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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McCann, R v [2000] EWCA Crim 105 (28 November 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/105.html Cite as: [2000] EWCA Crim 105

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Tuesday 28th November 2000

1. THE VICE PRESIDENT: On 14th June 1990, at Cardiff Crown Court, following a retrial before Ognall J, the appellant was convicted on count 1, which charged murder, of manslaughter, and on count 2, of robbery. He was sentenced respectively to 10 and 5 years' imprisonment concurrently.
2. On 11th October 1991 his renewed applications for leave to appeal against conviction and sentence were refused by the Full Court. He now appeals against conviction on a reference by the Criminal Cases Review Commission, under section 9(1) of the Criminal Appeal Act 1995, on the basis that the medical records of the prosecution witness, Bridget McCann, were not disclosed to the defence at the time of trial and there is now fresh expert medical evidence available which casts doubt on her credibility as a witness.
3. There was a co-accused, the appellant's sister, Susan. She pleaded guilty to handling stolen goods, but that plea was not accepted, and she was tried for robbery and manslaughter. On the direction of the trial judge a verdict of not guilty of manslaughter, in relation to her, was returned, but she was convicted of robbery, and sentenced to 4 years' imprisonment.
4. In summary, the deceased, who was a 57 year old man called Richard Holdsworth, lived in a flat in Cardiff. The appellant's father, his sister, Bridget, and her common-law husband, Jock Walker, shared the flat above the deceased. The deceased was in the habit of keeping substantial quantities of money about his person and in his flat. Indeed he wore braces to keep his trousers up against the weight of coinage which was carried.
5. It was the case for the prosecution that, on the late afternoon of Saturday 22nd July 1989, the appellant and Susan burst into the deceased's flat in order to rob him and, in the course of that activity, the appellant smothered the deceased to death with a pillow. This was said to have been witnessed by his sister, Bridget, who had followed the two accused down from the flat above.
6. The appellant's case was that his two sisters were falsely blaming him for a crime which they had themselves jointly committed, in that, he, the appellant, had never been in the deceased's flat at all. He claimed that he had been told by his sister that the deceased had died as a result of sexual excitement after oral sex with Bridget. The sisters were trying to obtain from him money for drink.
7. Bridget McCann gave evidence before the jury that, during Saturday 22nd July, there had been a disturbance involving the appellant and their father, which resulted in the police being called. They had all been drinking lager together. Later on, according to Bridget, the appellant went downstairs, followed by Susan. She, Bridget, heard shouting and saw the appellant with his foot in the door of the deceased's flat, the deceased refusing to let him in. She said that the appellant pushed him back onto his bed and put a pillow on his face which he held there for 10 to 15 minutes. Susan tried to pull him off but the appellant was too strong. Susan told him to stop as he was killing the man. The man shouted that his heart was bad. He went bluish/purple. Susan tried to revive him with water. Money was taken, in particular, two bags of money were handed by the appellant to Susan.
8. Thereafter, in front of their father, according to Bridget, Susan said that the appellant had killed the deceased. The appellant said that, if he was got into trouble by what they said, that would have consequences for them. When Jock Walker came into the room, so that he, the appellant's father, the two sisters and the appellant were together, Susan repeated that the appellant had smothered the deceased. The appellant said that if he was charged he would have them all in trouble. He held a razor to Bridget's neck and threatened to cut her throat.
9. She agreed when she was cross-examined that she had received hospital treatment, but, she claimed, that was for her legs not for any drink problem. She also said that the appellant had borrowed £10 from their father on the Friday evening, the 21st. She agreed that she had told some lies to the police. She said that she had been in the flat during these events, but was frightened of the appellant, and had not, in consequence, been fully frank. She denied that it was her suggestion that she and Susan go to the flat for money, and she denied having performed any sexual favours for the deceased.
10. The appellant's father gave evidence. He described his daughters telling him that the appellant had smothered the deceased and he saw bank notes in Susan's possession, which he said had come from the deceased's flat. He knew of no ill-feeling between his three children. He said that the appellant had shown them a razor and said that, if he was arrested, he would use it on them if they said anything.
11. Matters were taken a little further by the evidence of Jock Walker. He said that, in the presence of the appellant, Susan had said that he, the appellant, had smothered the deceased. According to Jock Walker, that evoked from the appellant a threat with a razor if she said anything. He, Jock Walker, described the appellant, whom he said he did not like because he was an animal, as being a very wild man when in drink. There was also evidence from a police constable who had been called to the McCanns' flat earlier in the day, that all there were the worse for drink.
