THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MRS JUSTICE HALLETT
and
MR JUSTICE CRANE
- - - - - - - - - - - - - - - - - - - - -
R
v
Norman Edward GILFOYLE
----------------------------------
(Computer Aided Transcription of the Stenograph Notes of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG Tel: 020 7404 1400
Official Shorthand Writers to the Court)
----------------------------------
Mr Michael Mansfield QC & Mr JH Gregory appeared on behalf of the Appellant
Mr William Clegg QC & Mr N Flewitt appeared on behalf of the Crown)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
The Vice President
1. Shortly after 7 pm on 4th June 1992 the body of Paula Guilfoyle, the appellant's heavily pregnant wife, was found hanging in the garage of their home in Grafton Drive, Upton, Wirral. She had been dead for several hours. At the appellant's trial before McCullough J in 1993, and subsequently, it has always been common ground that there were only two possible explanations - death at the deceased's own hand or murder by the appellant. The appellant did not give evidence at his trial and no evidence was called on his behalf. On 3rd July 1993, having visited the scene, and following an impeccable summing up and lengthy deliberations, the jury unanimously convicted the appellant of murder.
2. On 20th October 1995, a differently constituted division of this Court, as reported at [1996] 1 Crim App R 302, dismissed the appellant's appeal. One of the grounds of appeal then was that the verdict was unsafe in the light of evidence available from Professor Knight, a forensic pathologist. The court declined to receive his evidence on the ground that it was satisfied that defence counsel at trial had made a reasoned decision not to call Professor Knight, which was well within the scope of the careful exercise of his discretion and there was no error of judgment operating to the appellant's prejudice.
3. The appellant now appeals against conviction on a reference by the Criminal Cases Review Commission, under s9 of the Criminal Appeal Act 1995. We are grateful for the Commission's Statement of Reasons.
4. The Crown's case was that the appellant murdered his wife and tried to make it look like suicide. It was said on the appellant's behalf that she might well have committed suicide or killed herself accidentally in the course of some grand gesture.
5. We turn to the facts.
6. The appellant had served in the Royal Army Medical Corps. He left the army in 1986. From January 1991, he worked as an auxiliary nurse at Murrayfield BUPA Hospital in the Wirral. His job was to sterilise and prepare surgical instruments for use in operations. The deceased was his second wife. They married in June 1989. She worked at the Champion Spark Plug factory in Upton. She also ran a mail order catalogue business from home. In 1991, they bought 6, Grafton Drive. It needed considerable renovation, so, for a time, they lived with the deceased's parents. In the autumn of 1991, the appellant moved into 6, Grafton Drive, in order to spend more time on the house. The deceased remained with her parents, where the appellant also stayed from time to time. On 11th November, the pregnancy of the deceased was confirmed by her general practitioner. The expected date of confinement, as the appellant knew, was 18th or 19th June 1992.
7. In the early summer of 1991, the appellant had started a relationship with Sandra Davies, who worked at the same hospital. At one stage she wrote a love letter to the appellant, at his request. The appellant told his wife about the relationship. He told Sandra Davies that he was separated from his wife and invited her to move into 6, Grafton Drive. The deceased moved in at the end of October or beginning of November 1991. She telephoned Sandra Davies telling her to have no more contact with the appellant and Sandra Davies broke off the relationship. However, the appellant sent Sandra Davies a birthday card on 11th February 1992 and a Valentine card the same month. In April 1992, he showed her a letter which he said his wife had written to him. This was referred to at trial as the "Nigel" letter. It stated that the appellant was not the father of the child she was expecting, which was untrue, as subsequent DNA evidence showed. It said she had been having an affair for the previous 14 months with a man called Nigel: no man called Nigel existed and there was no evidence the deceased was having an affair with anyone. It said that the appellant had been tricked about the dates in relation to paternity: he had not, because he had attended the gynaecologist and knew the expected date of confinement from the beginning. The letter also asserted "I would like you to try and pick up the pieces with Sandra". After the deceased's death, other letters were found in notebooks in the house. One typed letter had been written about the end of October 1991, a day or two after the appellant had told his wife he had someone else. She referred to the coming baby "when I am at the lowest ever in my life" and to being undecided whether to bring up the baby herself or to give it for adoption. As a result of ESDA testing, another typed "suicide" letter, referred to as the "indented" letter was revealed in a notebook. A handwriting expert said that there was strong evidence that it had been written before March 1992, when some domestic accounts had been written in the same book. It contained falsehoods: in passages similar to the Nigel letter it referred to an affair which she said she had been having for the previous 16 months, it said that the father of the child that she was carrying was going away and she had nothing left to live for. Another note, of unknown date, hand-written, and addressed "To whom it may concern", was found in a foot stool in the kitchen. It said "I Paula Guilfoyle am ending my life. I have taken my own life and I am doing..." In interview with the police, the appellant said his wife had told him 2 days before she died that her brother-in-law Peter Glover was the father of the baby. Mr Glover denied this in evidence and denied any impropriety in his relationship with the deceased. DNA testing, as we have said, established that the appellant was the father.
