This is the first appeal, unsuccessful, by Colin Wallace against his conviction for manslaughter and ten years sentence.
This would be a routine appeal were it not for the fact that it was by Colin Wallace. The conviction was certainly useful for the British establishment who wanted to keep Colin Wallace quiet as he knew too much about high level abuse at 236 Upper Newtownards Rd, Belfast, otherwise known as Kincora. Colins entry in wikipedia  contains the following introduction.
“John Colin Wallace is a former British member of the Intelligence Corps in Northern Ireland and a psychological warfare specialist. He was one of the members of the intelligence agency-led ‘Clockwork Orange’ project, alleged to have been an attempt to smear various individuals including a number of senior British politicians in the early 1970s. He also attempted to draw public attention to the Kincora Boys’ Home sexual abuse scandal several years before the Royal Ulster Constabulary finally intervened. He was wrongly convicted of manslaughter in 1981, for which he spent six years in gaol, until 1987. The conviction was later quashed in the light of new forensic and other evidence that raised serious questions about the dubious nature of the evidence used to convict Wallace initially. The journalist Paul Foot, in his book Who framed Colin Wallace?, suggested that Wallace may have been framed for the killing, possibly to discredit the allegations he was making. This view was similarly expressed by Alex Carlile QC (now Lord Carlile), who later speculated that this may have been the motive not just for the alleged frameup, but also for murder.”
One of the reasons that British government wish to keep this whole saga quiet is the fact that they had thousands of agents and informants of which just one of the agents – Brian Nelson – may be linked to “dozens and dozens” of murders. 
During his investigations in Northern Ireland, ex Metropolitan Police Commissioner now Lord Stevens and his team arrested 210 paramilitary suspects of which 207 of them were agents or informants for the state. 
One of the means of making these people agents and keeping them under control was by means of monitoring their voluntary child abusing activities or setting up blackmail situation involving children.
High profile figures linked to Kincora have been Edward Heath, Lord Mountbatten, William Whitelaw and Morris Fraser amongst others.
Colins second appeal in 1996 which was successful is here 
Some reports have had victims names redacted and some assault details redacted.
This is a difficult balance- normally I would think that I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.
In addition to the obvious “victims redaction” I have thus “assault redacted” across most of the spectrum of abuse. This may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That information is mainly names of the perpetrators, past addresses, the actual charges the perpetrators faced – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.
If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.
Cathy Fox Blog Index and Timeline of Court Appeals and Documentation 
This appeal is in fact unredacted
Please note that victims of abuse may be triggered by reading this information. The Sanctuary for the Abused [A] has advice on how to prevent triggers. National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups. Other useful sites are One in Four [C] and Havoca [D]. Useful post on Triggers [E] from SurvivorsJustice [F] blog. Jim Hoppers pages on Mindfulness [G] and Meditation [H] may be useful.
 EWCA Crim J0212-1
IN THE COURT OF APPEAL
Royal Courts of Justice
Friday, 12th February 1982
Lord Justice Ackner
Mr. Justice Stocker
Mr. Justice Hirst
John Colin Wallace
(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., 36-38
Whitefriars Street, Fleet Street, London, EC4Y 8BH. Telephone Number:
01-583 7635. Shorthand Writers to the Court.)
MR. M. KENNEDY, Q.C. and MR. S. COLTART appeared on behalf of the Applicant.
MR. D. HOLLIS, Q.C. and MR. D. BLAIR appeared on behalf of the Crown.
(As approved by Judge)
LORD JUSTICE ACKNER : In a trial in March last year at the Lewes Crown
Court, which took over a fortnight and was presided over by Mr. Justice
Kilner Brown, the applicant, John Colin Wallace, was convicted of
manslaughter after being indicted for murder, and was sentenced to ten
He applies for leave to appeal against both that conviction and that
At the times with which we are concerned Wallace was employed by the Arun
District Council as their Information and Liaison Officer. His assistant
was Jane Lewis (to whom I shall refer hereafter as Jane). She was the wife
of Jonathan (sometimes referred to as John) Lewis, the man who was killed.
