R v Poole (Anthony Keith)
|England & Wales
|Lord Justice Auld,.
|17 June 2003
| EWCA Crim 1753
|Court of Appeal (Criminal Division)
|17 June 2003
|Cases No: 2002/02985S2
 EWCA Crim 1753
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRISTOL
THE HON. MR. JUSTICE SWINTON THOMAS
Royal Courts of Justice
London, WC2A 2LL
Lord Justice Auld
Mr. Justice Keith and
Mr. Justice Simon
Cases No: 2002/02985S2
Case No: 2002/02987S2
Mr. Edward Fitzgerald, QC, and Mr. Charles Bott for the appellant, Poole Ms Vera Baird, QC and Mr. Joel Bennathan for the appellant, Mills and
Mr. Alun Jenkins and Miss Sarah Reagan for the respondent
This is an appeal, on a reference from the Criminal Cases Review Commission, by Anthony Keith Poole and Gary Mills against their conviction, on 26 th January 1990 before Swinton Thomas J. and a jury in the Crown Court at Bristol, of the murder of Hensley Wiltshire. The prosecution case was that at about midnight on 5 th/6 th January 1989, in the course of a fight, both appellants attacked Wiltshire, Mills with a crowbar and Poole with a knife, causing him severe injuries from which he died the following day. Mills' defence was that he had struck Wiltshire with a crowbar, but only in self-defence. Poole's defence was that he had not used any weapon or otherwise taken any part in the assault. They also denied that the injuries inflicted on Wiltshire in the fight had caused his death.
Since the convictions this case has had a considerable forensic history. On 16 th April 1996 the full Court, constituted by Otton LJ, Ian Kennedy and Keene JJ., granted an extension of time of four years and leave to appeal, but dismissed the appeals. The Court certified a point of law of general public importance, but refused leave to appeal to the House of Lords. The House of Lords granted leave to appeal, but on 24 th July 1997 dismissed the appeals. In October 1998 there was a trial in which Detective Inspector Gladding, the second most senior officer involved in the investigation, sued Channel 4, the makers of a television programme, for libellous allegations about his conduct in the investigation and at the trial. The jury upheld Channel 4's defence of justification. The appellants then sought a reference from the Criminal Cases Review Commission ["the CCRC"] to this Court, which, in November 2000, the Commission, after a thorough investigation, declined to make. The appellants sought judicial review of that decision, which, in December 2001, the Divisional Court, constituted by Lord Woolf, CJ and Ouseley J., dismissed. The Court held that the Commission had been entitled not to make a referral, but Lord Woolf, giving the judgment of the Court, expressed the view that "the Court of Appeal could now have a doubt about the safety of the convictions". Following a further application to, and careful consideration by, the Commission, it has made this referral.
The evidence at trial
Only two prosecution witnesses gave direct evidence of the fatal assault on Wiltshire, which took place in Poole's ground floor front room at 34 Conduit Street in Gloucester. The first was a 21 years old woman named Kimberley Stadden, without whose evidence the prosecution had no viable case against either appellant. The second was a young man called Paul White, who claimed to have been looking through the window from outside for a short time while the fight was under way.
At about midnight on the night in question Stadden had gone to Poole's room to obtain and take amphetamine. In the room were Poole, Mills, Wiltshire and a man called Juke. It is plain from all the evidence that Wiltshire had had a lot to drink – and also some amphetamine – and was in a very aggressive mood. Stadden knew Wiltshire; she had been passing stolen cheques for him over the previous few days. In her evidence she gave the following account of what happened shortly after her arrival. Mills and Wiltshire were arguing. Wiltshire was behaving aggressively, trying to pick a fight with anyone, but at that stage with Mills in particular. The two of them began to fight, punching and kicking each other, Mills with a crowbar in his hand and Wiltshire unarmed. Poole intervened and, she thought, kicked Wiltshire twice. Mills then hit Wiltshire with the crowbar several times on the legs and head, causing him to slump into a sitting position on the floor. Mills continued to hit him on the legs with the crowbar. At that point Poole pushed the blade of a knife into Wiltshire's arm. The effect of this combined assault led Wiltshire to attempt escape by the window, but he was unsuccessful and fell back onto a settee. Mills continued to attack him, punching him with his fists, causing him to fall to the floor. While he was on the floor Poole kicked him and then stabbed him four or five times in the buttocks with the knife. Much shouting followed, in the course of which Wiltshire threatened his two assailants and to smash Poole's flat. At that point the fourth man in the room, Juke, who had played no part in the violence, grabbed at Poole, saying that Wiltshire had had enough. However, the violence continued, and Juke tried to shield Stadden from sight of it by putting her head on his shoulder and covering her eyes with his hands. However, she heard something of it, which she described as a "thud" and a "squelching" noise. That was the end of the violence.
