Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LORD JUSTICE CLARKE
MR JUSTICE GIBBS
HIS HONOUR JUDGE FABYAN EVANS
(Sitting as a Judge of the CACD)
R E G I N A
-v-
MARK DAVID HAMPSON
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MR J REES QC appeared on behalf of the APPELLANT
MR P HARRINGTON QC appeared on behalf of the CROWN
J U D G M E N T
LORD JUSTICE CLARKE: This is the judgment of the court.
On 4th November 2002 in the Crown Court at Bristol, before Hallett J and a jury, the appellant was convicted of murder and sentenced to life imprisonment. He was represented at the trial, as he has been today, by Mr Rees QC. He appeals against conviction by leave of the full court, Latham LJ, Beatson J and Sir Charles Mantell. The single judge, Crane J, had initially refused leave.
At about midday on 22nd December 1990 the body of Geraldine Palk, the victim, was found lying face down in a stream near the Fairwater Leisure Centre, a short distance from her home in Cardiff. The victim was unclothed and bound. She had been stabbed 81 times and also had severe head injuries. Semen was found in her mouth and her vagina. The victim, who was aged 26, had spent the previous evening with friends in the Cardiff City Centre. In the early hours of 22nd December she had taken a taxi home and had been dropped off at the junction of Waterhall Road and Pentrebane Road, about 300 yards from her home. In spite of a massive murder investigation involving extensive publicity, the murderer remained undetected. However, following advancements in DNA technology, further enquiries established an exact match between the semen taken from the victim and that of the appellant. It was formally admitted that the appellant's sperm was found on the mouth and vaginal swabs taken from the victim.
The Crown case was that the appellant had abducted the victim, sexually assaulted her and then murdered her. The appellant had lied about what had happened and his account was implausible. If his account was true, he would have connected his contact with the victim to her death and provided information to the police during the well-publicised murder investigation. He failed to go to the police because he had murdered the victim and failed to give evidence because he had no defence.
The evidence relied upon by the Crown was various. 1. The evidence of Stephanie Hunt, Nigel Sperry and Lee Mardon who shared the taxi with her on her journey home in the early hours of 22nd December, and also evidence from Edith Hunt regarding the time the victim arrived at Pentrebane Road.
The evidence of Dawn Llewellyn Jones who said that she had spent the evening of 21st December with friends in a restaurant and returned home between 1.00 and 1.10 am. She had stayed in the car so that she could take her babysitter home. Her babysitter had come out a minute later and on the five to six minute journey to Sylvia's home at Frewer Avenue she saw a man and a woman having an argument on the embankment near Bracken Place. She had shouted at the man. The woman fitted the description of the victim. She arrived at Frewer Avenue at 1.25 am. She looked at the clock and sat in the car to chat with Sylvia for a few minutes. She left between 1.45 and 1.50 am and as she returned home she saw the man she thought she had seen on the embankment running from Waterhall Road towards Pwllmelin.
Evidence from various witnesses regarding what they had seen or heard in the area where the victim was murdered. There was a wide variation in the timings of the screams heard by the witnesses.
Evidence from Professor Knight, the consultant forensic pathologist, to this effect. The victim was stabbed in the neck, chest, abdomen, thighs and back. One of the stab wounds had penetrated into the cavity of the heart. Other injuries included a long laceration to the throat, incised wounds to the neck and left wrist and wounds to the hands indicative of defensive injuries. The victim had extensive bruising and scratches. There was no bruising or apparent damage to the external genitalia and no internal damage to the vagina. The victim had been hit on the head at least six times by an irregular object which had pushed the skull in causing severe damage. The witness could not be precise as to the time of death, which was caused by the head injuries and stab wounds. There was no evidence of mutilation to the sex organs and no signs of penetration. In cases of homicidal rape he would expect to find some signs of sexual intercourse but this was not inevitable.
Evidence from Mr Robinson, a forensic scientist, who examined the mouth and vaginal swabs taken from the victim. There was a small number of sperm on the vaginal and vulval swabs and no AP, the chemical usually found in sperm. He had no idea whether there had been full ejaculation in this case. Mr Robinson gave a good deal of other evidence which is not necessary for us to recite for the purposes of the issues in this appeal.
The appellant was arrested on 22nd June 2001, which was of course many years after the murder. He was interviewed on several occasions over the next three days. We will return to those interviews in a moment.