12. There was evidence that the deceased would have been incapable of defending himself against a fit person. There was also evidence from the deceased's sister that, two days before his death, there had been a quantity of money in various denominations and places in his flat. On that day, the pillow case on his pillow was undamaged. The day after the killing, the flat was in disarray. Most of the money had gone.
13. The postmortem examination revealed no positive signs of suffocation, but the condition of the vital organs was not inconsistent with suffocation. There were bruises on both the deceased's arms, which were consistent with him having been pushed backwards, through a doorway, with his arms outstretched. There was no sign of semen on a swab taken from the deceased's penis. He suffered a heart condition and it was a possibility that someone with that condition might die from it rather than from suffocation. But there was no sign whatever that he had in fact died from his heart condition.
14. There was evidence, in particular from two barmaids, that on the Friday evening, the 21st, the appellant had been offering to read palms for a price which came lower and lower and culminated in acceptance of cans of beer. But there was evidence that, on the Saturday evening, the appellant was flush with money and buying drinks for others apart from himself. There was also evidence that the following day, the Sunday, the appellant spent £30 in another public house.
15. There was forensic evidence of an examination of the deceased's pillow which had an L shaped, 6 inch, tear in it and some bloodstaining. The tear could have been caused by the pillow being pressed over the face so as to stretch it, but it was an old pillow case, so that was not a certain conclusion to draw. There were no fibres found connecting the deceased and the appellant. But the fabrics involved would not necessarily have shed fibres, or, if they had, they might well have disappeared in 24 hours. There were no fingerprints from the appellant in the deceased's flat, but Bridget's fingerprints were found on the outer door and inner door frame and on a wardrobe door in the bedroom.
16. When he was interviewed, the appellant denied involvement in these matters. He claimed not to know the deceased. He said that he had never been inside the flat on any occasion, and said that he was not badly affected by drink on that day.
17. The appellant gave evidence before the jury along similar lines. He said that he had never been in the deceased's flat and he claimed that his family were conspiring to have him convicted of a killing of which he was innocent. He claimed that the deceased must have died as a consequence of oral sexual activity with one or other of his sisters. He said that he did not like his father. He said, so far as the money in his possession in the latter part of this weekend was concerned, that he had borrowed £50 from a man called Price, who also gave evidence before the jury. He had also borrowed £5 from Susan and £10 from his father. He claimed that the palm reading to which we have referred had taken place on the Saturday evening not the Friday. He said that his sister Bridget was an alcoholic. He said that he had quarrelled with his father earlier in the day, but made up with him after the police arrived. After that he had fallen asleep for an hour-and-a-half and then awakened and then fallen asleep again. He said that, at the Magistrates' Court, Susan told him that she and Bridget had gone to the deceased's flat to get money. Bridget had been unable to open the wardrobe door, so Susan had done that, and she had left Bridget to get the money. Bridget had said that she would be five minutes because she was going to give the deceased a 'blow job'. Susan, according to the appellant, had also told him that Bridget had said that the deceased had gone blue.
18. The appellant said that the police had come to the flat 5 minutes after he had woken up and he did not know why. He had never threatened anyone with a razor. He had not been accused by his sister of smothering the deceased. He said that the money that he had borrowed had been spent on drink.
19. He said that there was no ill will between him and his sisters and he did not understand why either should tell lies about him. He denied having told Susan to say nothing about what he had done, and he claimed to have written to her from prison, advising her to tell the truth.
20. James Price, from whom money was said to have been borrowed, gave evidence that on a weekend, probably 22nd July weekend, but he was not sure on which day, he had lent the appellant £50.
21. Susan gave evidence before the jury. She said that she had not been party to the robbery. That had been committed by the appellant and Bridget. But she had been given money that had come from the deceased by the appellant.
22. She said that it was on the Friday that the appellant had been telling fortunes. On the Saturday, she said the appellant had been asleep. Bridget had wakened him and asked if he wanted to get some money from downstairs. The appellant had said "show me". The three of them had gone down. Bridget had knocked on the door and asked to borrow £3. The deceased had said 'no'. The appellant put his foot in the door and pushed the deceased back into the flat and onto his bed. When the deceased complained about his heart, the appellant told him to shut up and put the pillow over his head.
