R v Goodway
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 29 July 1993 |
| Judgment citation (vLex) | [1993] EWCA Crim J0729-22 |
| Docket Number | No. 92/4559/Z2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 July 1993 |
[1993] EWCA Crim J0729-22
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Alliott and Mr Justice Buckley
No. 92/4559/Z2
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR R MARSHALL-ANDREWS QC and MR PATRICK LAWRENCE appeared on behalf of THE APPELLANT
MR G PARKINS QC and MR E JENKINS appeared on behalf of THE CROWN
( As approved)
Thursday 29 July 1993
THE LORD CHIEF JUSTICEOn 6 July 1992, at the Crown Court at St Albans, this appellant was convicted and sentenced as follows: on count 1, for murder, life imprisonment; on count 2, for wounding with intent, three years' imprisonment to run concurrently. He now appeals against conviction by leave of the single judge.
The charges against the appellant arose from a fracas which occurred in the late evening of 2 August 1991 at Hemel Hempstead. Having regard to the conclusion we have reached, it is unnecessary and indeed undesirable to review all the involved and conflicting evidence in detail.
The appellant and his wife, together with others including a man named Chapman, had attended a wedding reception at a community centre. The victim on count 1, Nancy Carpenter, and the victim on count 1, Martin Quilter, had with others, including a man named Fitzgibbon, been at a public house nearby. Both parties had had much to drink. Trouble developed when those coming from the public house met those emerging from the wedding reception. Mr Fitzgibbon said he was confronted by a man who smashed a bottle he held in his hand and threatened to kill him. There was evidence that that man was Chapman. Meanwhile, a fight broke out between the appellant's wife and the deceased, Nancy Carpenter. The former struck the latter on the head with a shoe. The appellant's niece, Bridget Pearcey, gave evidence that a man ran over and shouted at the deceased: "That was my wife." He had a broken bottle in his hand. Bridget turned away, but looking back she saw the same man holding the deceased and waving an object around. She did not know if it was still the broken bottle. When she looked again, the deceased was lying on the ground and the man who had held her ran a short distance to Quilter, the victim in count 2. Quilter said he was head-butted and stabbed. He was on the ground when the police arrived and they restrained the man who had run to him.
The Crown contended that that man was the appellant, that he had stabbed the deceased with a knife and then wounded Quilter.
One Paul Whetter was tendered by the Crown and cross-examined. He agreed he knew Chapman and had seen him near the community centre carrying a long kitchen knife and a long piece of metal. He thought Chapman went and got the weapons from a van.
When the police arrived, Chapman was lying across the body of the deceased on the ground. He was pulled away and seen to be carrying two metal bars, parts of a tent pole which could be fitted together to form one bar. Chapman was 'completely deranged'. He ran to a lamp post and repeatedly struck it with the metal bars until he was arrested.
The deceased had been stabbed through the heart. She lay in a pool of blood. A knife found under her body admittedly belonged to the appellant. There was much blood on the appellant's clothing. Most was of the same group as that of the deceased and some stains were of the same group as Quilter's. Chapman had no blood on his clothes.
The appellant was arrested. Subsequently he was interviewed three times. In the first interview he said he had been in the community centre, and on emerging, witnessed a fight between his wife and a young girl. He tried to reach his wife, but a blow to his head knocked him to the ground. He had not carried a knife that evening.
In the second interview, he gave a similar account, adding that he never got within ten yards of his wife before he was knocked down. He accepted that the knife found under the deceased was originally from his kitchen. He said he had lent it to a friend, and it was the defence case that Chapman must have got it from the van which took them to the reception.
In the third interview, the appellant spoke of Chapman losing control of himself when under the influence of alcohol.
The appellant did not give evidence. The defence contended that Chapman, not the appellant, had the knife and was responsible for killing the deceased. Reliance was placed on Whetter's evidence that Chapman had a knife, on Chapman's position lying over the deceased's body when the police arrived, the fact that he seemed deranged and whatever the appellant may have done to Quilter was not done with the knife which killed the deceased because it remained underneath her.
The Crown relied on Bridget Pearcey's evidence, the blood on the appellant's clothes, the facts that the knife was his, and that he had entered the fray in support of his wife.
They also relied on the lies told by the appellant in interview when he claimed he had been nowhere near either victim.
The appellant's wife had pleaded guilty to common assault. Chapman had pleaded guilty to affray, but did not appear at the appellant's trial. Photographs of the appellant and Chapman showed them to be strikingly similar in appearance.
A statement was taken from a witness named Keen in the early hours of the morning. It was a circumstantial account of the episode in which he claimed to have seem Chapman striking the deceased. The Crown did not call him, but the defence did. In evidence he denied seeing Chapman at the scene. The learned judge acceded to a request by defending counsel to be allowed to treat Mr Keen as a hostile witness. He was then cross-examined on his statement. So far from adopting any of it, he persistently asserted that it was untrue. Asked repeatedly why he had made an untrue statement, he said at various stages that he had made it up and at others that he had merely repeated what he had overheard others saying.