The defence case was denial. The appellant, who did not give evidence, accepted in interview that he had seen the victim on the night of the offence and had had consensual sexual intercourse. The defence case was that the victim was alive when the appellant left her and that she must have been attacked by someone else after they had parted. The defence adduced evidence of the victim's sexual history in order to support the appellant's account of a brief casual sexual encounter with the victim. The defence also drew the jury's attention to various odd events which had happened in the days leading up to the murder, including three silent telephone calls which were made to the victim's home on 19th December 1990. It was submitted that the prosecution evidence regarding the events of the early hours of 22nd December 1990 was consistent with the appellant's case. It was further submitted that scene of crime and forensic evidence was consistent with the appellant's case and did not link him to the killing. The issue for the jury was whether the appellant murdered the victim.
There were originally five grounds of appeal in support of a submission that the conviction was unsafe. They were these:
Significant parts of the prosecution evidence, in particular the evidence of the main prosecution witness, Dawn Llewellyn, and the evidence adduced in relation to the events of the early hours of 22nd December 1990 were inconsistent with the prosecution case against the appellant. Criticisms were made of the summing-up.
The evidence of Professor Knight, the consultant forensic pathologist, was consistent with the appellant's case and did not support the prosecution case.
The forensic and scene of crime evidence was consistent with the appellant's case that he had consensual sexual activity with the victim, but did not link the appellant to the killing.
The evidence of Mr Robinson, the forensic scientist, was consistent with the appellant's case that he had engaged in consensual sexual activity with the victim, in which he attempted to penetrate her vagina and she subsequently performed oral sex upon him until he ejaculated. Again there were criticisms of the judge's summing-up.
The judge failed to direct the jury that the whole of what the appellant said in interview was to be taken into account as evidence.
The application for leave to appeal was, as we have indicated, refused on paper by the single judge. When it was renewed before the full court, the court refused leave on grounds 1 to 4 but granted it on ground 5. Both the single judge and the full court rejected grounds 1 to 4 on the basis that the relevant evidence was fairly put before the jury in the course of the judge's summing-up and that, as the full court put it, the jury cannot have been in any way misled as to the nature of the evidence.
The views of the full court and the single judge were not quite the same on ground 5. The single judge said this:
"... complaint is made that the Learned Judge did not direct the jury that the whole of what the defendant said in interview was to be taken into account and that the jury were left with the impression that what he has said in interview was not evidence on which they could determine the facts. It is true that she did not, but from page 125E to 135A she summarised the interviews, having at 125C referred the jury to the transcripts which they had, defence counsel's detailed references to them and the playing of parts of the tapes. The jury asked to hear played again those parts. The jury can have been left in no doubt that the interviews were part of the evidence before them."
By contrast the full court said this with regard to count 5:
"However, it is undoubtedly correct that the judge failed to direct the jury properly as to the status of the interviews; and bearing in mind the importance of the interviews and what was said by the applicant in those interviews, it seems to us that there is an arguable case for saying that the result is that the jury may have been misled as to the status of the interviews and that the verdict might therefore be, for that reason, unsafe."
The issues between the parties in this appeal can be seen from those different approaches. The judge did not expressly direct the jury that what the appellant said in interview was part of the evidence which they should take into consideration, together with all the other evidence, when considering the truth of what occurred. Mr Rees QC submits that the jury were left with the impression that what the appellant said in interview was not evidence on which they could determine the facts. By contrast, Mr Harrington QC submits on behalf of the Crown that the jury were not left with any such impression.
In order to resolve this issue it is necessary to consider parts of the summing-up in some detail. At the beginning of the summing-up the judge directed the jury in the standard way and she then said this:
"I am also obliged to remind you of the prominent features of the evidence, albeit you have been taken through the evidence in some detail by counsel. It has always been your responsibility to judge the evidence and to decide all the relevant facts of the case."
There followed, as Mr Harrington puts it in his skeleton argument, a flawless recital of perceived judicial opinion and the jury's duty if the judge fails to mention something which they regarded as important.
The judge's first reference to the nature of the evidence is on page 5D where she said this:
"When it comes to the facts of this case it is your judgment alone that counts, and you make that judgment on the evidence. And the evidence is the evidence you have heard from the witness box and the evidence that has been put before you by agreement either by way of admission or by statements being read to you. You have also had other statements read to you, which have been read to you because the witnesses cannot be traced. But that is the evidence, members of the jury; submissions of counsel are meant to help you, but they are not evidence. So you must look and judge upon the evidence.