8. A Miss Coltman, albeit criticised for partiality because she said on 7th June 1992 that she "wanted to help clear Paula's name" and also said she had hated the appellant since Paula's death, gave evidence that the appellant had told her that, in connection with his job at the BUPA hospital, he was being trained to go on a crash team to go out to cases of suicide or attempted suicide. Miss Coltman remembered the conversation because she had asked why such people would be taken to a private hospital without knowing whether or not they had a BUPA card. Another witness, Mr Mallion, also said the appellant had told him he was on a suicide course at work. In interview, the appellant accepted he had had some conversations with the deceased and Mallion about the possibility of doing a course or project which involved a consideration of suicide. It was not suggested to witnesses from the hospital who gave evidence for the prosecution that the appellant had been offered any such training. Miss Coltman also said the appellant had claimed to help at operations at the Murrayfield, but she did not believe him. In April and May 1992 the appellant told a number of witnesses that the expected baby was not his and that either his wife had left him or she was going abroad.
9. Three weeks before the baby was due, a party was held when the deceased left work. She was described as "radiant". Seventeen witnesses described her as being, in the spring of 1992, happy and looking forward to the birth of the child, despite misgivings about the birth itself. Her GP, who saw her regularly and last saw her a week before her death, and her gynaecologist, both described her as fit and positive about the birth. She had no history of depression. She had bought two sets of baby equipment so that one could be left with her mother, who was going to look after the baby when she returned to work. Two days before her death she went to the library and, appearing happy and normal, borrowed 6 books on childcare and names. She had twice asked a vicar to christen the baby. She had prepared a nursery.
10. On the morning of 3rd June she was happy and normal. On the afternoon of 3rd June she had a conversation with a Miss Barber about a man whom they both knew, who had recently hanged himself. The deceased said "how could someone hang themselves? how could you get so low? His wife will feel guilty for the rest of her life". On the evening of 3rd June she was her usual happy self.
11. On the morning of 4th June, Mrs Brannan, a market researcher, called at the house in connection with a wine survey and spoke to the appellant and the deceased. She was there for about 15 to 20 minutes. She was unclear about the time, but thought the visit was between eleven and noon. The appellant, in interview subsequently, said she had left by 11.10 to 11.15 am and he had left for work about 11.25 am. At 11.50 am Mrs Melarangi, a courier for Freemans catalogue company, called to deliver a package, but received no reply. Others called at the house between 2.00 and 2.30 pm and they obtained no reply. At 2.00 pm the deceased was due at an anti-natal appointment, none of which she had previously missed. She did not attend.
12. Meanwhile, the appellant, whose shift at work began at 12.30 pm was seen by Sandra Davies reading a paper in the works canteen from about 11.30 am to 12.20 pm. His shift was due to end at 8.30 pm, but he asked for time off and was allowed to leave at 4.30 pm. There was no evidence that he had been absent from work between 11.30 am and 4.30 pm. According to the appellant, in interview, he went home at about 4.40 pm, noticed his wife was missing and found a suicide note in the kitchen. It was typed and was before the jury. It started "I've decided to put an end to everything". It contained echoes of the October 1991 and Nigel letters and ended with an apology for causing pain and suffering by taking her own life. As a result of reading it, he said he panicked. He did not search the house but went straight to his parents house at about 4.50 pm. His mother was there. When his father returned, about 6 pm, the appellant and his parents went to Grafton Drive. This account of his movements was not confirmed by his mother or any other witness and was at variance with the evidence of three other witnesses. Mrs Melarangi said she visited 6, Grafton Drive to deliver a second parcel about 5.30 pm and the appellant was in the drive. He signed the delivery note and manifest in his wife's name. It was suggested to her, but she did not accept, that she was wrong about the date. It was also suggested that she was unreliable because in early June she was suffering from depression. A neighbour, Mrs Jones, said she saw the appellant in his drive at about 5.30 pm: she fixed the day and time by reference to her children's music lessons. No reason why she should be regarded as unreliable was suggested to her. A Mr Owen said he saw the appellant going into a shop in Upton at about 5.50 pm, which he fixed by reference to a timed cash withdrawal at 5.37 pm: he did not like the appellant, so it was said that his evidence might be biased.
13. Shortly before 7 pm, the appellant's father telephoned his son-in-law Paul Caddick, who was a police sergeant. He arrived at Grafton Drive at about 7 pm and searched the house. He telephoned the police and then found the garage was locked. He asked the appellant for the keys. The appellant gave him a bunch of keys from the kitchen which belonged to the deceased. None of them fitted the garage. The appellant picked up the mat in the porch and gave Mr Caddick two single keys with one of which he opened the yale lock of the garage. Caddick and another police officer said the two keys were identical. The appellant in interview said there should have been a garage key on Paula's key ring. No other garage key was found inside the garage or elsewhere.
