Rose, R. v

LORD JUSTICE TUCKEY: On 17th February 2005 after a six week trial in the Crown Court at Exeter, before His Honour Judge Cottle and a jury, the appellant, Nicholas Tom Rose, was convicted of murder and sentenced to life imprisonment with a recommendation that he serve a minimum of 20 years. The jury convicted him by a majority of 11 to 1 after deliberating for about 25 hours. He appeals against conviction by leave of the single judge. Two of the judge's rulings on the admissibility of evidence are challenged, as is one aspect of his summing-up. The appellant also relies on additional evidence.

On Friday 27th February 2004, Charlotte Pinkney, aged 16, was at a party in Ilfracombe. She left shortly before 4.30am the following morning in a car driven by the appellant. There was another man with them but when he got out of the car the appellant drove off with Charlotte. None of her family or close friends have heard from or seen her since. On 4th March her family informed the police that she was missing and a search started. The prosecution maintained that although her body was not found the evidence led to the sure conclusion that she was dead and that the appellant had killed her. Its case was that he drove her away from the party with the intention of a sexual encounter and when this went wrong he killed her. She was dead by 6.30am. It was conceded that if she was or might have been alive after that, the appellant was not guilty.

The appellant's case was that he dropped Charlotte by a nearby community centre and had no knowledge of where she went or what she did after that. His own actions thereafter were the result of his belief that there were police in the area from whom he needed to escape as he was a disqualified driver. The defence maintained that there was evidence that Charlotte was alive at least until the afternoon of 2nd March.

The Crown called evidence that Charlotte was a popular, confident and mature girl with a wide circle of friends in Ilfracombe. Her social life involved much partying, drinking and drug taking, as was the norm amongst her friends, and she had had a number of boyfriends, including Gus O'Brien, who was in his forties and with whom she recently had a stormy relationship. Although there was concern about these aspects of her lifestyle, she was very much involved in family life. She had some close friends and loved Ilfracombe, seeming never to want to leave. She was looking forward to celebrating her 17th birthday on 6th March and her sister's birthday, which was a few days before hers, and to various other events. The evidence of her parents, friends and relatives was that it was inconceivable that if she were alive she would not have made contact with one of them.

On the evening of 27th February, Charlotte went out with her friends. She was wearing trousers, a black thong, a top, a jacket and brown boots and was carrying a distinctive Lonsdale handbag. After the clubs closed, she and a friend went to the party to which we have referred. The friend fell asleep and did not see Charlotte again. The appellant was at this party. She left the party with him in a red Vauxhall Cavalier which the appellant had borrowed from his friend, Helena MacKenzie. The other man in the car, Dean Copp, described how he had been left in the road after being asked to knock on the door of the house of one of their friends. As he was doing so, he said he saw Charlotte sitting on the appellant's lap in the driver's seat of the car. They were kissing.

He next saw the appellant at about midday when he came to Helena MacKenzie's house. He and Helena described how the appellant was covered in fine scratches and had three deeper different scratches on the side of his neck. The appellant said that he had left Dean when he had seen torch lights which he thought were the police and had driven off to the Slade reservoirs on the outskirts of Ilfracombe to hide. The car had got stuck in the mud and he had been scratched by brambles running away from the police. He had earlier told someone working at his house that he had hidden in bushes whilst two policemen with lights and dogs looked for him.

Later the appellant managed to retrieve the car but before he did so it had been seen by various witnesses up at the reservoir. It was stuck in a tunnel passing under a disused railway line. One man had seen the appellant holding some sort of rolled up material which he had thrown into the back of the car. Other witnesses who were out riding saw a Lonsdale bag on the verge of the track leading to the tunnel between about 11.15 and 12.15 that morning. This was the bag Charlotte had been carrying the previous evening. Another witness saw the appellant at about 12.30 kneeling on the back seat of the car, apparently brushing it.

The following day (the Sunday) the appellant and his girlfriend, Kimberley Kelly, took the car to a car wash. He then hoovered it out at Helena's house with her hoover. After this they went on a drive to a nearby area of coastal countryside known as Lee Bay. The defence said that Kimberley Kelly's evidence about what happened on this drive was irrelevant, but the judge ruled that it was admissible. That is the first of the judge's admissibility rulings which is challenged on this appeal.