23. She tried to pull the appellant off, but failed, and when, eventually, the pillow was removed the deceased was blue in the face. She, Susan, went for water, and the appellant went round the room wiping fingerprints away. Bridget gave the appellant two bags of money. She said that she had been told to keep her mouth shut by the appellant, who had waved his fist at her. What the appellant claimed she had said to him at the Magistrates' Court was untrue. What had actually happened was that the appellant had told her to say that Bridget had had sex with the deceased and that she would in consequence get off with merely the offence of handling to which, as we indicated, she had pleaded guilty.
24. On the appellant's behalf, Mr Blake QC submits that the convictions of the appellant are unsafe because they were not based on all the material evidence which should have been available to the defence at the trial. The failure to disclose Bridget's medical records deprived the defence of the opportunity of obtaining expert medical evidence as to her reliability. As will emerge, this Court, in due course, heard oral evidence to which we shall come, in relation to that aspect of the case.
25. Mr Blake's submission is that the expert view, unanimously held, is that Bridget McCann displayed signs of organic disease resulting from her excessive consumption of alcohol over many years. It had given rise to neurological defects which affected her ability to walk properly and the damage to her nervous system was such that she may have been suffering from Korsakoff Syndrome. Whether or not she was was a matter which could not be investigated at the time of trial because of the want of disclosure to which we have referred.
26. Between the first and second trials, the solicitors for the appellant wrote to the Crown Prosecution Service seeking disclosure of Bridget's medical records. This was refused by the Crown Prosecution Service, on the basis that they were not relevant to the case.
27. The reality, submits Mr Blake, was that the prosecution knew perfectly well that Bridget McCann was an alcoholic and that she had been admitted to Whitchurch, the local psychiatric hospital, for examination because of her excessive drinking. But that was an aspect of the matter which the defence were unable properly to explore at trial, so as to establish the highly significant impact on Bridget and her reliability of the excessive drink which she had consumed.
28. The position with regard to disclosure, as revealed by the investigations of the Criminal Cases Review Commission, is that the lawyers involved at the time of trial differed in their recollection as to what was and was not disclosed. But this appeal has been conducted before this Court on the common ground that it is safe to assume that the medical records of Bridget never were disclosed at the time of trial, although they had been sought by the defence.
29. Mr Blake drew attention to significant differences in Bridget's account of events when comparing the terms of her first interview with the police, on 24th July, of 1989, her second interview in early August and the evidence which she gave at the first trial in February 1990 and the retrial in June 1990. For example, he drew attention to the increased precision of her account in her second interview, compared with her first. He drew attention to the fact that, at the first trial, she made no reference to any struggle by the deceased in the doorway of his flat, although she described that at the second trial: that is a matter which perhaps does not progress the appellant's case far, bearing in mind that, in the August 1989 interview, Bridget had given a description of such a struggle.
30. But Mr Blake, perfectly properly, drew attention to the ways in which it could be said that her account of events developed over a period of time, and in response to questions: for example, at the first trial the way in which she described the deceased as having been pinned down by the appellant and the way in which an object thrown in the course of the argument earlier in the day was transformed, in her account, from initially being a cup to being a sauce bottle. These and other illustrations, Mr Blake submits, demonstrate the suggestibility of Bridget at the behest of others. Furthermore, the inadequacy of her recollection was demonstrated by the fact that, at the second trial, she was quite unable to remember her own address. Indeed, she gave an address which was not the address at which she lived.
31. Had the defence had available to it at trial the medical evidence now available, Mr Blake submits that one of three possible consequences would have followed. First, if the evidence had been called in the absence of the jury, before Bridget gave evidence before the jury, the judge might well have excluded her from giving evidence at all, on the ground that she was incompetent, in the light of the evidence. Secondly, the effect of that evidence, at that stage, might well have been to cause the judge to exclude the evidence because of its impact on the fairness of the trial under section 78 of the Police and Criminal Evidence Act. Thirdly, if the judge had ruled that Bridget was competent to give evidence and that her evidence should be admitted, notwithstanding section 78, the medical evidence would also have been heard by the jury. In consequence, they would have been in a far better position to assess Bridget's reliability, in the light of the warning which they must necessarily have been given by the trial judge, in his summing-up, that they must exercise great care in approaching her evidence in view of the medical evidence and its impact upon her possible reliability.