14. In the garage, the deceased's body was hanging by a rope from a roof beam, with an aluminium step-ladder behind. The distance from the top platform of the ladder to the underside of the beam was 7` 4" and to the topside of the beam 7` 10". The legs were crossed behind and bent at the knee with the feet crossed at the ankle and one foot resting on the bottom rung of the ladder. Other police officers and the coroner's officer arrived. As the coroner's officer saw no suspicious circumstances, the body was cut down. According to the coroner's officer, the rope had been wrapped round the beam three times with a knot halfway up the side of the beam. He was 6` 1" tall. The knot was only just within his reach when standing on the platform of the ladder. Regrettably, no photographs were taken of the body before it was cut down or of the rope on the beam, and no body temperature was taken. When Dr Roberts, the police surgeon, arrived at 8.20 pm he took, for teaching purposes, three photographs of the body on the floor of the garage. He was not asked to consider the time of death until the trial. At that stage, he and Dr Burns, the pathologist who carried out a second post mortem, estimated the time of death as having been between 3 and 8 hours before Dr Roberts had examined the body. Both acknowledged that the margin of error could be considerable.
15. Post mortem examination confirmed that the cause of death was hanging. There was a single ligature mark and, apart from two small scratches immediately above it, no other injury to the body. There was no sign of drugs or alcohol. The deceased was 5' 8" tall. Her total reach was 7` 2". A mortuary technician removed the ligature from around the neck and it was thrown away. He subsequently re-constructed the two knots, one on top of the other, on the ligature as he remembered them. This would have permitted the ligature to tighten under the weight of the body. The end of the rope which had been attached to the beam was preserved. There was no evidence of the length of the rope, exactly where the knot was positioned on the beam, or the exact distance of the deceased's feet from the floor, although it was later estimated that her knees were about 15 inches from the floor, so that her feet would have been on the floor had her legs not been bent. A practice knot which could form a noose was found on a rope in a drawer but there was no evidence as to who had been practising.
16. Although, as we have said, the death was not initially regarded as suspicious, on 8th June 1992, three of the deceased's friends, Diane Mallion, Julie Poole and Christine Jackson, (who did not give evidence before the jury because the Crown accepted that their evidence was inadmissible) made statements to the police about conversations they had had with the deceased in April or May 1992. They said that she had told them that the appellant had asked her to write suicide notes for a project at work and had told her what to write. This had worried or frightened her. According to one of the witnesses she said that, after she had written the notes, the appellant had taken her into the garage to show her how to put up a rope. It was these statements which caused the police to re-consider their initial assumption that the death was due to suicide and to investigate the possibility of murder.
17. On the occasion of the last appeal, Beldam LJ in giving the judgment of the court summarised the statements of these three ladies and, at page 321D, commented "Paula's state of mind was one of the principal issues in the case. The defence contended that the notes evidenced a suicidal frame of mind". At page 323D Beldam LJ said
"we were satisfied that if we considered it necessary in the interests of justice the fact that the statements were made could be proved to show that when she wrote the notes Paula was not in a suicidal frame of mind and she wrote them in the belief that she was assisting the appellant in a course at work. That the appellant said he was on a course concerned with suicide was established by other witnesses. There was no evidence to suggest that it was true. Having reached this conclusion, we did not consider it necessary to consider the further question of whether the statements were admissible to prove that the appellant had, in fact, asked Paula to write the notes and had suggested their contents".
The court concluded that it was not necessary or expedient in the interests of justice to require the 3 witnesses to give evidence. We reached the same conclusion after considering the impact of the fresh expert evidence which we heard.
18. The prosecution case at trial was, in summary, that the appellant had tried to make murder look like suicide. He had tricked his wife into writing a number of notes including the suicide letter which he said he had found after her death, and had persuaded her to take part in a suicide experiment. The Crown did not, in opening, seek to prove the mechanics whereby the appellant had caused the death. But, in the light of evidence given by Dr Burns in cross-examination and re-examination, their case at the end of the evidence was that the appellant had persuaded the deceased to have the rope tied round her neck or to put her head into a noose while standing on the ground. The position of the body was consistent with her having then suddenly been knocked off her feet, giving her no time to struggle, so that the ligature tightened under the weight of her body causing death quickly. Thereafter, he had dressed the scene to make it look like suicide. Dr Burns said that two small parallel scratches on the deceased's neck above the ligature were striking (a comment which, as the judge reminded the jury, he had not made in his original statement) and that, in deaths by hanging, scratches should be interpreted as attempts to release the ligature until proved otherwise. He said that in 12 years, seeing about 10 cases a year, he had seen no case of suicide in which there was a scratch mark on the neck. Most suicide victims had their feet well above the ground, though, in many suicides, the feet were on the ground and there were successful suicides when sitting, kneeling or even lying down. The coroner's officer said the body touched the floor in about half the many hanging deaths he had seen. It was the Crown's case that the deceased was not tall enough and was too heavily pregnant to put the rope round the beam several times and tie it at the side of the beam when standing on the aluminium step-ladder. Had she been set on suicide, loose timbers at about head height were far more obvious and accessible than the beam as a place from which to suspend the rope. A longer set of wooden step-ladders was kept in the storeroom and found there after the death, but if she had used them it was unlikely that she would have returned them to the storeroom before committing suicide. The appellant, however, could have used the wooden step-ladder to rig up the rope in advance and then put the ladders away. There was some imprecise evidence from neighbours of a noise from the direction of the garage at 4 am on 4th June. It was said that the appellant, having prepared the noose in the garage, removed his wife's key from her key ring lest she go into the garage and see the noose. There was nothing in her personality or behaviour to suggest that she was about to take her own life. She had no record of depression and her approach to the birth was positive. The "suicide" letter and other letters were false, completely out of character and did not represent her true state of mind. The appellant had lied about his movements after leaving work. He had done so to avoid having to explain why he had not sought help or begun enquiries before he did.