Just as it is what happens in court which is the evidence, when it comes to assessing what a witness said in a statement years and years ago, that is not in itself evidence that something happened, just because they said it in a statement. If when they come before you and say, 'Yes, well, I am reminded of that. That is what I said at the time, yes, that is what happened', then it becomes evidence. But just because they wrote it in their statement does not make it evidence unless they adopt it in court."
At page 9E the judge said this:
"Members of the jury, the delay factor is something that you must take into account not only when you assess the evidence called before you, but when you assess what this defendant said to the police. Take the delay very much into account when assessing whether you believe he [that is the appellant] was deliberately lying to the police and changing his story as he thought about what the police might have found to link him to the scene, as the prosecution suggest, or whether he was embarrassed or just forgetting the sequence of events because it was so long ago. Bear the delay in mind and think of how difficult it might have been to recall such events."
It is, in our judgment, plain that one of the central focuses of the case was what the appellant had said to the police in the three interviews. The judge returned to that in a slightly different context on page 12 where she said this:
"Members of the jury, what are you supposed to make in law of the fact this defendant has not given evidence? You have been addressed upon it by both prosecution and defence counsel. Well, it is Mr Hampson's right not to give evidence. He is entitled to remain silent and to require the prosecution to make you sure of his guilt. You must not assume he is guilty because he has not given evidence.
However, the fact that he has not given evidence means that he has not given evidence which would undermine, contradict or explain the evidence put before you by the prosecution. So the account that he gave in interview of how well he knows the area, what he was doing in the area, how long he was with Miss Palk, the fact that the sexual activity with Miss Palk was with her consent and instigated by her and that she was alive and well when they parted, all the accounts he gave have not been repeated on oath before you and nor have the things that he said been tested in cross-examination.
So his silence at this trial may, therefore, count against him, and that is because you may draw the conclusion that he has not given evidence because he has no answer to the prosecution case, or none that would bear examination. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it but you may treat it as additional support for the prosecution's case. But you may only draw such a conclusion if you think it is fair and proper conclusion and you are satisfied about two things: firstly, that the prosecution's case is so strong that it clearly calls for an answer from him; and second, that the only sensible explanation for his silence is that he has no answer to the prosecution case, or none that would bear examination."
To our way of thinking, there is no suggestion in that passage that the jury should disregard in any way the account that the appellant gave in interview, as for example in relation to how long he was with Miss Palk, the fact that the sexual activity was with her consent and that she was alive and well when they parted. As we understand it, no complaint is made about that passage in the summing-up as such. The judge was simply observing to the jury, as she was entitled to do, and as was the fact, that the appellant had not gone into the witness box so that, as she put it, the account he gave had not been repeated on oath nor had the things he said been tested in cross-examination. As we have just indicated, it is important to observe that the judge did not suggest to the jury that they should not have regard to the account the appellant gave in interview. On the contrary, as it seems to us she was telling the jury in effect that when they came to consider that account they should bear in mind that he did not repeat it on oath so that it could be tested.
Later in her summing-up, between pages 125 and 134, the judge referred to the substance of the interviews in considerable detail. She introduced the interviews in this way at page 125:
"Members of the jury, the defendant was arrested on 22nd June 2001 and after being cautioned for the murder of Miss Palk he said, 'No'. He was taken to the Fairwater police station and over three days he was interviewed with either one or two legal representatives present. You have the advantages of the transcript of those interviews, you have been taken through them in detail by Mr Rees, on behalf of the defendant, you have heard part of the tapes played; I will not insult your intelligence by going through them in detail, I am merely going to summarise them."
We understand, as we are sure was the case, that Mr Rees had indeed made detailed submissions based upon the interviews in the course of his final speech. After all, it was the defendant's account in the interviews which represented his defence. As the judge observed, the jury had a transcript of the interviews. They no doubt took that transcript with them when they retired to consider their verdict. The judge then gave a detailed summary of the interviews, including the part which included his account of sexual activity with the victim. We shall not set out the whole of the judge's summary here, but in the light of the submissions we have heard we must refer to some of it.