32. There were a number of reports before this court, including one obtained by the prosecution. It was not suggested by Mr Llewllyn-Jones QC, on behalf of the prosecution, that this Court should not receive that evidence under section 23 of the Criminal Appeal Act, it being fresh and apparently credible evidence appropriate for the court to consider. Mr Blake additionally succeeded in persuading the Court that we should hear oral evidence from three of the doctors whose reports were before us.
33. It is therefore necessary to refer briefly to the substance of the oral evidence of each of these doctors. Dr Khan had prepared a report on 24th September 1994. He is a highly qualified psychiatrist, and he is particularly experienced in relation to those who are affected by drink. Indeed, some 50% of his patients, he told us, have alcohol related problems.
34. He had looked at the medical records of Bridget which indicated that, from 1981, when she was about 18 or so, she was showing signs of alcohol abuse. By September 1988, she had had an epileptic fit and, as a result of that abuse, her liver was damaged and inflamed. She had reduced power in her limbs. By April 1989, although she was denying having any problems with alcohol, alcohol damage had occurred to the nerves supplying her limbs. It was capable of being treated, but without treatment it would get worse. She was referred to a psychiatrist. She had no major psychological disorder, if the answers given by her to questions could be trusted, but there were indications in the records that she had memory problems. The appropriate diagnosis, at that time, was alcohol abuse, with peripheral neuropathy. In August and October 1989, she was seen by Dr Keen and her Registrar and, at that time, she was, characteristically, denying being a heavy drinker. Such a denial, Dr Khan said, can be the result of damage to the memory.
35. Alcohol induced amnesia was, as Dr Khan put it, a symptom early in the career of an alcoholic. Dr Khan's view was that Korsakoff's psychosis was present. That demonstrates damage to the part of the brain involved in memory. Unless treated very vigorously that is not a condition from which someone suffering from it recovers.
36. Postmortem examination of Bridget's brain, after she had died in June 1991 as a result, sadly, of alcohol abuse, would have helped in relation to the correct diagnosis.
37. One of the consequences, Dr Khan said, of the organic damage to Bridget would be confabulation; that is to say, filling in gaps in her memory and making things up. Confabulation tends to be associated with Korsakoff's psychosis, although it may not be present.
38. People with Korsakoff's psychosis cover up their memory deficit in subtle ways. Dr Khan did not think that there was evidence of alcoholic dementia because Bridget could converse and those conversing with her would, generally speaking, think that she was perfectly normal. The expectation would be that, with continued drinking, her condition would deteriorate. But, had psychological tests been carried out, at the time of trial, or before she gave evidence, that would have shown up discrepancies in her memory, which were not discernible on the comparatively crude tests which had been carried out by Dr Keen.
39. Dr Khan drew attention to statements by Bridget, suggesting that she did not understand the concept of time when she was giving evidence at the second trial. He also referred, as we have done, to her apparent ignorance of her own address. These matters, said Dr Khan, showed that her memory was unreliable and, in consequence, it was impossible to be sure that what she said had or had not in fact happened. She would be suggestible at the behest of others, and there would be no reliable means of knowing whether any answer she gave was the result of accurate memory or suggestion in the questions, or had been the product of suggestion from some other source.
40. When he was cross-examined, he said that what she described in relation to an event would be unreliable because of her difficulty in retrieval of the memory of what had occurred. But, he said, it was possible to assess the accuracy of what she said by reference to accurately proved facts. He said that there might be bits of her memory which were true. He accepted that, in August 1989, there was no sign of formal thought disorder. She was orientated. There were, however, signs that her short-term memory was bad. He commented, "she may lie, she may tell the truth," so one should look at external circumstances independently provable in order to determine whether what "she said was true or not.
41. Dr Keen's report of 13th September 1999 was before the court. She alone of the doctors whom we heard had seen Bridget in 1998 and 1989. The notes were made by her Registrar. She said that, with hindsight, perhaps, in 1989 she should have raised the question of whether Bridget should appear in court. But, she was a voluntary patient Dr Keen said, in her evidence in chief, that, if she had been asked, she would have said that she would be an unrealiable witness. However, when she was cross-examined, she accepted that in 1989, Bridget had passed most of the tests of memory, which she, Dr Keen, had given her, and she did not raise the question of her reliability as a witness. She would have raised it if she had thought that she should not give evidence. She also said that, if she had suggested to Bridget that she should come into hospital for tests for her alcohol problem, she would have refused to do so.
