Paul Mark Kelly v The Queen

JurisdictionEngland & Wales
JudgeLord Justice Pitchford
Judgment Date15 May 2015
Neutral Citation[2015] EWCA Crim 817
Docket NumberCase No: 2013 06330-C1
CourtCourt of Appeal (Criminal Division)
Date15 May 2015
Between:
Paul Mark Kelly
Appellant
and
The Queen
Respondent

[2015] EWCA Crim 817

Before:

Lord Justice Pitchford

Mr Justice Walker

and

Mr Justice Cranston

Case No: 2013 06330-C1

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM BRADFORD CROWN COURT

Mr Justice Coulson

T20107371

Royal Courts of Justice

Strand, London, WC2A 2LL

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

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

Hearing dates: 8 May 2015

Lord Justice Pitchford

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....

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