Mr Harrington submits that the judge dealt with the interviews with conspicuous fairness, avoiding adverse comment, and that she did so comprehensively in dealing with all the matters on which the defence had relied. Mr Rees submits by contrast that in the course of the judge's summary of the interviews she pointed out, for example, how he had changed his account from time to time and made other comments which highlighted some of the points which the Crown had made. There is undoubted force in that submission. However, it appears to us that this was an extremely fair and balanced summary of the interviews and indeed it is not submitted by Mr Rees on behalf of the appellant that the judge misrepresented the interviews in any way. This can, we think, be seen in particular in the part of the summing-up between pages 127 and 130 in which the judge summarised the key parts of the interview. Before that the judge had observed that in the interview the appellant had denied involvement in the death of the victim. He said that he found it difficult to remember events so long ago and the judge noted that she had already directed the jury about making allowances for any failure of recollection on his part. That was a reference to the passage which we mentioned earlier at page 9.
The key part of the summing-up begins at the point where the appellant said that he was urinating against a wall. The judge then said this:
"He said that he saw a young lady who he thought he recognised and there was some conversation in which she said words to the effect, 'Who's a big boy then?', and chuckled. He said something about saying to her, 'Don't I know you from somewhere?', and telling her that she looked nice. He said that she was drunk and she leaned on him. He asked her the time to make conversation and she replied, 'I've got the time if you've got the energy.' He then added that he put his arm around her waist and they kissed and caressed. He was reluctant to provide further detail of what happened and his solicitor suggested on his behalf that he was embarrassed.
He said that he provided cigarettes for the two of them and asked her if they could go back to her place, and she said 'No'. But then she said she would show him and she grabbed his hand and walked him across the road. They went up a bank between some brambles, he said, and they stood under some trees. He thought there were two to three trees just over the rise of the bank, it took less than a minute to get there from where he had first spoken to her. He had his back to the trees and was looking on to open space. He said, 'She took her jacket off and put it down but no other clothing was actually removed from her.' This is his first account.
He said he lifted her top and fondled her breasts, things got heated and then, without being asked, she undid his trousers and went down and performed oral sex upon him. She squeezed his testicles. She had told him not to come in her mouth, but he ejaculated. He said that she then bit his penis, nipped the edge of his foreskin, called him a bastard and stood up, covered her breasts and stormed off in the opposite direction ... that she stormed off in the general direction of the field. He shouted that he wanted to see her again and she told him to 'fuck off'. He said that he then walked back the way he had come, turning to his left and walking through the bushes, and that was the last he saw of her. He said that he thought that she had picked up her jacket before she had left, and he had been with her for less than half an hour.
Later in the interview he added that during the time they were together he had put his hands down her backside, manipulated her, as he called it, from behind, putting a finger between her legs and manipulating the entrance to her vagina. He said this was before the oral sex took place and before ejaculation, when they were just kissing. He said that both he and she had had a few drinks and it might, therefore, affect his recollection of events.
He was asked in terms whether any other form of sex had taken place and he said, 'No, that was it'. He denied any sexual contact between his penis and her vagina. He said that it was just oral sex. He denied penetrative sex.
He said as far as the injury to his penis was concerned, it was quite painful, but he had received no treatment for it. He denied lashing out as a result of her biting him. He said there had been blood and semen on his boxer shorts. He said in all he was with her, as I have indicated, for less than half an hour. She had dark hair, he said, frizzy hair, and she was quite a fit girl. His hair, he said, was not as thinning as it now is.
His clothes he said he was wearing on that night, December 1990, were a burgundy blue top, which he still had, blue denim jeans and either Doc Martens or Rebok trainers. He could not remember what Miss Palk was wearing on her feet, although he described her walking on to the rough ground.
He was asked about carrying weapons and said that he sometimes carried two Delphin knives on his belt for work, or when he went rabbiting, and he sometimes carried a lock knife. He said he did not carry ordinary knives around with him at the time of Miss Palk's death, and he said that he never told anyone about what had happened to him, that Miss Palk had just approached him in the street and given him oral sex. He said that he had not told anyone because he thought it was a private matter.
On 23rd June, towards the end of the first interview, the defendant's representatives were told that semen matching the defendant was found in Miss Palk's mouth. After the second interview, between 11.04 and 11.25, they were told that DNA from semen found in Miss Palk's mouth and vagina matched the defendant. But before he knew that the police could actually match his DNA to semen found in the vagina he had already changed his account.