The case for the prosecution was that Wallace and Jane had been having an
affair and that Jonathan Lewis had his suspicions. On Tuesday 5th August
1981 the two men met. There was then an inexcusable and violent attack by
Wallace on Lewis, so much so that he was heavily concussed, and probably
rendered unconscious with a fractured skull. Thereafter it is alleged that
Wallace put the unconscious Lewis into the boot of his Austin Princess car,
of which he had the use in connection with the well known B.B.C.
competition known as the “Knock Out” competition, drove to the banks of the
Arun and then dumped the body in the river where he died from drowning. His
body was recovered some two days later.
The defence was that there was a meeting, but there was no unlawful attack
of any kind. The men spoke and parted on good terms. There was no dumping
of Lewis by Wallace in the river. Alternatively, the whole matter being
based upon circumstantial evidence, to which I shall refer, the prosecution
had not made out its case.
The brief facts are these. At about 4.30 p.m. on 5th August Lewis,
according ultimately to Wallace, telephoned him in his office. At 7.20
Wallace’s car was in the drive of his house. At 7.55, so a Mrs. Rider
put it, she telephoned Wallace’s house intent on speaking to his wife.
She was quite sure of the time within a couple of minutes, because she was
able to see the kitchen clock. Wallace answered the phone and truthfully
said that his wife was out playing squash.
The arrangements surrounding the evening of 5th August are important.
Wallace had planned a celebration dinner at the Avisford Park Hotel, which
is near Arundel. It was to be a surprise for Jane, a tribute to her for all
the work she had done in connection with the “Knock Out” competition which
had recently been finished. The plan was to keep Jane in the dark and away
from the hotel whilst all the guests were assembled and when she arrived
she would then have the surprise of discovering that this was a celebration
dinner given in her honour.
On the original plan Wallace was to get to the hotel well in advance in
order to see that the dinner was organised well before Jane arrived. As
matters turned out, he arrived at least half an hour later than originally
planned, and the prosecution case was that that was because he had by then
rendered Lewis unconscious and was concerned with how to dispose of the
Once at the dinner he awaited Jane’s arrival, and after she had arrived and
she had had the initial excitement about the surprise, he told her that
John Lewis would be late, but he told her no more, and I emphasise that
point. He made no mention of the meeting, discussion or anything of that
kind. She in fact ordered her husband’s meal because he was a person who
was punctual and in the circumstances of this particular occasion no one
expected that his lateness would be more than quarter of an hour.
The applicant left for a few minutes during the course of the meal and then
again for a longer period. He subsequently told the police that he did so
because he felt sick. He had been suffering from stomach trouble over the
weekend and that he left round about 10 p.m., so he said, to go back to his
house, which was about 7 minutes away, in order to collect
some Kaolin and other medicine to deal with his stomach troubles. He came
back. The prosecution’s case was that if he had not by then disposed of the
deceased’s body, that was the occasion when he did it. They did not accept
the suggestion that he had left in order to take medicine.
When the dinner ended Jane Lewis, the applicant and his wife went to Jane
Lewis’s house, she being of course very concerned at that stage at the
absence of her husband, and they remained there all night. The applicant
Wallace said nothing to her about having met her husband that evening and
nothing about having, in this break at 10 o’clock when he left, looked for
her husband and found his car, a Volvo, in the car park at the Arundel
Swimming Pool car park.
Round about 6 o’clock the following morning Mr. Barnes, the caretaker of
the Arun District Council offices, heard the sound of a car arriving in the
office yard, and saw the applicant driving one of the “It’s a Knock Out”
car. He spoke to him and Wallace said that he had cleaned the vehicle
before returning it to Wadham Stringers, who owned the car, and Mr. Barnes
saw the applicant take from his boot what looked like a large cardboard
box, about 18 ins. by 12 ins.
Mrs. Tombs, a cleaner, who had also arrived early, when emptying the
rubbish into the dustbin about 8 a.m. saw some rubbish inside which was not
normally there. The relevance of that was this, that blood stains were in
due course found in the Princess car, which was a fairly modern Princess,
but there was no carpet or mat in the boot. The prosecution’s suggestion
was that blood had got on to the boot mat, and that was being disposed of
at this hour in the morning by Wallace. Suffice it to say that there was a
conflict of evidence about whether there was a boot mat in that vehicle,
and the learned Judge pointed out in the summing up that a conflict in fact
existed. He pointed it out very shortly. He could have pointed out the
evidence in greater detail. If he had done so, it might have appeared that
the evidence that the mat was there was stronger than that it was not,
because Mrs. Lewis had seen the mat. But we need not speculate about that,
because the learned Judge left it on the basis that there was this
conflict. Accordingly I need go no further into it.