42. She said, in re-examination, that she still felt that Bridget was not reliable because her memory changed from day to day.
43. Professor Kopelman, whose report of 26th May 1998 is before the Court, is a highly distinguished expert in this field. His conclusion was that Bridget was suffering either from the Korsakoff's Syndrome or, from alcoholic dementia, with other cognitive problems. But it was impossible to say which because tests had not been carried out on her at the time.
44. The tests which he would have wished to be carried out before she ever gave evidence at all, would have been of a neuropsychological nature, properly to assess the extent of her deficits. Indeed he said he would have liked either an MRI brain scan or a CT scan. He said it would have been difficult to assess Bridget because she was largely illiterate and so the sort of reading tests which are sometimes used could not have been used. But, he said, it would have been possible, in the alternative, to use visual images for the purpose of testing. He also said that there would be difficulty in testing her because she had a low IQ, but it would have been possible to get some general idea of her mental capacity.
45. Professor Kopelman pointed out that, on 2nd October 1989, which was a few days before the committal proceedings, Bridget was anorexic and vomiting, which would make her particularly vulnerable to loss of Thiamin, a lack of which can lead to Korsakoff's Syndrome. The crude tests carried out, at that time, by Dr Keen amounted, in Professor Kopelman's view, to a demonstration of the need for neuropsychological assessment before she went to court.
46. In the absence of expert medical evidence derived from neuropsychological assessment, it would not be possible for a lay person accurately to assess the impact upon Bridget reliability of the alcoholic damage which she had suffered. He too drew attention to a variety of inconsistencies, in the statements which she had given from time to time, in support of his conclusion that she was suffering from one or other of the conditions to which we have referred.
47. He was asked, in cross-examination, whether he was surprised that the accounts which she had given on 24th July and in early August 1989, in interview, at the committal proceedings in October 1989, at the first trial, in February 1990 and at the second trial in June 1990, were consistent in describing the appellant as using a pillow to smother the deceased. He was asked that question several times. Ultimately, his answer was that this did not surprise him that much given the inconsistencies which were also to be found in her accounts. He accepted that if she gave an account of something which was capable of independent confirmation, that would be one way of testing her reliability.
48. There were also admitted by the Court in evidence reports from Dr Bellamy, dated 8th November 1993 and, on behalf of the prosecution, from Dr Joseph dated 14th December 1999.
49. Mr Blake's overall submission was that, in the light of all this evidence, there was clearly sufficient brain damage to cause a severe impairment of memory which, at the very least, severely diminished Bridget's capacity to give evidence. In consequence, he submits that the verdicts are unsafe because the jury were in no position, in the absence of the medical evidence which this Court has heard, to realise the full measure of Bridget's unreliability through alcohol damage.
50. So far as the other evidence in the case relied on by the prosecution is concerned, Mr Blake submitted that Walker's evidence of the threats made by the appellant might be explicable on the basis that the appellant, in saying that if he got arrested the others would regret it, was emphatically asserting that he was not going to go down for someone else.
51. Mr Blake submitted that, without Bridget's evidence, there would have been no case for the appellant to answer at the close of the prosecution case. He conceded that Susan McCann's evidence, when she came to give it, was incriminating of the appellant. But, he submitted, the evidence, apart from Bridget, was not of such unimpeachable quality that this Court should regard the convictions as safe.
52. On behalf of the Crown, Mr Llewellyn-Jones submitted that there was, in the evidence which this Court has heard, no indication that Bridget was incompetent to give evidence. The thrust of all the evidence is that her reliability is impaired as a consequence of organic damage resulting from excessive alcohol consumption. That evidence, submitted Mr Llewellyn-Jones, would have been before the jury, probably called by the defence, and the judge would have had to direct the jury to exercise particular caution in relation to Bridget's evidence because of the medical evidence in relation to her alcohol-related unreliability.
53. But Mr Llewellyn-Jones pointed out that the judge in his summing-up, by reference to Bridget and Susan, had expressly directed the jury, at page 10C, that they might well have a purpose of their own to serve in implicating the appellant. The judge said this:

"Therefore in so far as they or either of them do so, I should tell you that it is dangerous to act on their evidence alone in reaching the conclusion that the case against him was proved."