19. In interviews, over many hours, the appellant denied murdering his wife and maintained that she had committed suicide or killed herself accidentally in the course of a grand gesture. His case was that she had not been herself for several days before her death and was petrified of the impending birth. Suicide was on her mind, as evidenced by the fact that she had raised the topic with others in the week or so before she died. She may have written the Nigel letter in order to gain the appellant's affection or increase it and she may have told him she was having an affair with Peter Glover for the same reason. The position of the body was consistent with suicide. It was not uncommon in suicide to find the feet within reach of the ground. There was no indication of any struggle in the garage and the two scratches could have been explained as the automatic movements of the hands as the ligature tightened. It was ridiculous to suggest that the appellant had persuaded his wife to go into the garage and let him tie a rope round her neck. There were bound to have been signs of a struggle. It was possible she had tied the rope to the beam with no intention of taking her own life but something had gone wrong and she had died by accident. The appellant was looking forward to the birth of the child. He did not have the opportunity to kill his wife between Mrs Brannan's departure and going to work. Mrs Melarangi was mistaken about the date and time she saw the appellant. Her evidence was unreliable. Mrs Jones and Mr Owen were also mistaken about seeing the appellant that afternoon.
20. At the outset of the hearing of the present appeal, we first heard submissions as to whether we should receive fresh evidence under section 23 of the Criminal Appeal Act 1968 as amended by the 1995 Act. On behalf of the appellant, Mr Mansfield QC, who did not appear at the trial but who appeared at the previous appeal hearing, invited us to admit two categories of fresh evidence, first, of a psychological and psychiatric nature from Professor Canter, a distinguished psychologist, and Dr Weir, a very experienced psychiatrist and, secondly, in relation to pathology and knots, from Professor Knight, Professor Crane, and Mr Ide.
21. Mr Mansfield submitted that whether it was suicide or murder was finely balanced, because of unusual features on both sides: on the one side, the deceased was within two weeks of giving birth and apparently in good health and spirits and the obvious human response would be "why would she commit suicide"; on the other side, the appellant was looking forward to the birth, there was an extremely narrow window of opportunity for him to have murdered his wife between Mrs Brannan's visit and his being seen at work and there was no sign of any struggle in the garage or on the body. Accordingly, he invited us to admit fresh evidence from the witnesses to whom we have referred in order to cast light on the deceased's state of mind and the mechanics whereby her death was caused.
22. We declined to receive the evidence of Professor Canter and Dr Weir and we now give our reasons.
23. As to Professor Canter, his main area of expertise is the systematic analysis of human behaviour in order to identify the dominant strands within it. At trial, the prosecution wished to call him to give evidence in accordance with his report of 25th March 1993, which the judge ruled was inadmissible. Professor Canter's conclusion at that time, having examined the "suicide" note and the other notes said to have been written by the deceased, was that the deceased's behaviour was out of keeping with that typical of women who commit suicide and that it was very unlikely that she had written the "suicide" letter with the intention of taking her life. On 21st August 1997 he wrote to the appellant's solicitors stressing that his earlier report emphasised the lack of any precursors indicative of an intention to commit suicide and that there were a number of aspects of her life of which he was not fully aware when he wrote his report. He identified these as "her early experience of the violent deaths around her and her reaction to them", "the hint of depression and mood swings in her medical records and from close associates" and "her feelings about her pregnancy and how it related to her relationship" with the appellant. He said a much more thorough "psychological autopsy" could now be carried out, involving a careful study of the deceased's diary and direct questioning of her family and those who knew her. In a letter to the CCRC on 28th April 1998 and a report dated 10th July 2000 he changed his mind in relation to all the matters on which he had relied in his initial report and, having reconsidered the notes, diary and other documents written by the deceased, the reports of Professor Knight and Dr Weir, to which we shall come, and the views of the appellant and his family, but not those of the deceased's family, he concluded that the expression of opinion in his initial report was wrong and that the material before him demonstrated convincing support for the deceased having taken her own life.