Kimberley's evidence was that they first stopped in a car park near a hotel where the appellant climbed a bank. When she asked him what he was doing he said "Nothing". They then went up a hill where he stopped twice, got out of the car and looked around. He told her something about a stash of drugs but she said he was looking, not searching.

The next day the appellant again borrowed Helena's car. He was away for about five hours in the evening, saying he was going to collect some tools. When he returned at about 10.30pm he was smartly dressed in a change of clothes and smelt of aftershave, although he seemed rather stressed and said he had lost his phone.

Earlier that day the Crown alleged that he was seen by Mrs Geraldine Woodward walking from Ilfracombe towards the reservoirs not far from the track to which we have referred. Mrs Woodward's evidence was that the appellant was carrying a large carrier bag which looked heavy. The defence objected to the admissibility of her evidence for reasons we will explain when we deal with this, the second challenge to the judge's admissibility rulings.

The appellant was arrested on 7th March. He was examined by a police surgeon and photographs of the injuries found were before the jury. Two of these showed bruises on his upper arms which were consistent with grip marks and could have been inflicted in the early hours of 28th February. Injuries shown in two other photographs could have been caused by fingernail scratches. All the other injuries were consistent with moving through bushes or were more recent than 28th February.

The Crown called evidence that no police officers were in the relevant areas at the relevant times on 28th February with or without torches, dogs or vehicles.

There was important uncontradicted scientific evidence. Charlotte's DNA profile was obtained and compared to bloodstains which were found in various places. It matched a contact bloodstain on the tongue of the appellant's right trainer, although the appellant said he had wiped his trainers clean twice.

Charlotte's DNA also matched an area of contact bloodstaining which could have been a smear on the roof lining of the Vauxhall Cavalier, two small areas of light watery bloodstaining on the carpet in the boot of that car and contact bloodstaining in several areas on some jump leads which were in the boot. A child's red hoodie had been found in the car. It had contact bloodstains on its front and back. A DNA profile matching that of the appellant was obtained from one section and a mixed profile made up of the appellant's and Charlotte's DNA was obtained from another.

A piece of black elasticated material found under the front passenger seat was of the type and construction used in the manufacture of knickers, including thong-type knickers. A sample pair of trousers identical to those worn by Charlotte on the evening in question was exhibited. A button with some thread attached was recovered from the hoover taken from Helena MacKenzie's house which she said she had never used on the car. It was similar in size and appearance to a button on the inside of the sample pair of trousers. The thread in the button from the hoover bag matched that from the button in the exhibited trousers.

On about 14th March a brown boot was seen on some waste ground about 85 paces from the appellant's home. It was subsequently recovered and found to be identical to those worn by Charlotte on the night in question. Tests on some hairs in the boot revealed moderate support for the conclusion that it was hers, but this was not disputed at trial.

The appellant gave evidence. He had a number of previous convictions but had always pleaded guilty. He had never had a full driving licence and was disqualified for a breathalyser offence in January 2004. He would have been known, he said, to every police officer in Ilfracombe. He drove Helena MacKenzie's red Vauxhall, usually to run errands for her. He knew Charlotte as he knew many people in Ilfracombe but did not want a relationship with her. He went to the party and as he was leaving Dean Copp, and then Charlotte, asked to come with him. When Dean left the car, Charlotte asked if she could have a driving lesson and moved her right leg across the gear stick towards him. He said "No". She did not sit on his lap and there had been no kissing. As he turned the car around he became aware of lights coming through the bushes and along the pathway hitting the wall. He thought it was the police and as he was a disqualified driver and had been drinking he decided to get away from the scene as fast as he could. He asked Charlotte to get out at the community centre. She did not say what she was going to do but he thought she might go back to the party. He was going to drive a round about way back to his own house but the car started to judder as if it was running out of petrol. He had to decide where to put it as it had no tax or MOT and decided to go to the reservoir. He drove into the tunnel, got out and clambered up the bank. He went along the cycle track on the site of the disused railway and then climbed onto a hut to get away from dogs and to have a vantage point. Subsequently he spent one to two hours trying to get the car out of where it was stuck but was unsuccessful. He walked home and then went to Helena's house where he told Dean that he had seen police or lights and wanted to get away. After about 10 minutes at Helena's house he went back home and changed. He then took a shovel wrapped in a carrier bag and walked back to the tunnel. It was the shovel in the bag which the witness had seen, not rolled up material. He eventually managed to reverse the car out and put the shovel into the boot of the car by kneeling on the back seat. That is what the witness must have seen him doing when he was on the back seat.