54. Mr Llewellyn-Jones points out that the judge did not go on to say that it was open to the jury to convict in reliance on the evidence of either of the sisters even if there was no independent evidence. The matter was put to the jury on the basis that they must find independent evidence before they could rely on the sisters' evidence. The judge directed the jury that the evidence of Michael McCann and Jock Walker, to which we have referred, was capable of affording support to the accounts which in evidence before the jury the two sisters had separately given.
55. Mr Llewellyn-Jones drew attention to the significance of the evidence about shortage of money on the appellant's behalf on the Friday evening, compared with the availability of money to him on the Saturday after the killing and on the Sunday.
56. So far as the cause of death is concerned, Mr Llewellyn-Jones submitted that, effectively, sexual activity was ruled out as a possible cause of death. There was the evidence from the appellant's father and from Jock Walker about the threats made. Of particular significance, so far as Jock Walker was concerned, was the accusation of having smothered the deceased made in the presence of the appellant, which immediately preceded the threats about which both those witnesses spoke.
57. Susan's evidence, itself, as is common ground, was, if the jury accepted it, capable, on its own, of leading to the appellant's conviction. So far as Bridget was concerned, the judge, in addition to the passage to which we have already referred in relation to corroboration, at an early stage in his summing-up at page 3D, said:

"It is plain, is it not, that somebody or some people are doing a lot of harm lying."

58. The fact that Bridget was given to taking substantial quantities of alcohol was plainly before the jury at the trial, because the prosecution had presented their case on the basis that the whole McCann family were heavy drinkers. There was an admission that over 100 empty or partly filled beer cans were found at the McCanns' flat. There was the evidence to which we have already referred from the police officer, who had found the family to be the worse for drink when he had visited earlier on the Saturday.
59. We turn to our conclusions in the light of these submissions. In our judgment, the Crown Prosecution Service were plainly wrong to claim in response to the defence enquiry in correspondence between the first and second trials that Bridget McCann's medical records were irrelevant. They were relevant and material and should have been available to the defence. It is unnecessary to consider how this might have been achieved if, as both sides before this Court suggest, they were not then discloseable without Bridget's consent. It is unnecessary because we must judge the safety or otherwise of these convictions by the standards which now apply (see, per Lord Bingham of Cornhill CJ in R v Bentley, Court of Appeal (Criminal Division) 30th July 1998 and per Lord Woolf CJ in R v Johnson, Court of Appeal (Criminal Division) transcript of 24th October 2000).
60. It is common ground that today those records would be discloseable, with or without Bridget's consent. There is also evidence before us from Dr Keen, (as we have said the only to witness to see Bridget in 1988 and 1989) which strongly suggests that she would not have agreed to undergo the neuropsychological testing which Dr Khan and Professor Kopelman say would have been necessary for a firm diagnosis. But the crucial question for the purposes of this appeal is not what the correct medical diagnosis was in relation to Bridget's condition, but what impact the expert medical evidence which we have heard, had it been called at trial, might have had on the conduct of the trial and, in particular, the jury's verdicts.
61. We are not able to accept Mr Blake's submission that, if this evidence had been led before the judge in the absence of the jury, the judge would have ruled that Bridget McCann was incompetent to give evidence at all. None of the doctors suggests this. All agree that the effects of excessive alcohol upon her for many years up to her death in June 1991 were such that, at the time she gave evidence at the committal proceedings and at both trials, her evidence was likely to be unreliable.
62. Nor do we accept that, in the light of the medical evidence, the judge would have excluded Bridget McCann's evidence under section 78 of the Police and Criminal Evidence Act. The point seems to us to be effectively the same as that in relation to incompetence. If the evidence did not establish in confidence, it seems to us that the trial judge would not have excluded her evidence under section 78.
63. In our judgment, and in accordance with Toohey v The Metropolitan Police Commissioner [1965] AC 595, per Lord Pearce at page 608D, the likelihood is that the expert medical evidence would have been led as part of the defence case and it would have been for the jury to take this evidence into account when deciding what, if any, weight to give Bridget McCann's evidence. For that assessment properly to be made, it would have been necessary for the trial judge to give a strong and clear warning to the jury in his summing-up that they should approach her evidence with very great caution. It is important to observe that the summing-up which the jury heard at the trial did not present Bridget McCann as a reliable witness. On the contrary, such a warning in relation to unreliability arising from the effects of alcohol would have been in addition to the other warning with regard to the possibility of unreliability of her evidence. As we have indicated, the trial judge directed the jury that Bridget, like Susan, had or may have a purpose of her own to serve, whereby the jury should not rely on her evidence unless it was independently confirmed.