The next day, Thursday, there was a discussion between Wallace and Jane
Lewis as to whether they should disclose to the police something of their
relationship, and it was decided that they should. The following day,
Friday, 8th August, they both went and saw Superintendent Taylor, who in
fact had been a guest at the dinner party, and mention was made of the
relationship, although it appears to be common ground that Wallace
underplayed the nature of that relationship. On that day apparently the
body of Lewis was found in the river and the officer informed Jane.
On Sunday 10th August Detective Chief Inspector Harrison and Detective
Sergeant Kent saw Wallace at his home in Arundel. He willingly made a
statement and I shall refer to it, because it is a statement in which, with
some care and detail, Wallace explains when he last met, so he said, the
deceased, when he last saw the deceased and when he last spoke to the
deceased. The statement reads as follows:
“I have been employed by Arun District Council since October 1976 as the
Information and Liaison Officer. My duties include peace time and war time
planning, the administration of the Chairman of the Council’s office and
the provision of general Council information to the public. I first met the
deceased Jonathan Lewis in January two years ago. This was shortly after
his wife came to work for me as my assistant and was at a Council Civil
“A friendship developed. We found we had a common interest in squash and
through this we met socially at regular intervals. I would describe the
late John Lewis as a quiet spoken mature man. He had a good sense of
humour. He appeared to be fit and healthy, never complained of ailments,
never mentioned headaches. He never appeared depressed, never showed signs
of temper. I find it Inconceivable that he should take his own life.
“The relationship between Jane Lewis and myself involved no emotional
attachment until we began to work together on the organisation of the “It’s
a Knock-out competition” which was held at Avisford Park from the 20th
until the 23rd July, 1980.
“We were obliged to work excessively long hours and went to Lancashire and
Switzerland together with others in connection with the organization of the
“The association never became adulterous although we kissed, cuddled
etcetera when opportunities arose. We discussed our respective futures and
eventually concluded that after the work- involving “It’s a knock-out”
finished we would perhaps resolve the problem by agreeing to have a
“It was mooted that I would look elsewhere for a position and if our
feelings for one another remained unaltered we would discuss the matter
again before putting our marriages at risk.
“John Lewis never gave me an indication that he suspected that I was having
an affair with his wife.
“I last met the deceased on the evening of Monday, 4th August, 1980 when we
played squash together at Avisford Park at about 6.30 p.m. until 7.15. I
then stayed in the bar with him until 8.10 when Jane arrived.
“The deceased would have had an opportunity to observe some noticeable
insect bites on my left and right side but he made no comment about them to
“I last saw the deceased the following morning Tuesday, 5th August, 1980,
when he drove past me with Jane when our cars passed on the A.27. That
would have been about 8 o’clock.
“The deceased last spoke to me when I received a telephone call in my
Littlehampton office between 4 p.m. and 4.15 p.m. Tuesday 5th August 1980.
He referred to an arrangement we had made about the 28th July, 1980 to
attend a dinner at the Avisford Park Hotel.
“The dinner was to be held on Tuesday, 5th August 1980, and it was to be a
surprise as far as Jane Lewis was concerned. John Lewis had been consulted
by me about the date. The purpose of his ‘phone call on the afternoon of
Tuesday, 5th August, 1980, was to advise me that he would be slightly late
for the dinner which had been scheduled to start at 8.30 for 9.
“The deceased gave me no reason as to why he would be late, but I gathered
that in any event he would only be a few minutes late.
“Part of the scheme was for me to delay Jane Lewis at the office until
shortly before her squash game with my wife at 6.45 p.m. in order that she
would not have an opportunity to take food and spoil her appetite.
“I left the office at 5.55 leaving letters to type before she left herself.
