murder on 9 September 2010. The court is informed that the investigation into Ms Nugent was unknown to those having responsibility for disclosure. In our view the investigation should have been known to the prosecution and disclosure given. It follows from the history that the appellant himself knew that Ms Nugent was being investigated for fraud. Ms Kaul QC was unable to satisfy the court that there was no consideration by the defence team at trial of the nature and impact of the investigation. However, we were persuaded that in the circumstances we should assume that counsel were not informed of Ms Nugent’s arrest and the investigation.

[60]To the extent that the police investigation into Ms Nugent was evidence of her bad character it is accepted on behalf of the appellant that this material cannot have been introduced at trial under section 100 of the Criminal Justice Act 2003 unless it was of substantial probative value in relation to a matter that was in issue in the proceedings which was of substantial importance in the context of the case as a whole.

[61]The matter in issue in the proceedings, admittedly of substantial importance, was the truthfulness of the evidence given by Paula Nugent that the appellant confessed to murder to on two occasions on 13 July 2010. Had the judge been faced with an application to admit this evidence he would have been required to rule upon the issue whether the evidence of alleged fraud or theft by Ms Nugent was of substantial probative value on that issue. In our judgment, it clearly was not. That Ms Nugent may have been guilty of fraud upon her employers’ clients was neither here nor there in the judgement of her credibility as a witness against the appellant. By the time of trial it had been established that there was no basis on which she could have been charged.

[62]However, the purpose of admission of the evidence would have been, Ms Kaul QC explained, not to establish Ms Nugent’s bad character but to establish that the witness feared she might be charged with fraud offences. The accusations under investigation were, it would have been suggested, an incentive for the witness falsely to implicate the appellant in the murder of Mr Driver. By giving the police what she thought they wanted, she might have avoided a charge of fraud. If the application was put in this way the only hurdle to admissibility was relevance. We are prepared to accept, by a narrow margin, that the judge would have permitted cross examination of Ms Nugent on the subject of her own position as a suspect in fraud. That being so, we must examine whether Mr Macdonald QC’s inability to cross examine to this effect may have affected the safety of the verdict.

[63]Manifestly, in our view, it did not. In cross examination Ms Nugent had to deal with the accusation, which she accepted, that she had made her second witness statement because she thought she was herself going to be arrested for or charged with murder. She claimed no honourable motive for changing her account. There can hardly have been a greater incentive to change her account than fear of an accusation of murder and we do not accept that fear of a charge of fraud can have added anything to the witness’ perception of danger and self-interest or that the jury may have concluded that it might. We repeat, however, that the ultimate issue was not whether Ms Nugent had a motive for changing her account, which was admitted, but whether, when she changed it, she was telling the truth. We do not consider that knowledge of these matters can have had any impact on the jury’s judgement whether, when she changed her account, she was telling the truth.

Conclusion

[64]Contrary to the submissions made, we do not accept that the summing up was deficient. On the contrary, it was clear, accurate and calculated to assist the jury to reach a true verdict founded upon its own assessment of the evidence.

[65]We conclude that there should have been disclosure of the fraud investigation. However, the absence of proper disclosure, in the result, created no unfairness to the appellant and had no impact on the safety of the verdict.

[66]For these reasons the appeal is dismissed.