On the following day he took the car to get it washed. He went for a drive with Kimberley because she wanted to talk. At Lee he climbed the bank to look for some new tennis courts that someone had mentioned. The next time he stopped to look for a drugs stash about which he had overheard talk and the last time was to have a pee.

On the Monday he was with Kimberley. It was not he whom Mrs Woodward had seen walking towards the reservoir. She had not seen him for four or five years. She had thought that the man was wearing a cream baseball cap and he did not own such a cap. Baseball caps were recovered from his home by the police but not a cream one. At the time she said she saw him he was with Kimberley and later that day he had made an unsuccessful effort to find his tools. He had gone home, had some food, relaxed, showered and changed and then gone to Helena's at 10.30 and asked her if she would like to go to Swindon for a night out, but she was not interested. He had played football the next Sunday and when he received the injuries which were apparent when he was examined following his arrest.

The appellant said he did not know how blood matching Charlotte's DNA came to be where it was found; it had nothing to do with him. He agreed that the area of roof lining in the photograph was above where he had been seen kneeling on the back seat. He knew nothing about the Lonsdale bag.

It was suggested on the appellant's behalf that Gus O'Brien, with whom Charlotte had recently had a row and who was a local drug dealer, was in some way involved in her death or disappearance.

But the most important part of the appellant's defence was the evidence which suggested that Charlotte was alive after 6.30am on Saturday 28th February. A 13-year-old boy, Lewis Russell, who knew Charlotte, said he had passed her as she was walking into Ilfracombe at about 12.30 pm on 21st or 28th February. He knew it was a Saturday but he could not be sure which, but he did remember that he had been wearing tracksuit bottoms which he had been given for his birthday on the 26th.

Mr Holford is the landlord of the Victoria Inn in Ilfracombe. He said that on the 28th Charlotte came into his pub with Gus O'Brien and three others between 12.30pm and 1.30pm and stayed there drinking for about two to two-and-a-half hours. Mr Townsend, a regular in this pub, said that this group had come in at about 3pm. He had discussed the date with the landlord and it was the 28th because that was his daughter's birthday: he had to collect her in his car later that day and had, for that reason and unusually for him, only been drinking orange juice that afternoon.

Mr Holford and Mr Townsend said that they had only seen this group in the Victoria on one occasion. That, said the Crown, was the previous Saturday, the 21st. What these two witnesses were describing had happened a week earlier and so they were mistaken about the date. The Crown called evidence with a view to establishing this contention. Three of his group and Gus himself gave evidence that they, together with Charlotte, had gone to the Victoria on the 21st after watching Arsenal play Chelsea on the television in another nearby pub. This match undoubtedly took place on 21st February, kicking off at 12.30pm. The landlord of the other pub confirmed the presence of the group in his pub at this time and on that date and said that they had left at about 2.45pm. Gus and the three members of his group said that they were not with Charlotte in the Victoria the following Saturday. They gave some further evidence about what had happened on the 21st. They had all been together to an all-night party, the effects of which had made them much the worse for wear and had then gone together to the Victoria. In the Victoria, Charlotte had been sitting on Gus's knee. She was crying and upset and walked out from time to time.

Two further pieces of evidence were relied upon by the defence to cast doubt on the prosecution case that Charlotte was dead by first light on the Saturday. First, Martin Watts who said that as he was driving towards the centre of Ilfracombe at about 8pm on the 28th he saw Gus, whom he knew, walking along the pavement with a female whom he did not know but from a photograph he was shown he was 99 per cent sure it was Charlotte. Mr Watts was sure of the date because it was on a day when he had to complete some building work. Gus accepted that he was in Ilfracombe that day but denied that he was with Charlotte.