He said that he had been thinking about matters overnight, he had found it difficult in remembering and he was embarrassed about what had happened. He said that Miss Palk had led him across the road without any conversation. They had been kissing, he had bent down and slid her trousers down to her knees, kissed her legs and pubic area, and he then worked his way back up. He said that she then undid his jeans and he attempted to penetrate her vagina with the two of them standing up. He said that he did not have a full erection and so it was not possible. He claimed that she then said, 'That's all right, I'll sort that out now', she bent down, massaged his testicles and said, 'Don't come in my mouth', and gave him a blow job. He said that he had then come in her mouth and she had nipped the end of his foreskin. He thought that she might have spat when either she was down or when she was standing up, presumably to get rid of the semen. Again, he told the police that she called him a bastard, and said that she went off to his right and he walked back the way he had come. Unfortunately, nobody asked him why it was he had forgotten about this attempt at intercourse when first asked about it.
He said that after the biting of the penis, although Miss Palk was unhappy he then added that in fact she had not just stormed off, there had been some further kissing. This is after he had ejaculated in her mouth. He said there was some further kissing and manipulation of her breasts and vagina. But she then said that it was cold and she had had enough and she walked off. He still maintained that he did not penetrate her vagina, but that his penis went up against her crotch. At no time did he hear any screaming or did he himself scream. He said that he did at one stage shout out that he wanted to see her again.
He was asked about the swab labelled as coming from the high vagina and he said that he could not explain how his semen could have got there.
He confirmed that he did carry a lock knife on occasions which could have a blade about four inches long. When he left the scene, he said that he did not hear anything apart from a dog barking, and he did not see anyone."
It is not necessary for us to quote any more of the judge's summing-up, save to note that at the end of her summary the judge said that the appellant had denied throughout the interviews attacking, raping or killing Miss Palk.
In our judgment, it is plain from the passage we have quoted that the judge set out fairly and fully the appellant's account of what happened as between him and the victim. The summary ended at page 134 and it was only shortly after that that the judge concluded her summing-up. She did so in these terms:
"Members of the jury, that completes my review of the evidence. Remember, when you assess that evidence, when you form your judgment, as you have been reminded, it is not for Mr Hampson to prove his innocence, it is for the prosecution to prove so that you are sure that he was Miss Palk's killer."
Mr Harrington submits that in reminding the jury of the appellant's account in such detail the judge was doing what she said she would in the first passage of the summing-up which we have quoted, namely reminding them of the prominent features of the evidence. He further notes that it is not suggested that the judge's summary was unfair or inadequate in any way. Moreover, it may be noted that it was only very shortly after she had reviewed the interviews in some detail that she said that that completed her review of the evidence. Mr Rees submits however on behalf of the appellant that the judge failed to direct the jury that the whole of what the appellant said in interview was to be taken into account as evidence in deciding where the truth lay. He submits that she should have done so and that it was not sufficient simply to remind the jury what the appellant had said in interview without directing the jury as to its status -- the more so since the appellant had not given evidence on oath.
He relies upon a number of authorities, namely R v Duncan 73 Cr.App.R 359; R v Sharp 86 Cr.App.R 274; R v Aziz [1996] AC 41; and R v Ashton (unreported) June 18th, 1999. Mr Rees further submits, as we have already indicated, that the jury were left with the clear impression that what the appellant said in interview was not evidence on which they could determine where the truth lay or the facts.
The cases on which Mr Rees relies, with the possible exception of Ashton, did not raise quite the point which he makes here. In those cases this court and the House of Lords were considering the case of an interview or statement made by a defendant which was partly incriminating and partly exculpatory. They are authority for the proposition that in such a case the whole interview or statement should be put before the jury by the Crown and not just the incriminating part.
The issue in Duncan can be seen from these two paragraphs in the judgment of Lord Lane CJ giving the judgment of the court at pages 363 to 364:
"The issue between the parties here is the extent to which confessions are properly to be regarded as evidence of the truth of the facts which they state. Both parties are agreed that if a statement is adduced as an admission against interest, the whole of the statement must be admitted. Any other course would obviously be unfair.
