B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND (Lord Taylor of Gosforth)
MR JUSTICE OWEN
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MR JUSTICE BLOFELD
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R E G I N A
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MATTHEW JAMES RICHARDSON
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Computer Aided Transcription by John Larking, Chancery House, Chancery Lane, London WC2
Telephone 071 404 7464
(Official Shorthand Writers to the Court)
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MR DAVID MARTIN-SPERRY appeared on behalf of THE APPELLANT
MR M GALE QC and MR L FRENCH appeared on behalf of THE CROWN
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HTML VERSION OF JUDGMENT
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THE LORD CHIEF JUSTICE: This is an appeal by Matthew James Richardson by leave of the single judge against his conviction for murder on 17 February 1992 at Lewes Crown Court after a retrial.
On 9 February 1986 the body of the deceased, Margaret Mabel Bolingbroke, was found in her flat in Brighton. On 4 April 1986 the appellant was charged with her murder. On 5 December 198 6, after a trial lasting five days, he was convicted by the jury and sentenced to life imprisonment.
The case for the Crown was that the appellant had killed the deceased on the afternoon of Friday 7 February 1986 some time before four o'clock. The Crown presented a formidable case based essentially on confessions by the appellant to the police and to others, together with circumstantial evidence. However, the deceased had been a regular attender at Sergeant Yorke's Casino in Brighton. There was a body of evidence in the possession of the Crown from witnesses who said they had attended the casino on the night of Friday 7 February -- 'the Sergeant Yorke evidence'. Some said they had seen Mrs Bolingbroke alive at the casino that evening; others said that she was not there. Before the trial, all the 'Sergeant Yorke evidence' was properly served on the defence as "unused material".
None of that evidence was called or relied upon by the defence in the December 1986 trial. The appellant himself did not give evidence. Subsequently he entered a Notice of Appeal criticising his counsel for not calling the 'Sergeant Yorke' witnesses who claimed to have seen the deceased on the Friday night. The court then asked the appellant to waive his legal privilege and, when he did so, received a statement from Leading Counsel who had appeared for him as to what had occurred. It emerged that the 'Sergeant Yorke' evidence had no relevance to the defence in the December 1986 trial because the appellant's instructions were that he, and a man called Pete, had entered the deceased's flat during the afternoon of 7 February, intending to rob her and steal from the flat, and that without the appellant's agreement Pete had gone outside the scope of the joint enterprise and killed the deceased. The appellant had even made a sketch showing the layout of the flat. In those circumstances, the defence were in no position to raise the 'Sergeant Yorke' issue.
Fresh counsel instructed by the appellant then abandoned the original grounds of appeal and drafted new grounds which sought to put in issue the time of death and to that end sought leave to call those of the 'Sergeant Yorke' witnesses who thought they had seen the deceased at the casino on the evening of 7 February.
On 1 February 1991 this court, presided over by McCowan LJ, decided to admit the evidence under the provisions of section 23(1) (c) of the Criminal Appeal Act 1968. In giving judgment, McCowan LJ made it clear that it would be for the appellant to call the witnesses upon whom he relied. He said:
"Mr Gale submits that it is for Mr Martin-Sperry to call these witnesses. That seems to us to be obviously right, although Mr Martin-Sperry had persuaded himself that the respondent should call them and that he should be given the opportunity to cross-examine. We must promptly disabuse him of that idea. If we grant his application he has to call the witnesses."
McCowan LJ went on to grant the Crown leave to call the 'Sergeant Yorke' witnesses who asserted that the deceased was not at the casino on the Friday evening.
On 9 May 1991, the appeal came back to this court, presided over by Lord Lane CJ. The court held that it would not be appropriate for the further evidence to be called before the appeal court, but that it should be heard by a jury. In the circumstances, the court ordered a retrial. That took place between 15 January and 17 February 1992. The Crown called evidence to show that the deceased, a prostitute, was alive at about 2.30 p.m. on Friday 7 February, having had a light lunch with a man named Sampson. Her accountant had an appointment to see her at 7.00 p.m. but got no response when he called at her flat. Another witness received no reply to telephone calls over the weekend and eventually contacted the deceased's son. He called at the flat on Sunday 9 February and saw his mother's body through a window. The police were called and broke into the flat.
A post mortem examination showed that the deceased had been beaten around the head so as to break bones in her face. She had been partially strangled, causing damage to the voice box. A knife had been stuck into her throat severing the carotid artery. Doctor West, the pathologist who performed the post mortem examination, thought the most likely time of death was between 30 and 48 hours before 8.00 p.m. on Sunday 9 February. Doctor Heath, another pathologist called by the Crown, considered it could have been considerably earlier.