Finally, Charlene Bettis, who knew Charlotte from school, said that at about 4.20pm on 2nd March (that is to say the Tuesday) she saw Charlotte sitting in the passenger seat of a car opposite where she worked. She said Dean Phillips was in the driver's seat. Although his evidence was at times vague in its detail, he consistently maintained that he had not seen Charlotte since the party.

So that is a summary of the evidence which was before the jury. It is convenient first to deal with the challenges to the judge's rulings on admissibility to which we have referred. First, the evidence about the trip to Lee Bay. The defence objected to this evidence on the grounds that it was irrelevant. There was no other evidence connecting relevant events to this area, despite the fact that it had been comprehensively searched by the police. The evidence was not probative and merely encouraged the jury to speculate. It was also prejudicial because it involved an admission that the appellant was trying to steal someone else's drugs.

The Crown accepted that they could not say exactly what the appellant was up to, but this evidence, they said, showed an interest in isolated locations and could be linked to the killing and concealment of Charlotte's body 36 hours earlier or the disposal of incriminating evidence.

In his ruling the judge described Kimberley Kelly's account of the appellant's behaviour as very unusual and said:

Mr Mott submits that the judge should have accepted his submissions and excluded this evidence either because it was irrelevant or under section 78.

We do not agree. We think the jury were entitled to consider all the appellant's movements in the hours and days following the time at which the Crown alleged Charlotte had been killed. As the judge said, the appellant's behaviour on the trip to Lee Bay was unusual. What was he looking for? Kimberley's evidence did not suggest that it was drugs. Moreover this trip, and other drives which the appellant took, cast doubt on his explanation for driving to the reservoirs after leaving the party. If he was so frightened of being stopped by the police then, why was he driving so openly on the following days?

The grounds of appeal contend that in fact the Lee Bay area was a pretty unpromising place for disposing of bodies or incriminating evidence. But this was a matter for the jury, to whom this point was no doubt made, who were taken on a view of the area and the other places which featured in the evidence.

We turn to the evidence of Mrs Woodward that she saw the appellant walking towards the reservoirs carrying a large bag at about 2.30pm on the Monday. She knew the appellant because of his relationship with her neighbour, Tanisan Nicklin, although she had not seen him for four or five years. She had given the police the name "Rose" but during the video identification procedure she was unable to make a positive identification. She said: "I think it was No 6." No 6 was the appellant.

The defence again submitted that this evidence was not relevant and simply encouraged the jury to speculate in the absence of any evidence to support the fact that the appellant had anything to dispose of or conceal at the time Mrs Woodward says she saw him. Furthermore, the evidence of identification was of poor quality. It was not supported by any other evidence and was inconsistent with Kimberley's evidence that the appellant was with her at this time, as he agreed.

The prosecution accepted that this was a case of qualified identification but relied on the case of George [2002] EWCA Crim. 1923 to support their contention that it was admissible. In that case the court said that one of the reasons why such evidence could be admitted was if it supported or at least was consistent with other evidence which indicated that the defendant committed the crime with which he was charged, subject to any section 78 considerations (see paragraphs 35 and 36).

In his ruling the judge said:

Mr Mott submits that the judge should have excluded this evidence and repeats the submissions he made before the judge.

We do not accept these submissions. The evidence was plainly relevant because it showed the appellant returning to the area which he had driven the Vauxhall Cavalier after the party and where he had been seen later that day. This evidence did support the Crown's case and so was admissible on the ground identified in George, although we think it would probably have been admissible on ordinary principles without reference to that case. The fact that Kimberley's evidence was in the event inconsistent with Mrs Woodward's evidence was not fatal to its admissibility. It is well established that the Crown are not obliged to rely on every part of the evidence of witnesses whom they call. Mr Mott rightly accepted that in his summing-up the judge gave a proper Turnbull direction when reminding the jury of Mrs Woodward's evidence.

We add that in relation to both grounds of appeal that in so far as the judge was exercising a discretion under section 78 there is no legal basis for challenging the decisions which he made.