It is contended on behalf of the Crown that this rule does not, however, make the contents of the statement evidence of the facts contained therein except in so far as those statements are admissions against interest. Mr Judge, on the other hand, on behalf of the appellant, contends that the whole statement is evidence of the truth of the facts contained therein. He, however, concedes that the judge is entitled to explain to the jury, if indeed it needs explanation, that the weight to be given to those parts of the statement which contain admissions against interest may be very different from the weight to be given to the parts which are self-exculpatory."
The court's conclusion was stated by Lord Lane at page 365 in these terms:
"Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence."
The decision in Duncan was approved by the House of Lords in Sharp, when the paragraph just quoted was expressly approved.
In Aziz the Crown tried to persuade the House of Lords to depart from its decision in Sharp. The House declined to do so, again approving the principle stated in Duncan. Lord Steyn, with whom the other members of the House agreed, put the point thus at paragraph 50A:
"It follows that the principle as enunciated in Sharp is that both the inculpatory and exculpatory parts of a mixed statement are admissible as evidence of their truth. So far as the exculpatory parts of a mixed statement are concerned an exception to the hearsay rule is involved. It is necessary to explain the scope of the exception. Duncan was concerned with mixed statements made to the police. But Sharp made clear that the principle cannot be so confined. It applies to all mixed statements tendered by the Crown. Contrary to the submission of counsel for the Crown, Sharp does not warrant the introduction by a defendant of a mixed statement as part of his case: Blackstone's Criminal Practice 5th ed. (1995) pp 2114-2115."
In Ashton, where the court comprised Henry LJ, Holland and Hallett JJ, who was of course the trial judge in the instant case, the judge had directed the jury that the contents of the relevant interviews were evidence given to the police and a little later that they were "evidence in the case - evidence of what he said then". The complaint about the summing-up can be seen by reference to this sentence in the summing-up:
"He answered questions in interview and he now seeks to rely on those answers, which of course are evidence in the case, in the sense they are evidence of what he said at the time [emphasis added]."
In the course of giving the judgment of the court, Henry LJ said this:
"Mr Spencer QC focuses on the underlined words, and submits that they constitute a misdirection - the underlined words are incorrect because his answers to the questions in interview are more than just evidence of what he said then, they are evidence of the truth of what he said then. This is a point that would or might be clear to a graduate lawyer, but would not, I surmise, appear to be of any significance to a juror listening to an oral summing-up. This is the point that is emphasised by Miss Macur QC for the Crown. She makes the point that it was implicit in everything that the judge said to the jury that he was inviting them to give the correct evidential weight (that is to say the mixed statement was evidence of the truth of what was said) to everything said in the statement. In the judge's full analysis of the statement he identified all parts relevant to self-defence and to provocation. So he treated the whole contents of that statement on the proper basis. He made it quite, quite clear that the jury should have regard to all of the statement. If he fell into error in not examining critically the implications of those words in the Specimen Direction, he did so in good company, as that Direction has been used many times since it was issued in February 1997, and no-one seems to have noticed it over that period. We will be referring it to the JSB for reconsideration."
The court held that there had been what they called a technical misdirection, but they regarded the case as an overwhelming case and dismissed the appeal.
In the instant case the Crown relied upon some of the appellant's answers in the interviews. The whole of each interview was put before the jury and, as we see it, it was put before the jury as part of the evidence in the case in accordance with the decisions in Duncan, Sharp and Aziz. In these circumstances, the defence naturally relied upon the parts of the interviews favourable to the defence case. Indeed, the interviews were the defence case. If, as Mr Rees submits, the jury had been left with the clear impression that what the appellant said in interview was not evidence on which they could determine where the truth lay, that would indeed have been a serious misdirection in the light of the principles in Duncan, Sharp, Aziz and, indeed, Ashton. Mr Rees' submission focuses on the earlier part of the summing-up. He focuses on the passage in the summing-up in which the judge said that just because a person writes something in a statement does not make it evidence unless he or she adopts it in court; and second, the fact that the judge did not expressly say that the judge should treat the contents of the interviews as part of the evidence of truth.
It is correct that the judge did not follow the standard form of direction as recommended by the Judicial Studies Board. There are two parts of those standard directions to which we should briefly refer. Direction No 55 is concerned with a Defendant's Statement Partly Self-Serving: Defendant not giving Evidence" and reads:
"The defendant's statement to the police contains both incriminating parts and [excuses] [explanations]. You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are likely to be true - for why else would he have made them? You may feel that there is less weight to be attached to his [excuses] [explanations]. They were not made on oath, have not been repeated on oath and have not been tested in cross-examination."