There was clear evidence that the appellant had visited another prostitute early on the afternoon of Friday 7 February and, as he was leaving, had surreptitiously removed a knife from under her pillow where he had placed it. He was wearing a very distinctive jacket marked prominently with the name 'Marlboro'. He was seen walking in that jacket on the outskirts of Brighton at about 2.30 p.m. Another witness saw a man in a 'Marlboro' jacket going down the steps towards the deceased's flat on the afternoon of 7 February.
At 4.10 that afternoon the appellant, wearing his 'Marlboro' jacket, called at Brighton Police Station with his face badly scratched. He said he had been robbed and injured by his attackers.
On 4 April 1986 he was asked to go to Brighton Police Station and was questioned about his complaint of robbery. When pressed, he admitted it was quite untrue. Eventually he started to cry and admitted killing the deceased. He was then arrested. Two further interviews followed and, during the latter part of his interviews, a solicitor was present. The appellant made detailed circumstantial confessions to the murder and gave details which the Crown contended could not have been gleaned from press or television coverage. In essence his account of the matter was that the deceased laughed at him when he undressed and he lost his temper. She threatened him with a knife. He asked for his money back, which she refused, so he hit her. She started kicking and scratching, so he hit her again. He could not remember what happened next, but she ended up on the floor. He had searched the flat and then left.
Apart from confessing in the formal interviews, the appellant confessed to his girlfriend who visited him in custody and further confessed to a police officer unconnected with the investigation.
At the start of the retrial, Mr Martin-Sperry applied to the trial judge to order that the Crown should call the 'Sergeant Yorke' witnesses who spoke of seeing the deceased on the Friday night. The Crown declined to call those witnesses. The learned judge, after hearing argument, declined at that stage of the case either to require, or invite, the Crown to do so. However, he left it open to the defence to raise the matter again at a later stage, should they so wish. In the event, the matter was not raised again with the learned judge. The Crown called, as part of their case, a considerable number of 'Sergeant Yorke' witnesses who had not seen the deceased on the Friday night. The defence called a number who claimed they had. As in the first trial, the appellant himself did not give evidence. However, Doctor Angela Gallop, a forensic scientist, was called to say that the stomach contents of the deceased included a piece of meat. The defence relied upon this to show that the deceased must have had a further major meal after the Friday afternoon, since she had only had tea and cake at lunchtime on that day.
The first ground of appeal argued by Mr Martin-Sperry concerned the 'Sergeant Yorke' evidence. As formulated in the written grounds, the complaint was that the learned judge "failed to require the Crown" to call the witnesses who claimed to have seen the deceased on the Friday night. Alternatively, "he failed to call such witnesses of his own motion". In argument Mr Martin-Sperry conceded that the judge had no power to order the prosecution to call a witness, nor had he any obligation to call a witness himself. It was submitted, however, that the learned judge ought to have invited the Crown to call the witnesses and the Crown ought to have done so in any event.
We were referred to cases concerning witnesses on the back of the indictment, witnesses whose evidence has been served as part of the prosecution case. In regard to such witnesses, the position is stated by Lord Parker CJ in Oliva (1965) 49 Cr App R 298 at page 309 as follows:
"The prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross-examination. The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness's evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence he is going to give is inconsistent with the case sought to be proved. Their discretion must be exercised in a manner which is calculated to further the interests of justice and at the same time be fair to the defence. If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial to interfere and in his discretion in turn to invite the prosecution to call a particular witness, and, if they refuse, there is the ultimate sanction in the judge himself calling that witness."
In Nugent (1977) 65 Cr App R 40 the prosecution served as part of their committal papers the statements of eight witnesses whose names had been given to the police by the defence solicitors as witnesses who would support the defendant's alibi. At trial the prosecution declined to call the eight witnesses. Park J rejected an application that he should have invited the Crown to call the witnesses, or alternatively should have called them himself. He said at page 44:
"... the defendant has given at least two accounts of his movements on the afternoon of 2 April and those accounts are contradictory. He now seeks to force the prosecution to call eight witnesses who will support, apparently, a third version of his movements.
Almost certainly, the calling of the eight witnesses by the prosecution would be liable to cause confusion in the jury's mind about the nature of the prosecution case. It would be to impose upon the prosecution the function of both prosecution and defence. In my judgment in those circumstances, there is no duty on the prosecution to call these witnesses and I do not invite them to do so."