Thus, according to Stadden, all three men were aggressive and using violence; Mills and Poole had each used a weapon on Wiltshire; he was unarmed; and he, not they, suffered serious injuries in the course of the fight.
Continuing with Stadden's evidence, the incident ended with Juke saying that they should all leave. Wiltshire said that he needed an ambulance. Juke dragged him out onto the pavement and he, Mills, Poole and Stadden left him there. Stadden walked home alone. Shortly afterwards Mills and Poole also went there, where they stayed for a minute or two. Both of them were blood-stained and wanted to call for a taxi. She told them where to find a telephone kiosk and they left.
Stadden did not immediately contact the police. But a day or two later, as a result of a television news broadcast about the matter in a programme called "Crime Line", she telephoned the programme makers and told them what had happened. It emerged as a result of cross-examination of her by Mr. Ian MacDonald, QC, counsel for both appellants, that she read out to Crime Line over the telephone a written statement that she had dictated to and discussed with a friend, Kathryn Halliday (who was later to gain notoriety by selling to the Daily Mirror an account of her sexual liaisons with Fred West and as a witness in the trial of Rosemary West). That account corresponded broadly with what she, Stadden, was to say in evidence, including the allegation that Poole had attacked Wiltshire with a knife. But it also contained an allegation, not made in her evidence, namely that Mills too had stabbed him, more than once, with a knife, in addition to attacking him with the crowbar. In cross-examination, she held to her account that Poole had used a knife, but in re-examination said that her allegation in her Crime Line statement that Mills had also done so was wrong.
It also emerged in her cross-examination that her first witness statement to the police, given to WPC Moore and DC Churchill on 9 th January, though referring to Mills' attack on Wiltshire with the crowbar, had not implicated Poole in the fight at all. But, in a second witness statement given to DC Churchill on the following day, she had implicated him in the fight, saying that she had seen him kicking and jabbing Wiltshire with a knife several times in the buttocks. Her explanation in cross-examination for the discrepancy in this and other respects between her two witness statements was that she had told WDC Moore and DC Churchill about Poole's part in the attack when making her first statement, but that they had mistakenly not recorded it; hence her second witness statement in which it was mentioned. This account differed from her evidence in the committal proceedings, in which she had been less certain about what Poole had done with the knife and said that she had forgotten, when making her first witness statement, to mention his involvement in the attack on Wiltshire.
Looking forward in the prosecution evidence for a moment, three police officers were called to deal with this important discrepancy between Stadden's first witness statement and her evidence. WDC Moore and DC Churchill said that when WDC Moore had taken the first witness statement Stadden had said that she had seen Poole stab Wiltshire with a knife. WDC Moore said that she had inadvertently omitted to record it in the written statement. She had reported the omission to her superior officers and had been instructed to take a further witness statement. Superintendent Bennett, the officer in overall charge of the investigation, confirmed her evidence to the extent that, when he had learned of the omission, he had instructed her to take a second witness statement. All the officers denied expressly or implicitly the suggestion put in cross-examination by Mr. Macdonald that they had done some sort of deal with Stadden to persuade her falsely to implicate Poole in the attack on Wiltshire.
Cross-examination of Stadden also revealed an inconsistency between her evidence in chief and the account in her first witness statement of what had happened after she and the others left Poole's room. In the witness statement she had said that she had met Mills and Poole on the way back to her home, an assertion that she said in evidence had been a lie because...
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