64. There was also before the jury evidence of a number of convictions of Bridget, demonstrating dishonesty on her part, on a number of occasions in the past. It is also to be noted that, because the defence at trial had access to the interviews which she had given to the police, she was able to be and was cross-examined thoroughly in relation to the inconsistencies in the varying accounts which she had given. It is also plain, for the reasons adumbrated by Mr Llewellyn-Jones, that the jury were well aware that Bridget had a tendency to drink alcohol, and had indeed been treated at a hospital which they inevitably would know, as a local jury, was a psychiatric hospital.
65. Those matters, as it seems to us, are relevant when considering the potential impact on a jury of the medical evidence which we have heard.
66. The further warning which the judge would have had to give as to unreliability consequential upon alcohol abuse would have been, as we have explained, additional to the warning which he already gave in relation to possible unreliability resulting from an interest of her own to serve.
67. In those circumstances, as it seems to us, even if the jury had heard the medical evidence which we have heard and received an additional warnings, it would still have been open them to accept, as they clearly did, the central, consistent, feature of Bridget's evidence in relation to the smothering of the deceased by a pillow held by the appellant.
68. That is the first matter to be addressed when considering whether or not these verdicts are to be regarded as unsafe. The matter does not, however, end there. For we are satisfied that, even if the jury were to conclude, having heard the medical evidence which we have heard and having been directed in the way which we have indicated, that Bridget McCann's evidence was totally worthless, their verdicts would inevitably have been the same. For, as it seems to us, there was abundant and compelling other evidence, quite apart from Bridget, pointing to the appellant's guilt. First, the evidence of Jock Walker, confirmed substantially by the appellant's own father, was that, very soon after the killing, the appellant had been accused by his sisters, to his face, of smothering the deceased, to which accusation his response had not been a denial, but a threat of violence to his accusers, if they were to implicate him.
69. Secondly, there was the evidence of the two barmaids, in relation to the appellant's palm reading activities and lack of money on the Friday evening and the fact that on the Saturday after the killing, he was apparently flush with money. The jury would be entitled to conclude that the appellant's claim that he was palm reading on the Saturday evening was false, and furthermore, that the witness, Mr Price, whom he called in support of his own evidence, did not provide any satisfactory explanation as to the source of the funds which he was distributing on the Saturday and Sunday.
70. Thirdly, there was Susan McCann's evidence which alone, albeit self-serving, as the judge warned the jury, was, if the jury accepted it, sufficient to convict the appellant of manslaughter, notwithstanding that, as Mr Blake points out, the jury clearly did not accept all her evidence, because they would not otherwise have convicted her of robbery.
71. Fourthly, as it seems to us, the jury were entitled to ask why, if the appellant's claim that the cause of death was due to administration of sexual favours, Susan did not advance that claim which would have afforded her a defence to robbery as well as to manslaughter. Furthermore, the absence of semen from the penile swab taken from the deceased contradicted the appellant's claim about sexual activity.
72. The jury was also entitled to consider whether there was any realistic possibility that, without the appellant, one or both of the sisters, (Bridget being disabled in relation to the movement of her limbs) would have had the strength to kill the deceased by suffocation. For, on the evidence, there was no other candidate for causing this death apart from these three. In the light of these matters the jury, as it seems to us, would have been entitled to reject the appellant's account.
73. Fifthly, the pathologist's evidence of the marks on the deceased arm's was consistent with him having been forced back into his flat.
74. Sixthly, the pillow case, which had been seen intact two days before the killing, was found to be torn and bloodstained after the killing in a manner consistent with, albeit not demonstrative of, its use for suffocation.
75. Finally, the jury would have been entitled, as it seems to us, to have regard to the sheer improbability of the appellant's family conspiring to convict him, falsely, in circumstances in which there was a defence of sexual activity, open to all three of them, if the facts bore it out.
76. In the light of all these matters, despite Mr Blake's able submissions, we conclude that there is no reason, in the light of the fresh evidence to which we have referred, for regarding the verdicts of the jury in this case as unsafe. Accordingly, this appeal is dismissed.