The third ground of appeal relates to comments made by the judge in the first part of his summing-up. In the course of his directions on the law, the judge put the issue for the jury fairly and squarely as follows:

First, Mr Mott complains about what he describes as the judge's "comment" about Lewis Russell's evidence. This evidence had been at the forefront of the defence case and Mr Mott submits that what the judge said was destructive of it. He had argued that if the group had all been together on the 21st the boy could not have seen Charlotte on her own at 12.30pm that day. He must therefore have seen her on the 28th. If the judge was going to comment at all at this stage of his summing-up he should have reminded the jury of this point at the same time.

But this point cut both ways. Equally it seems to us that if the group had all been together on the 28th, the boy could not have seen Charlotte on her own on that day either. In the passage in which this comment appears, the judge was reminding the jury of the different issues which arose on the defence evidence of sightings in preparation for giving them a direction about evidence of identification called by the defence. The comment, if that is what it was, was factually accurate, as the judge's summary of the boy's evidence at page 59 of the summing-up makes clear. For these reasons we do not think the judge can be criticised for what he said.

Mr Mott also criticises the last sentence of the passage we have quoted. This, he says, was an improper comment on a central issue in the case. It took no account of the unconventional lifestyles of Charlotte and her friends to which we have referred. She might have gone to ground over the weekend. There would have been nothing unusual about that, as the fact that she was not reported missing for five days demonstrates. The comment, Mr Mott says, was followed by a warning to the jury to consider how reliable witnesses had been as to times, days and dates, and a summary of the evidence about how home-loving and gregarious Charlotte was. In this context, Mr Mott submits, the comment should never have been made.

Mr Mott relied on the recent case of Bryant [2005] EWCA Crim. 2075 in support of the well-known principle that the judge's summing-up must be neutral and must reflect the case which has been presented to the jury as a balanced whole. It is wholly impermissible for the judge to give the impression that he favours one side rather than another (see paragraph 29).

Shortly before he made the comment in question, the judge had given the jury the conventional direction:

The appellant himself has put before the court a number of points which his counsel did not think raised arguable grounds of appeal. They centre around the assertion that Gus O'Brien was in some way involved in Charlotte's death or disappearance. He had lied when he denied being a drug dealer. He had refused to give his DNA. His flatmate and "main man", who was a fisherman, and another friend who owned a boat, had not been called.

We have considered these and the other points which the appellant has raised but like his counsel do not think they raise arguable grounds of appeal.

That therefore brings us to the additional evidence which we heard without prejudice to our decision as to whether or not we should receive it under section 23 of the Criminal Appeal Act 1968. Put shortly this evidence comes from two more witnesses who say they saw Charlotte with Gus and others in the Victoria on the afternoon of Saturday 28th February.

The first of these witnesses is Mr Nicholas Perrin. He is a postman in Ilfracombe. Mr Perrin said that he had come forward after being asked by the appellant's grandmother whether he had seen Gus in the Victoria on the 28th and after discussion with Mr Holford and Mr Townsend who, as we know, were saying that they had seen Charlotte in the Victoria on that day. Mr Perrin said that he had also seen her then and made a statement to the appellant's solicitors on 3rd April 2005. In this statement he said that he remembered the date because he had worked overtime that morning which he did not normally do. In this statement he said that he had worked on the 28th from 3.45am to 11.00am, gone home and then been taken to the Victoria, where he recalled looking at the clock when he arrived and noting that it was around 2.00pm. He then gave an account which he repeated to us of having seen Gus, whom he knew, with two other males and a girl who was crying and sitting on Gus's knee. She kept walking out and returning to Gus's knee. The whole group looked wrecked, as if they had had a very heavy night.

Mr Perrin's first statement was supported by a statement from Mr Redmore, a post office delivery office manager, who said that Mr Perrin had worked overtime on the 28th but not on Saturday 21st February.

It transpired that both Mr Perrin and Mr Redmore were wrong about this. Mr Perrin had worked on the 21st. We now have the post office records which show that on the 21st he worked the shift between 4.45am and 10.45am: the late shift or, as he described it, "bribe duty". On the 28th February he had worked the early shift: 03.45 to 12.45pm. The taxi records show that he was collected from his home for the five or 10 minute ride to the Victoria at 1.17pm on the 21st and 2.20pm on the 28th.