Following Mr Keen's evidence, there was argument in the absence of the jury as to how it should be treated by the jury. It was submitted on behalf of the appellant that Mr Keen's explanations for making the previous statement were wholly unbelievable, lies in fact. If the jury believed the only reason he was lying was that the original statement was true, they could act upon it. The learned judge ruled that since the contents of the previous statement had been totally disavowed by Mr Keen, it could not be treated as evidence. Further, in all the circumstances, the jury would probably conclude that Mr Keen was wholly unreliable and was of no value to either side.
The first ground of appeal is that the learned judge's ruling about Mr Keen's evidence was wrong. Mr Marshall-Andrews no longer argues that the previous inconsistent statement, which Mr Keen repudiated, could be treated as evidence. To that extent, he resiles from the submission he made to the learned judge. Instead, he contends for the same effect by a different route. The argument runs as follows. Mr Keen's assertion that the contents of the statement came from his imagination, or from remarks made by others, was incredible. The detail and coherence of the statement ruled out those explanations. If the jury concluded that there was no other reason for them, they could deduce that the lies were told to conceal the truth of the original statement. Thus, although the jury could not treat the statement itself as evidence, they could infer from Mr Keen's lying about it, that the truth was the opposite of what he said in evidence.
In our judgment, this ingenious if convoluted argument is fatally flawed. Its effect would inevitably be to substitute the contents of the previous statement for Mr Keen's denial of them, however adroitly Mr Marshall-Andrews sought to circumvent that forbidden territory. The witness had given two totally different stories. On Mr Marshall-Andrews' hypothesis, he had further told and persisted in blatant lies on oath as to the reasons for that conflict. To draw an inference from such an unsatisfactory witness that either version was correct, is precisely the hazardous exercise against which the rules of evidence are designed to guard.
Mr Marshall-Andrews further submits there is no absolute rule that a hostile witness must be wholly disregarded by the jury, and the learned judge's direction was too dismissive of Mr Keen. Counsel referred the Court to a number of authorities on this point: Golder 45 Cr App R, 5; Driscoll v The Queen (High Court of Australia) 1977 CLR, 517; Pestano and Others (Judgment 3 January 1981); and Thomas (Judgment 18 March 1985). We accept that there is no absolute rule and that it is a matter for the judge's discretion as to what advice he gives the jury. For example, if a witness, reminded of his previous statement, adopted it and gave a sensible explanation of his initial evidence at variance with it, he might retain credibility. However, in the present case, the learned judge was in our view justified in directing the jury as he did. In any event, the only admissible evidence Mr Keen gave was of no assistance to the defence.
The second ground of appeal is that the learned judge failed to sum up the case fairly. The complaint is not of bias or hostility, but that the defence case was not put clearly and coherently. The appellant did not give evidence, so there was no positive account from him to be summarised. But the issue at...
To continue reading
Request your trial
-
Ebanks (KF) v R
...1 W.L.R. 1181; [1993] 2 All E.R. 998, applied. (6) R. v. Dehar, [1969] N.Z.L.R. 763, dicta of Turner J. applied. (7) R. v. Goodway, [1993] 4 All E.R. 894; (1993), 98 Cr. App. R. 11, applied. (8) R. v. Hill, [1996] Crim. L.R. 419, considered. (9) R. v. House, [1994] Crim. L.R. 682, applied. ......
-
Henfield et Al v Commissioner of Police
...appeal to that extent is allowed. Appeal allowed in part. Conviction on count I quashed.” 89 The court was also referred to the case of R v. Goodway [1993] 4 All E.R. 894 a decision of the Court of Appeal of England, Criminal Division. The judgment. of the court was delivered by Lord Taylor......
-
Henfield et Al v Commissioner of Police
...appeal to that extent is allowed. Appeal allowed in part. Conviction on count I quashed.” 114 The court was also referred to the case of R v. Goodway (1993) 4 All E.R. 894 a decision of the Court of Appeal of England, Criminal Division. The judgment of the court was delivered by Lord Taylor......
-
Jordan Thompson v R
...which was not in keeping with the R v Lucas (1981) 73 Cr App R 159 (CA) direction which has been upheld by this court. Counsel relied on R v Goodway [1993] 4 All ER 894; 98 Cr App R 11, (CA) for a statement of the full and proper direction in those circumstances. Counsel also complained th......
-
Silence: Lord Taylor's Legacy
...Vyeandothersinrelationtogoodcharacter...'.102[19811QB 720, 724perLord LaneCJ.103 R v Goodway [1993] 4 All ER 894, 900, 902.104 S. Greer, 'The Right to Silence: A ReviewoftheCurrentDebate'(1990) 57 MLR729, 730.154THEINTERNATIONALJOURNALOFEVIDENCE&PROOF SILENCE:LORDTAYLOR'SLEGACYAnassessmento......