24. In our judgment, the trial judge was correct to exclude Professor Canter's views at trial and they are, as a matter of law, inadmissible before us. In Turner 60 Cr App R 80 at page 83 Lawton LJ said:
"An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary...... the fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; there is a danger that they think it does...Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life".
We accept that there may be mental conditions other than mental illness in relation to which a jury might require expert assistance (see per Farquharson LJ in Strudwick & Merry 99 Cr App R 326 at 332) But expert witnesses must furnish the court:
"with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence"
(per Lord President Cooper in Davie v Edinburgh Magistrates 1953 SC34 at 40;
and see, also, the discussion at pages 521 to 523 in Cross and Tapper on Evidence 9th
Edition).
25. In our judgment, although Professor Canter is clearly an expert in his field, the evidence tendered from him was not expert evidence of a kind properly to be placed before the court for a number of reasons. First, although this alone would not necessarily be fatal to the admissibility of his evidence, he had never previously embarked on the task which he set himself in this case. Secondly, his reports identify no criteria by reference to which the court could test the quality of his opinions: there is no data base comparing real and questionable suicides and there is no substantial body of academic writing approving his methodology. As Professor Canter says himself in a draft article on psychological autopsy at page 34...
"It has taken off and been used before it has reached the maturity needed to be allowed safely out of the careful confines of its professional birthplace"
At page 27 he says:
"there is very little detailed empirical evidence available on many topics that are relevant to preparing psychological autopsies.. The scientific literature also indicates the lack of a comprehensive assessment and evaluation of the nature and validity of those investigations which have been carried out......It is therefore most appropriate to consider the psychological autopsy as a relatively unstructured technique".
The American Psychology Association Panel has recommended that psychologists conducting a psychological autopsy state in their report that the conclusions drawn are based on a speculative view of events. In our view unstructured and speculative conclusions are not the stuff of which admissible expert evidence is made. Thirdly, Professor Canter's views are based on one-sided information, in particular from the appellant, and his family who have never given evidence. Professor Canter wanted to, but did not, interview the deceased's family, presumably because they would have information material to his conclusions. Fourthly, we very much doubt whether assessing levels of happiness or unhappiness is a task for an expert rather than jurors and none of the points which he makes about the "suicide" notes is outwith the experience of a jury. Fifthly, there is English, Canadian and United States authority which points against the admission of such evidence. In Chard 56 Cr App R 268 it was held that a psychologist may not give evidence of how someone's mind operated at the time of the alleged offence, save in cases of insanity or diminished responsibility. In Weightman 92 Cr App R 291 the evidence of a psychiatrist was held inadmissible when its purpose was to tell the jury how someone not suffering from mental illness is liable to react to the stresses and strains of life. In R v Valley 26 Canadian Criminal Cases (3rd) 207 the Ontario Court of Appeal concluded that psychiatric or psychological evidence was inadmissible in a murder trial to show that the deceased had sado-masochistic tendencies. Martin J at page 237 said that as the doctor:
"had never examined the deceased any opinion he might give was conjectural and was necessarily based on such things as the deceased's apparel and his association with the persons involved in sado masochism".
The doctor was in no better position to draw an inference on these facts than the jury. In R v Mackintosh 117 CCC (3rd) 385 the Ontario Court of Appeal in 1997 held inadmissible psychiatric or psychological evidence, in an identification case, as to witnesses having difficulty in perception and recall of circumstances that are stressful and brief. In the United States, in Thompson v Mayes 707 SW 2nd 951 the Texas Court of Appeal upheld a trial judge's ruling excluding evidence of a psychological autopsy in relation to the state of mind of the donee under a will who was said to have killed the donor and then committed suicide: the evidence was tendered to establish that the donee was not responsible for the donor's death. So far as is known, there have been seventeen occasions in the United States when criminal trial judges have admitted evidence of psychological profiling: in each case the decision has been overturned on appeal. The guiding principle in the United States appears to be (as stated in Frye v United States 1923 293 F1013) that evidence based on a developing new brand of science or medicine is not admissible until accepted by the scientific community as being able to provide accurate and reliable opinion. This accords with the English approach as reflected in Strudwick & Merry. Sixthly, Mr Mansfield accepted that, if evidence of this kind were admissible in relation to the deceased, there could be no difference in principle in relation to evidence psychologically profiling a defendant. In our judgment, the roads of enquiry thus opened up would be unending and of little or no help to a jury. The use of psychological profiling as an aid to police investigation is one thing, but its use as a means of proof in court is another. Psychiatric evidence as to the state of mind of a defendant, witness or deceased falling short of mental illness may, of course, as we have said, be admissible in some cases when based for example, on medical records and/or recognised criteria (see e.g. McCann, unreported, CACD transcript 28th November 2000 and the authorities such as Ahluwalia 96 Cr App R 133 in relation to battered wife syndrome). But the present academic status of psychological autopsies is not, in our judgment, such as to permit them to be admitted as a basis for expert opinion before a jury.