“I went directly home going on the Ford Road. I was driving an Austin
Princess 2 litre car. This was prominently displaying “It’s a Knock-out
Livery” and was white. I believe it had twin aerials. This vehicle was
returned to Wadhara Stringers, Aldershot, on Wednesday 6th August, by
“I had been using this car over the last 4/5 months and from time to time
had used the boot.
“I cannot remember whether this vehicle had a fabric boot lining or not.
“Certainly I did not park this vehicle near the swimming pool car park
during that Tuesday evening.
“I arrived home at about 6.15 p.m. just in time to pass the time of day
with my wife who was leaving in the family Datsun.
“I had a bath, changed into a dark grey suit, blue and white striped shirt
and black shoes.
“I then went to wrap up a photograph I had got for the evening’s
activities. Realised I had left it at the office. I immediately went via
the Ford Road to my office. Picked up the photograph and returned home by
7.15 p.m. As far as I am aware unless I was seen by one of the cleaners or
someone attending a meeting in the Council chamber, no one saw me make this
visit. I received a ‘phone call at about 7.15 p.m. from a Mrs. Ryder in
respect of a game of squash with my wife.
“After making minor adjustments to the photograph I went to Avisford Park
“I remained at the Hotel until Jane’s arrival. After the initial surprise I
told her John would be late and she ordered his meal. He did not arrive at
all during the evening.
“I was feeling sick by 10 p.m. or thereabouts from some stomach upset which
had persisted over the weekend.
“1 went home to collect some Kaolin and morphine and returned to the party
after 20 minutes.
“My neighbours would probably have noticed my arrival and departure from my
house for this purpose.
“As the evening went on Jane became more concerned about the non-arrival of
John her husband.
“Eventually Jane was accompanied home by Eileen my wife and myself. We
remained the night at her home with her.
“During my association with the deceased we have made various appointments
to play squash and meet socially.
“He was a most punctual man who appeared to lead an orderly life who never
got confused with appointments he made with me.”
There is the position. There was no opportunity taken between the 5th
August and 10th August – no opportunity taken on 8th August, the Friday,
when he and Jane went to mention their association to the police,
and no opportunity taken on 10th August when asked by the police officer to
tell the truth – to tell the distraught widow about the meeting on Tuesday
After he completed that statement the officer left Wallace for some 20
minutes. By this time he had Lewis’s diary. Returning he cautioned Wallace
and told him that he had reason to believe that he had met Lewis at 6.30
p.m. on Tuesday when he disappeared. The answer to that was “No, I last saw
him when I played squash last Monday.” The officer then showed Wallace
Lewis’s diary and pointed out to an entry under 5th August in Lewis’s
handwriting ” Colin 6.30 p.m.” To that the answer was “Yes. We had arranged
to play squash that day but as the dinner party had been arranged in fact
we changed it to the day before and you will no doubt be aware that we did
play squash on the Monday.” The officer explained that the police had a
witness to corroborate the diary entry. Wallace then said that he had
spoken to that witness, “I think you will find that he is referring to the
previous day, the Monday”. When he was told that he, Wallace, appeared to
confirm that Jonathan Lewis had rung him during the Tuesday afternoon,
Wallace agreed. Lewis had told him that he would be late for dinner, but
gave the impression that he would not be very late. He said that he had an
appointment. It was then put to the applicant that he was the person that
Lewis was meeting, and the applicant said “No”.
He agreed that he had been very fond of Jane. The officer went on to refer
to the “It’s a Knock-out” car, saying that it was very distinctive and the
police, having made that comment, said that they were going to mount a
full-scale inquiry and that someone would remember seeing Wallace in his
vehicle near the Volvo. Wallace replied that he had already told the
officer that he had not been near the swimming pool car park on the
Further questioning followed and ultimately the applicant Wallace
said that he would tell the truth: “John Lewis did ring me and I did meet
him. John rang me at 4.30 and asked if he could see me. I guessed what it
was about. I know that John had been asking Jane about us the previous
night. He asked me to meet him in the car park. I met him. He was walking
towards me away from his car. I said: ‘Let us go to my house’. He agreed…”.
There Lewis asked about Jane and Wallace, and was told that there was
something between them. Wallace said “He seemed to accept ray explanation.
We finished our drink and I dropped him off by the newsagent’s by the
bridge….. He said he would come to the dinner.”