Mr Perrin accepts that he made a mistake in his first statement but maintains that his sighting was on 28th February. His reason for saying this now is that he remembers that it was on the day he worked the early shift and because, as he has always maintained, it was the day when Mr Townsend was drinking orange juice.

Mr Perrin was obviously an honest witness doing his best to remember when he had seen this group in the Victoria. We think it would be right to receive and consider his evidence on this appeal without embarking upon any fine analysis as to whether it meets the section 23 criteria. But having considered Mr Perrin's evidence we do not think his recollection of the date is reliable. The 28th was first suggested to him and emerged in his first statement after discussion with Mr Holford and Mr Townsend. His first reason for remembering the date proved to be wrong. The times he gave in his first statement - finishing work at 11.00am and arriving at the pub at 2.00pm are more consistent with what it transpires he actually did on the 21st than with what he actually did on the 28th. We found his later attempt to justify remembering the 28th by the fact that this was the day he did the earlier shift unconvincing. The reference to Mr Townsend drinking orange juice is of course dependent upon Mr Townsend's evidence about that date being accurate. The jury obviously concluded that it was not.

This morning Mr Mott, made a further point that Mr Perrin's evidence was that on the day he describes the group were already in the pub when he arrived (about 1.30pm). That could not have been the 21st if the group had watched the match between Arsenal and Chelsea because they would not have got to the Victoria until well after 2.00pm that day. However, there was a discrepancy between the evidence of Mr Holford and Mr Townsend as to when the group arrived in the pub. Mr Holford said it was between 12.30pm and 1.30pm; Mr Townsend said that they had come in at about 3.00pm. So there is a doubt about whether the group were in the pub at the time Mr Perrin arrived or not and this point does not cause us to change our assessment of Mr Perrin's evidence. It was a point which could be made on Mr Holford's evidence in any event.

Despite our conclusion about Mr Perrin's evidence, we should obviously consider whether cumulatively it and the other grounds of appeal cast doubt upon the safety of the appellant's conviction.

But before considering this we must deal with the other evidence which we have heard from Poppy Humphries who says she was in the Victoria with her father on the afternoon of the 28th when she saw Charlotte whom she knew with Gus and other people.

We think the least said about this evidence the better. It is not capable of belief and therefore should not be received by this court. Put shortly, our reason for reaching this conclusion is that the evidence she gave about a statement which she made to the police during the course of the murder enquiry in this case and her assertion that she had told the police of what she had seen on the 28th was self-evidently untrue.

So finally we turn to consider whether cumulatively the grounds of appeal and the additional evidence which we have received cast any doubt on the safety of the appellant's conviction. The circumstantial case against the appellant was very strong. There was no explanation for the scientific evidence against him. How did Charlotte's blood come to be on his trainers? How did so much of her blood come to be found in the car in which he drove her away from the party, including a stain on the hoodie which was found to contain both his and Charlotte's DNA? Why did the hoover with which he had cleaned out the car contain a button and thread identical to that which had been on Charlotte's trousers? How did Charlotte's bag come to be on the track along which the appellant must have passed and re-passed to get to and from the tunnel? The fact that it was first seen between 11.15am and 12.15pm on the 28th strongly supported the fact that she was dead by then and cast considerable doubt on the evidence of later sightings. How did Charlotte's boot come to be on waste ground close to the appellant's house? Added to this formidable circumstantial case was the evidence about the appellant's appearance on the Saturday morning and his activities then and in the days which followed.

Against this and, as Mr Mott put it, pulling in the opposite direction, was the evidence of later sightings which of course the scientific evidence could not disprove as such. It raised an issue which was classically one to be resolved by the jury. They resolved it against the appellant. There was ample evidence from which they could conclude that the defence witnesses were mistaken, notably the evidence from those who actually were in Gus's group that they had gone to the Victoria on the 21st and not the 28th. We do not think that a further witness in the shape of Mr Perrin supporting the evidence which the jury already had from Mr Holford and Mr Townsend would have made any difference.

For these reasons we conclude that the appellant's conviction is safe and therefore his appeal against conviction must be dismissed.