26. As to Dr Weir, he prepared a report dated 7th June 1997 with corrections on 6th June 1998 and an appendix dated 2nd November 1998. He expressed the opinion that the deceased "was phobic about labour". He identified four instances of her referring to apprehension about the birth: first, to a friend at work, because she was an old mother and wouldn't know what to do whereupon she was re-assured and "always seemed happy with that": secondly, in a chatty letter to a friend in March 1992, when she expressed nervousness about all the blood etc, in case she did not know what to do; thirdly, to the appellant's sister at the end of April 1992 when she said she was frightened of actually having it; and, fourthly, to the appellant's brother to whom, on two occasions, she said she was frightened about having the baby. We understand phobia to be an irrational fear. Dr Weir did not seek to explain how these four comments could lead to a psychiatric diagnosis of phobia. Bearing in mind that this was to be the deceased's first child, it seemed to us that it would have been wholly extraordinary if she had not expressed fear about the birth. We certainly saw nothing irrational in her doing so. There was, in our judgment, nothing in this part of Dr Weir's report to substantiate his diagnosis in relation to someone whom he had not seen. His comments on the "suicide" notes were, as it seemed to us, in no sense scientific and contained nothing which would not have been apparent to a jury. Furthermore they were made in the context of his acceptance of the appellant's highly questionable account that the marriage was failing from June 1991. In these circumstances, we did not receive Dr Weir's evidence because it was not of an expert character which could have assisted a court and it would not, in any event, have afforded any ground for regarding the jury's verdict as unsafe.
27. We saw the videoed re-construction, which was before the jury, of a heavily pregnant woman, an inch shorter than the deceased, ultimately succeeding in throwing a rope over the beam while standing on top of the aluminium ladder, which was being steadied for her. On the pathological aspect of the case, we heard oral evidence from Emeritus Professor Knight. His report of 24th May 1993, as well as a report from Dr Lawler, another pathologist, which was never adduced, was in the hands of the defence at trial. Subsequently, Professor Knight wrote to the appellant's sister on 9th June 1994 and to the appellant's solicitors on 18th March 1997 and 15th March 2000. We have already referred to the approach taken by the Court of Appeal at the last appeal to the admissibility of evidence from Professor Knight. We do not disagree with that approach. But, as there was fresh evidence from Professor Crane and Dr West which we thought we should hear de bene esse, we thought it appropriate that we should also hear from Professor Knight. We would not have received his evidence had it stood alone, because it was available at trial and a reasoned decision not to call him was made. His view, throughout, has been that the pathological evidence is consistent with suicide. He has never seen a case of homicide by hanging. His approach was that what might have occurred in the garage was largely a matter of common sense rather than pathology. Whether the hanging occurred when the deceased was sitting on the step ladder or standing on the ground was not a medical matter. But it was somewhat fantastic, as a matter of common sense, that any one would permit a noose to be placed over their head: this would be pretty foolish. He accepted that there was nothing pathological to exclude homicide on a compliant victim. Scratches were the only pathological matter and might have occurred in suicide or homicide. He said that unconsciousness can come very quickly when pressure is applied to the neck and the rope would not have to be tight for pressure to be applied.
28. Professor Crane, a distinguished pathologist from Northern Ireland, produced a report dated 15th October 1998 for the CCRC and he wrote a letter to the CCRC on 22nd February 1999. Unlike Dr Burns he had seen scratch marks in cases of suicide and he said one might expect more severe or extensive marks in a case of homicide. He had personal knowledge of a case where a pregnant woman had committed suicide He accepted that homicidal hanging can occur on a compliant victim. Hanging is relatively easy to effect, because the pressure required on the neck is small. He attached no significance to the finding of the deceased's feet on the ladder, which could have occurred whether the deceased had been standing on a low or higher step. Loss of consciousness would take a number of seconds but might occur within ten seconds. He accepted that pathology can show death by hanging. But how the noose is put round the neck is normally determined by all the evidence. There was nothing in the scratches inconsistent with the murder of a compliant victim. He disagreed with Dr Burns who had said that, in the majority of suicides by hanging, the feet are well above the ground: this should have been the minority. The rope would not need to have been tied tight for the deceased to be killed. If she had been sitting on the step ladder with a loose rope round her neck and had then moved forward off the ladder this would have been a simple way for life to be lost. The pathological findings were equally consistent with homicide and suicide. In both, the same mechanism would have resulted in part of the body weight being taken off the feet. It would have been quite difficult simultaneously to push the deceased off the ladder from the side and to keep her feet in the air.
29 Dr West, a highly experienced pathologist had prepared a report of 7th August 2000 and gave evidence before us for the Crown. He had personally been involved in the murder or attempted murder by hanging of three compliant victims in prison. It would not be necessary for the victim's feet to be off the ground. All that is required is pressure to the front of the neck which, if it constricts the arterial flow, leads to loss of consciousness within seconds. This could have been achieved by pushing the deceased in the back when her neck was in a loose ligature. Homicide and suicide would produce the same mechanical effect, namely the body moving forward against a ligature, whether that person was standing or sitting on the steps. If the legs had been held he would have expected the ligature mark to be much broader with signs of the ligature being in more than one position. In this case, the pathological evidence does not help in determining whether the death was homicide or suicide. The scratch marks do not help, because they are found in 5% of suicide cases. The deceased's feet had not been on the ground, but somewhere on the steps. The feet could be ignored as long as the main body mass moved forward and stayed against the ligature: this could have been achieved by pressure on the back.