Wallace then said that he returned home, changed and then went to the
dinner. He became worried when Lewis did not come and left half way through
the meal. He went home first for some Kaolin and morphine, and then went
back to the car park and saw that the Volvo was still there.
He went to the Black Rabbit public house to look for Lewis. He thought that
he might have walked away. Then Wallace agreed to make a statement.
That statement is a much shorter one and reads as follows: “John Lewis rang
me at about 4.15 last Tuesday, 5th August. He asked me if he could meet me
briefly before the dinner at 6.30 at the swimming pool car park Arundel. He
gave no indication why. I agreed and met him at about 6.30 p.m. We went
home in my car. He didno’t say anything when we got in the car except could
we have a chat in private. We had a drink at my home and he said he had
reason to believe Jane and I were having an affair. Was it true. I said it
wasno’t strictly true but a relationship had developed and I explained the
background to ‘It’s a Knock ‘out’. We talked until about a quarter past
seven when I had the phone call from Mrs. Ryder. We finished up by me
saying I was going to leave the district and my relationship would end and
he had no need to worry. He said he wouldno’t discuss it with Jane. I
didno’t tell you the truth straight away because I believed I was the last
person to see him alive. He seemed calm and took the whole thing as if it
wasno’t a problem.”
The prosecution’s point was why should he assume that he was the last
person who saw him alive when he dropped him at 7.15? He was the last
person at that stage in the evening, but why assume that the man he dropped
and walked away would not have been seen by anyone else, and why the
anxiety that he might have been the last person to see him?
Another interview followed on Tuesday 12th August. I do not propose to go
into it, because it is of no great significance. But there was a long
interview on Saturday 23rd August, and on that occasion the officers made a
contemporaneous record of what took place. I do not need to go through that
in any detail, but I should add in some of the matters which we think are
In answer to the question “When did you expect to see John again?” he said
“We planned that he would arrive at Avisford Park between 8.30 and 8.45
p.m. that evening, but he had said during our discussion at the house that
he may be a little late. He gave no reason for this. He was still perfectly
happy to attend the function.” “Where did you go next?” he was asked and he
answered “I drove home through the town. I did not stop anywhere en route.
I think I arrived home about 7.30 p.m.” Question: “What did you do next?”
Answer: “Had my bath and changed, and left for Avisford Park. I drove via
Torton Hill into Pearson Road, then Jarvis Road. I realised I had forgotten
the photograph. I retraced by route to my home, picked up the photograph
and went back along the same route, back to Avisford Park.” Then he was
questioned about the dog. It will be recalled that the earlier reference to
the photograph involved not a return to his home for the photograph but a
return to the office and when he gave his evidence, no satisfactory
explanation seems to have been given for that change of story. “What time
did you arrive at Avisford Park?” he was asked and he answered “I am not
certain, but I know it was before eight p.m. I went to reception and asked
one of the staff to contact Mr. Fynn.”
The officer at a later stage asked: “I understand from a witness that at
five p.m. you told this witness that John Lewis would be late for the
dinner. Why did you do this?” He answered “We had originally decided prior
to Monday, 4th August, 1980, that John would arrive between 8.15
and 8.30 p.m. on the assumption that Jane would reach Avisford Park between
eight and 8.15 p.m. On the Monday night, after our squash game, John and I
discussed the detailed timings for the following evening and we decided
that it would be impossible for Jane to arrive at Avisford Park much before
8.15 p.m. We therefore agreed that John would delay his time of arrival to
between 8.30 and 8.45 p.m. to ensure that he did not arrive before Jane. I
had two, possibly three telephone calls relating to the dinner
arrangements. One was with Tony Fynn.” He was asked “What did you tell him?
Did you tell Mr. Fynn that Jonathan Lewis would be late because he had
another business appointment or another, call to make?” and the answer was
“No.” That was not in fact Mr. Fynn’s evidence. “When I arrived at Avisford
Park” said Mr. Wallace, “on Tuesday evening, I told people that John would
be later than the revised schedule, as he had told me. I said that I had
been told this during the 4.15 telephone conversation to hide the fact that
I had seen him earlier that evening.”