In the present case a similar situation had developed. It had throughout been the Crown's case that the deceased was killed on the afternoon of Friday 7 February. At the second trial the appellant sought to run a defence which was contrary to his confessions and contrary to the instructions he had given at his first trial. Against that background Mr Martin-Sperry sought to force the prosecution to call evidence inconsistent with their own case and supportive of the defence case. Furthermore, unlike the evidence in Oliva or Nugent the witnesses in question here had never been part of the prosecution case. Their statements had been served on the defence as unused material. That is precisely the course which was recommended in the case of Balmforth (not reported; judgment of this court on 12 June 1992) . At page 7 of that judgment Staughton LJ said:
"That is a wide discretion and one which prosecution counsel is entitled to exercise. But once he has formed the view that the witness is capable of belief, then, as the Lord Chief Justice said, the prosecution must call the witness, even though the evidence he is going to give is inconsistent with the case sought to be proved. It is suggested that any such doctrine would cause inconvenience. If that be so, the remedy may be not to include in committal papers witnesses who are inconsistent with the prosecution case and whom the prosecution would not wish to call at trial."
In all the circumstances, we consider the learned judge was right not to accede to the application. To have pressed the Crown to call the witnesses would in effect have required them to act as both prosecution and defence. As it was, Mr Martin-Sperry was able to call the witnesses as part of his case and six of them, he said, came up to proof. When my Lord, Blofeld J, in the course of argument, asked him what more he would have hoped to have got from these witnesses by cross-examining them than he got by examining them, Mr Martin-Sperry was in some difficulty in providing an answer. This ground of appeal fails.
Allied to it were two subsidiary grounds. Under ground (4) it was submitted that the learned judge, in summing up the 'Sergeant Yorke' evidence, did so unfairly and misleadingly. Under ground (6) it is said that he failed to deal with all the material bearing on the time of death as a single body of evidence in which the constituent parts supported each other.
Taking those two grounds together, as Mr Martin-Sperry himself did, the complaint is of the manner in which the learned judge structured his summing up. There were three factors relevant to the time of death: the 'Sergeant Yorke' evidence, the pathologist's evidence based on the state of the body at post mortem, and Doctor Gallop's evidence about the piece of meat. The submission is that these three should all have been treated as an integral element in the case and related to one another. In our judgment the pattern of the summing-up, in what order and under what headings the evidence is marshalled, are matters wholly within the trial judge's discretion. Providing that he fairly reviews the essential features of the evidence, the structure of his summing-up cannot be impugned simply because the defence would have preferred a different format.
However, it is further contended that in three instances the learned judge's summary was misleading, or inaccurate. Both Mrs Vankan and Miss Crocker said that they saw the deceased with a man in the casino on the Friday night. They gave different descriptions of the man. The learned judge pointed this out. Mr Martin-Sperry's point is that the two witnesses were referring to different times on the Friday night and the men could well have been different men. However, the learned judge did not in terms suggest otherwise.
Secondly, it is said that the description given by Mr Adlam of the deceased sitting at table 6 between three and four in the morning, and of the man she was with, tallied in many details with Miss Crocker's description of a similar scenario. Yet the learned judge did not specifically highlight the comparison. The learned judge did, however, remind the jury accurately of that evidence. In any event, Mr Adlam's final position was that he did not know whether his sighting had been on the Friday night, or on some earlier night.
The third point made by Mr Martin-Sperry on grounds (2) and (4) is that the learned judge erred in his summary of the evidence bearing on Doctor Gallop's discovery of the piece of meat and some cucumber. Mr Sampson, the man with whom the deceased had her light lunch, spoke of their usually having sandwiches, but in his evidence as to the particular day he did not suggest that the deceased ate any sandwich, although he himself did. She had tea and cake. Accordingly, the learned judge was wrong to suggest that the meat might come from a sandwich. Accepting the criticism, we do not consider the point to be of crucial significance. At some time during Friday the seventh, either before or after the tea and cake, but before the Crown's suggested time of death, it would have been possible for the deceased to have consumed something containing meat and cucumber. In the result we do not consider that grounds (2) and
(4) are made out.
Apart from the 'Sergeant Yorke' evidence, there were two other witnesses who claimed sightings of the deceased after the deadline of 4.00 p.m. on Friday 7 February for which the Crown contended. Mr Martin-Sperry complained at the learned judge's treatment of that evidence. He sought also to raise two further grounds although, as he himself put it, less whole-heartedly than grounds (1), (2) and (4). Finally, there were several grounds which, although not formally abandoned, Mr Martin-Sperry did not seek to argue. We have examined all of those grounds. We have concluded that none of them, either singly or taken together, would afford a sufficient basis for doubting the verdict of the jury. Accordingly, this appeal must be dismissed.