30. We also heard evidence, on behalf of the appellant, from Mr Ide a forensic scientist for 30 years and a specialist in knots and ligatures. He prepared a report for the CCRC dated 9th May 1998 and he made further statements on 12th June 1998 and 4th December 2000. His conclusion was that the deceased could not have been standing on the floor when the noose was put round her neck. She would have needed, initially, to be at a higher level in order to finish with her knees 15 inches above the floor, because the rope would have stretched and individual knots and the noose would have tightened. His conclusion was that she would have had to be standing on the ladder somewhere near the top. If sitting she would not have been high enough. His conclusion, in his report of 12th June 1998, was that the evidence provided by the knots and rope did not provide unambiguous evidence to indicate either murder or suicide but "this evidence provides slightly more to support the hypothesis that Mrs Guilfoyle had been murdered rather than that she had killed herself". That conclusion was not subsequently qualified. He said it would have been difficult if not impossible for the deceased to tie the knot in the position found at the side of the beam. It would have been technically possible, but considerably difficult for the deceased to wrap the rope several times round the beam. If a knot had been tied after wrapping round it would have had to be higher than it was found.
31. Mr Mansfield submitted that, in the light of the evidence heard by this court, the case against the appellant pathologically and in terms of the ligature was now completely different from that at trial. He submitted that this must make a difference as to how the jury would approach the case. He submitted that, contrary to what Dr Burns had said at trial, the new evidence shows that the scratches are not striking and does not suggest murder is more likely than suicide. Further, contrary to the evidence of Dr Burns that the deceased was standing on the ground and had then been knocked off her feet when the noose was round her neck, Dr West's evidence is that if this happened he would have expected different ligature marks on the neck. Mr Ide's evidence is that she would have needed to be near the top of the ladder. The scientific evidence, submitted Mr Mansfield, played a role in determining whether it was homicide or suicide and therefore the verdict must be unsafe. He accepted that it would have been very difficult, if not impossible, for the deceased to tie the knot at the mid point or higher on the beam. He also conceded that the appellant's means of access to the beam for securing the rope would not have been limited to using the aluminium ladder, as there was the longer ladder found in the storeroom and the appellant could have gained access to the roof void. The notes by the deceased may, he submitted, have genuinely expressed unhappiness at the time of writing.
32. For the Crown, Mr Clegg QC submitted that, at the trial, there was no evidence from Dr Burns which was capable of proving the mechanics of murder. He was wrong in attaching significance to the scratches as a pointer to homicide and in saying that suicides are normally suspended above the ground; and his evidence as to the possible mechanism of death, namely being pushed forward with feet on the ground, was inconsistent with Mr Ide's evidence. On the other hand, the evidence from Dr West demonstrated a simple, easy, method of homicide, consistent with the pathological findings. But the pathological evidence could not at trial, nor can it today, prove murder. It is not necessary for the Crown to prove how the murder occurred, only that it was murder not suicide. It was accepted at trial that the pathology was consistent with suicide as well as with homicide and it could only have been on the other, non-pathological, evidence that the jury were sure that murder was proved. He submitted that that evidence provided a powerful circumstantial case of murder. By the terms of the Criminal Appeal Act the court must exercise its own judgment, as indicated in Stafford and Luvaglio 58 Cr App R256 and ask itself whether the impact of the fresh evidence would reasonably have affected the outcome.
33. Mr Mansfield stressed that this court is a court of review not a court of trial. The Criminal Appeal Act does not say how evidence which has been admitted by this court should be used. But the correct test is "might the fresh evidence have made a difference". He submitted that, as the experts heard by this court agree on a picture not left to the jury, namely that the scratches do not point to homicide rather than suicide, the feet of suicides are not generally off the ground and the deceased's feet would have been on the ladder, there must be some impact on the safety of the jury's verdict. He accepted that the prosecution do not have to prove the mechanics of the death in a normal case. But, he said, the present is not a normal case and, unless they prove how the killing was carried out, they cannot prove homicide. He was critical of the evidence of Miss Coltman and Mr Mallion in relation to the appellant speaking of a suicide course and of Mrs Melarangi and Mr Owen in relation to the appellant's movements on the afternoon of the 4th June. He invited us to say that the verdict is unsafe because the jury's evaluation of the non-pathological evidence might have been different had the jury heard the evidence which this court has heard.