We note in passing that, although the judge did not expressly state that the whole of the statement or interviews must be considered in deciding where the truth lies, nor did she draw the distinction between the incriminating parts and the exculpatory parts.
We should also refer to Direction 39, which relates to a "Defendant's Total or Partial Silence at Trial" in connection with section 35 of the Criminal Justice and Public Order Act 1994, which includes the following, some of which is to be found in the judge's summing-up:
"The defendant has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. You must not assume he is guilty just because he has not given evidence because failure to give evidence cannot, on its own, prove guilt. However, as he has been told, depending on the circumstances, you may take into account his failure to give evidence when deciding on your verdict.
In the first place when considering the evidence as it now is, you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution.
[The defendant did answer questions in interview, and he now seeks to rely on those answers, which are of course evidence in the case - evidence of what he said then. It is a matter for you to decide what weight you should give to them, but you are entitled to bear in mind that those answers were not given here before you, they were not given on oath and the prosecution has had no opportunity to test them before you in cross-examination]."
It appears to us that in these circumstances the judge should have included in her summing-up an express statement that the jury should consider the whole of the content of the interviews as part of the evidence in deciding where the true lies. Moreover, it appears to us that she should have stated that expressly. However, we accept Mr Harrington's submission that the judge made it clear to the jury throughout that they should take account of the contents of the interviews which they had in their possession. A great deal of the debate in the course of the trial centred on the appellant's explanation of what happened in those interviews. The only possible purpose of giving the direction at page 125 which we have quoted, and summarising the interviews in detail, was so that the jury would have everything that the appellant had said in interview in mind in deciding where the truth lay. They had to decide where the truth lay in order to decide whether or not they were sure of his guilt.
In our judgment they can have been in no doubt whatever that they should regard what the defendant had said as part of the evidence in the case. Moreover, they can have been in no doubt that they should have regard to what he said in deciding where the truth lay. They not only had the transcripts, but they had heard some of the tapes of the interviews. Further, after they retired they specifically asked to listen to the passages which they had previously heard played to be played again. Arrangements were then made for them to do so. It thus appears, entirely unsurprisingly, that the jury were particularly interested in the appellant's account in the tapes. In our view it is inconceivable that the jury did not treat these tapes as part of the evidence. They were treated quite differently from the witness's statements.
They were given a direction on page 12, which we quoted earlier, that the appellant's accounts in interview were not repeated on oath so that he was not cross-examined upon about it, but we do not think that the jury can possibly have thought that they were not part of the evidence in the case. As we indicated earlier, in one respect the direction was not unfavourable to the appellant because the judge did not say that they might think that any parts of the interviews which did not amount to admissions were of less value than those which were or amounted to admissions. We should perhaps note that it was not suggested to the judge at the end of her summing-up when she asked counsel whether there were any matters that either of them would like to raise that the jury had been left with the impression, whether or not a clear impression, that they should not treat the interviews as part of the evidence. We do not criticise counsel in any way for that and we well understand that counsel had many other things to think about. But we feel sure that if it had struck counsel at the time that the jury had indeed been left with such a clear impression, they would have said so.
As we see it, the true position is that this case was all about the defendant's account in interview and whether it might be true. Indeed, the defendant's account formed much of the basis of the argument on many of the other points which formed part of the case. Mr Rees has identified a number of areas of the case where he said that the defence case was strong. Those were the areas which formed the basis of grounds 1 to 4 of the original perfected grounds of appeal. The full court and indeed the single judge have already expressed the view that the evidence on those points were fully summed up to the jury. We do not say that this was an overwhelming case but the question for us is whether the verdict is safe, notwithstanding the fact that the judge did not expressly tell the jury that they should treat all of the interviews as part of the evidence in the case when deciding where the truth lay.
We have reached the conclusion that that failure could not possibly make this conviction unsafe. The jury were fully and fairly directed. If the judge had expressly told the jury that they should treat the interviews as part of the evidence when deciding where the truth lay, it could not possibly in our judgment have made any difference to the jury's approach to the interviews or to the verdict. Whether the appellant murdered Miss Palk was a matter for the jury. It is not, in these circumstances, necessary or desirable for us to consider the other detailed points which initially formed the basis of grounds 1 to 4. In our judgment the conviction was safe. It follows that the appeal must be dismissed.