R v Mawhinney
R v Mawhinney
 EWCA Crim 2234,  All ER (D) 560 (Jul)
Judgment Date: 30/07/2004
Catchwords & Digest
CRIMINAL LAW, EVIDENCE AND PROCEDURE – TRIAL – DIRECTION TO JURY – STATUS OF EVIDENCE – ADEQUACY OF DIRECTIONS
The defendants and co-defendant were charged with and denied alternative offences of murder and conspiracy to cause grievous bodily harm. The prosecution’s case was that the defendants had carried out a punishment killing of the victim having suspected him of theft of a sentimental ring from a family member and that the co-defendant had made sure that the victim was alone by taking the victim’s wife out of the house. The prosecution further relied on witness evidence from a police informer whom the defendants had approached and asked him to provide them with a false alibi. The witness had a record of dishonesty and was in debt and some of his evidence was undermined by other circumstantial evidence in the case. The circumstantial evidence included the fact that the defendants and co-defendant had kept each other company on the evening preceding the murder and telephone records of calls having taken place between them at relevant times. The issues at trial were whether the defendants had been present at the time of the attack, whether they had participated, and whether they had the necessary intent for murder. The judge, inter alia, directed the jury of the special need for caution when considering the witness’s evidence in circumstances where there was no independent evidence to support his account. The defendants were convicted of murder and the co-defendant was convicted of conspiracy to cause grievous bodily harm. The defendants appealed against conviction.The defendants contended, inter alia, that the judge should have directed the jury not to rely exclusively on the witness’s evidence to determine the defendants’ guilt because it was unreliable, or should have directed the jury not to convict the defendants of murder solely on the basis of circumstantial evidence.
Held – The appeal would be dismissed.The conviction was safe because the judge had adequately directed the jury in the circumstances.The jury was entitled to consider the whole of the evidence taking into account that the witness had originally become involved as an alibi witness, the admissions and the circumstantial evidence. Moreover, there had not been a defence application to exclude the alibi evidence at trial and the judge had properly warned the jury of the need for caution when considering the witness’s evidence. In the circumstances, the jury had been entitled to convict the defendant on the circumstantial evidence alone.The conviction would be upheld.
Court of Appeal
The decision was appealed and judgment was delivered on 29th June, 2012.
One of the grounds of the appeal (at Paragraph 8 of the 2012 Judgment) was 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 close of the prosecutions’ case.
It is notable to mention that the trial judge gave careful consideration to the evidence, arraigned 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 (Paragraph 15 of the 2012 Judgment).
Paragraphs 17-21 are relevant to this issue and are hereinlisted.
 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 Kelly Keeley. 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 Kelly Keeley. 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.”
 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  EWCA Crim 1163 and R v Alobaydi  EWCA Crim 145.
 Apart from the apparent discrepancies and inconsistencies contained in the evidence of Kelly Keeley 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  2 Crim App Rep 40 CA and R v R  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  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 Kelly Keeley 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.
 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 Kelly Keeley 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 Kelly Keeley’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  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 para 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.”
 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.
The Court of Appeal Judges were not persuaded that the conviction was unsafe and the appeal was dismissed.