34. It is, in our judgment, important to note that, although in cross-examination and re-examination Dr Burns expressed the views to which we have referred, the prosecution did not set out to prove by pathological evidence or otherwise what had occurred in the garage immediately prior to the death and the jury cannot have failed to realise that, in the absence of any eye-witness evidence, they could not know the precise course of events there. The purpose of the pathologist's evidence was to establish that death was due to hanging. The case was never presented on the basis that scratches could only be found in homicide. Dr Burns said that he had never seen scratches in approximately 120 cases of suicide, but he accepted, as the judge reminded the jury in summing-up, that it was possible that they were due to the deceased's hand moving involuntarily to the neck while she was committing suicide. Further, although Dr Burns said that the majority of suicides were suspended well above the floor he accepted, as again the judge reminded the jury, that, in many suicides, the feet are found on the ground and people have committed suicide sitting, kneeling or lying down. The coroner's officer had also said that the bodies touched the ground in 50% of the many suicides he investigated. As a result of cross-examination, Dr Burns expressed an opinion as to how death might have been caused, namely by pulling away the deceased's legs, which the evidence before us excludes and he also expressed the view that the pathological findings were more consistent with homicide than suicide, whereas the evidence before us is that they are equally consistent with either.
35. The crucial question is whether the evidence which we have heard, which, as Professor Knight emphasised, is mostly of a common sense rather than technical nature, might have affected the jury's verdict. This depends on consideration of the other evidence in the case and whether the new evidence might have affected the inferences to be drawn from that evidence.
36. As we have said, Mr Mansfield identified two areas of evidence, as to what the appellant said about a suicide course and as to the appellant's movements on the afternoon of 4th June, which, he suggested, need re-evaluation and resolution of issues which can only properly be carried out by a jury in the light of the new expert evidence. Assessment of credibility is, of course, a jury function. But, in the absence of any evidence from the defence, there were and are, in our judgment, no factual issues which required resolution in the present case. Despite Mr Mansfield's legitimate criticisms of Miss Coltman and Mr Mallion, the appellant in interview admitted saying to Mallion that he was probably going to do a project on heart or suicide and that he had spoken to the deceased about doing a course involving suicide. Therefore, the conclusion was and is inescapable that the appellant had discussed the possibility of a suicide course with more than one person. Equally, so far as the appellant's movements on the afternoon of the 4th June are concerned, although Mr Mansfield challenged the reliability of Mrs Melarangi and Mr Owen, he ventured no criticism of Mrs Jones. These three witnesses did not know each other, so collusion can be excluded and it is in the highest degree unlikely, quite apart from the extrinsic confirmation of day and time in the case of both Mrs Jones and Mr Owen, that they were all three mistaken, or malicious, in putting the appellant at or near Grafton Drive when he claimed to be at his parents. The inevitable corollary is that the appellant lied about his movements.
37. Accordingly, the decision as to whether the deceased's death was and is proved to be murder depends not on the resolution of factual issues but on the inferences to be drawn from proved facts. The most significant of those facts are these. The deceased was taking all obvious steps to prepare for the imminent birth of a child, for which, on the lay and medical evidence, she was physically fit and to which her attitude was positive. She was behaving happily and normally in the weeks immediately preceding, and up to and including a few minutes before, her death. The study of suicide was in the appellant's mind for some months before the death. Much of the content of the alleged suicide notes was demonstrably false. The deceased's garage key had been removed from her keyring and was not in the garage where she was found. From the top of the aluminium ladder it would have been impossible for her, save by standing on tip-toe, even to touch the underside of the beam. It would have been impossible for her to tie the knot where it was found. It would have been only with the greatest difficulty that, 8 months pregnant and unaided, she would have been able both to maintain her balance and to pass the rope over the beam not once but three times. If she was bent on suicide, there was a readily visible and accessible alternative from which to suspend the rope in the three loose timbers which were 5` 6" above the top step of the ladder, that is at her eye-level. The appellant had ample opportunity and the physical means to obtain the "suicide" note and to position the rope before Mrs Brannan's visit and there was some evidence of noise from the direction of the garage at 4 am. He had ample time, following Mrs Brannan's departure and before going to work, and even more before he needed to go to work, to carry out the killing which, as the evidence from Professor Knight and Dr West before us emphasised, could have been achieved very quickly and without the need for a running noose. The appellant had claimed that after finding the "suicide" note he made no attempt to find his wife and clearly lied about his movements on the afternoon of 4th June.
38. In our judgment, these facts and the inferences to be drawn from them are wholly unaffected by the evidence which we have heard, which did not, overall, assist the appellant's case. Mr Ide's expressed opinion was that the knot and rope evidence is slightly more supportive of murder than suicide. Granted that the new pathological evidence is neutral, in that it indicates that suicide is as equally likely as homicide, the decision as to which was the cause of death, now as at trial, depends on the non-pathological evidence. If that evidence proves, as in our judgment it plainly does, because that is the inevitable inference, that the appellant killed the deceased, it is immaterial precisely how he killed her.
39. Accordingly, we are unpersuaded that the jury's verdict might have been affected by the new evidence which we have heard. The verdict in our judgment is safe. Accordingly this appeal is dismissed.