So much for the interview., He went on to say that after spending the night
with his wife comforting Mrs. Lewis, they left the Lewis house. He went
home to let the dog out. What time was that?” asked the officer, and he
replied It was before eight o’clock. I had stopped at home to take the dog
for a walk, have a shave and a wash before driving down to the
Littlehampton office, I would guess about 7.30 a.m.”, a distinct difference
as it then stood between his timing and the timing given by the cleaner.
The medical evidence, which was uncontested, was of a blow to the deceased,
probably at the base of the nose forcing the cartilage back up and
fracturing the skull horizontally, a cut over the eye and areas of
bruising. There was no evidence of any kind that the applicant, Wallace,
ever suffered injury.
Mr. Silverman, the forensic scientist, examined the Austin Princess which
had been used by Mr. Wallace, and he found blood spots and splashes in the
boot. I will go into more detail with regard to his evidence
and the evidence on this aspect, when I turn to the grounds of appeal.
So far as the defence was concerned, Mr. Wallace gave evidence consistent
substantially with what he had later said to the police. He stressed that
there was no disagreement, no quarrel and no struggle that night. He
maintained that Mrs. Rider’s telephone call was between 7 and 7.15, that
after the call he took Lewis back to Arundel, and then returned to get
ready for the dinner. He explained, as he had told the police, how he had
left to get the medicine and how he had then driven around looking for
Lewis and come across the Volvo in the swimming pool car park.
So much then for an outline of the material facts of the case. Mr. Kennedy
has, with characteristic fairness and frankness, said that the summing up
was conducted, as indeed we would have expected with our joint knowledge of
the trial Judge, with impeccable fairness, and he makes no complaint of the
conduct of the trial itself. In fact to highlight perhaps the care and
fairness with which the trial was conducted, I can refer to one matter in
In the absence of the jury, as frequently occurs before the summing up
takes place, when counsel make submissions which may be relevant to the
summing up, Mr. Kennedy asked the learned Judge to give some assistance to
the jury on a possible defence of self-defence. It was, in our judgment, a
somewhat surprising application to make, because on his client’s own
evidence there was no disagreement between Wallace and Lewis that night;
“there was no quarrel between us that night”, said Wallace, “there was no
struggle between us that night”. There was, as I have indicated, no
catalogue of any injury upon Wallace himself.
Although Judges are naturally obliged to put before the jury any potential
defences which the jury should consider, even though counsel themselves do
not decide to run that defence, there must be evidence to justify asking
the jury to consider it. There was no evidence at all, as I have indicated,
of any situation which necessitated any direction
on self-defence. But the learned Judge gave a direction in order to make
sure that there could be no basis for complaint.
He said: “My attention was very properly drawn by Mr. Kennedy yesterday in
your absence to the necessity in an appropriate case for the judge to give
some assistance to the Jury on questions of possible self-defence. A man is
entitled to use force to defend himself from attack, but he must reasonably
believe that he will be assaulted before he can resort to force, and the
force that he uses must be reasonable and not excessive. Once the question
of self-defence arises, if it does, the Prosecution must disprove it. You
have to use your common sense about it. Even if it crossed your mind that
because there is no direct evidence as to how the assault occurred, if it
was this man, what possible evidence is there, what possibility is there of
it being self-defence? If it is, by all means act upon it. You see, you had
no assistance by evidence from the accused man. This is not one of those
cases where an accused person says: ‘I did hit him but it was done in
self-defence.’ So that does not apply.”
Mr. Kennedy, quite rightly because this is a very serious charge and it is
a serious charge based upon circumstantial evidence, has with meticulous
care left no stone unturned; some stones indeed have been polished
energetically. At the very outset of the notice of appeal it was alleged
that the learned Judge erred in law in that his direction upon the issue of
self-defence was inadequate, in particular as to the significance of the
reasonableness of the force used in the circumstances where the applicant
may not have been the aggressor. I hope a suitable, but a diffident
suggestion by this Court that that might not have been the best point,
persuaded, if he had not already been persuaded, Mr. Kennedy in fact not to
argue the point before us at all.
He took straight away as the most important point the question of
the blood, which was the subject matter of the evidence in relation to what
was found in the boot. His submission was this was very important evidence,
because it is the evidence which was provided to link the use of the car,
used undoubtedly by his client, when carrying the unconscious body to the
river, so that it could be tipped into the river. Therefore let me deal
with this part of the case in a little detail.
Mr. Silverman, to whom we have already made reference, the Forensic
Scientist, took some 20 samples from the boot of the Austin Princess. Areas
were ringed in wax pencil, markers put on, photographs taken and drawings
prepared. All areas tested were positive for human blood. 17 were tested.
The other three, Areas 7, 8 and 9, whilst they were blood, were not tested,
because they were in such close proximity to areas actually tested for
human blood that they were not thought desirable.
Mr. Silverman obtained blood samples from Wallace and from the deceased,
which he analysed. Both men were “0” group – that is using the “ABO”
system, and “0” group is very common: 46 per cent of the population. Mr.
Silverman also used what is known as the “M” system. Everyone apparently
has group “M”, but the deceased was “M” positive, whereas Mr. Wallace was
“M” negative. He also employed what is known as the “GM” system. In that
the deceased and the applicant were both minus one, minus two, plus ten.
The final method which he used was the “AK” system, and in that system the
deceased was a “2 – 1” man, whereas the applicant was a “1” man, which is
So far as the areas were concerned, there was an area “B1”, which gave
reactions under the “GM” grouping for minus 1, minus 2, plus 10, which is
the same as the blood of both the deceased and Wallace. It could also have
been the blood of 49.2 per cent of the population, and therefore is very
Then there was area “B7”, many small head on blood spots ranging from the
size of a pin head to a small pea. Grouping reactions from “O” and
‘M” positive, that is consistent with Lewis but excluding Wallace.
Then there was area “B14”, a fairly heavy downward-draining single blood
stain with well defined boundaries. Human blood – “M” positive, that is the
same as the deceased but not the same as Wallace. It is very common, 78.5
per cent of the population.
Then there was area “B17”, a fairly light dirty human blood stain in the
spare wheel well. It was “M” positive, consistent with the deceased, but
again a large proportion of the population, as with B14.
Area “B10” came in for a lot of consideration. This was a heavy, grubby
area of human blood stain. It was not possible to group it in the first two
systems which Mr. Silverman employed, that is the “ABO” and “M” systems.
But he did obtain a result from the “AK” system, which indicated that it
was not the type of blood that is “1”, that is the blood of Wallace, but
could be either blood type “2” or “2-1”, and “2-1” was the appropriate
grouping for the deceased, whereas “2” would exclude him. The area did not
show any signs of being washed in under the petrol pipe cover, a big black
cover. Somehow the blood had got in so that it was not only under the
cover, but there was a part of it in the electrical wiring loom cover. It
was a possibility that the findings for this area were consistent with the
stain having been there before the petrol pipe cover was put on, or even
before the wiring loom was put in.
Putting it broadly, save really for area 10, many areas from which Mr.
Silverman got results, whilst not compatible with Wallace, were compatible
with the deceased and a significant percentage of the population.
Much concentration was focussed on the “AK.” test. The reaction which Mr.
Silverman got, he said, would be the “2” or “2-1”. It could not be “1”, and
this was not disputed. He got a result which gave no reaction for element
1. So he ruled it out and that therefore ruled out the blood of Wallace.
There was a sufficient presence of element “2”, and Mr. Silverman
said that it was either “2” or “2-1”. He did not get on his picture an
intensity recognisable as “2-1”. All he got was a ‘2’ from which he said it
could be a “2” or a “2-1”. He could not say whether it was more likely to
be a “2” or “2-1”. But he accepted that if it was proved that it was “2”,
it could not be the deceased’s blood.
The occurrence within the “AK” system of group 2 was 2 per cent of the
population. The occurrence of 2-1, which was Lewis’s group, was 8.56 per
cent of the population, and that meant that group 2 would occur many more
times, up to 50 times more frequently than group 2. Thus group 2 was quite
rare. Therefore on the test it seemed more likely to him, bearing in mind
this greater probability, that area 10 had been’ a “2-1” rather than “2”,
before fading took place.
I think it is right for us to read those parts of the transcript which
relate to the Judge’s summing up on the blood. On the first day he said:
“The Prosecution’s case is that on the evidence as a whole you would be
driven to the conclusion that at some time Mr. Lewis’s body was put in the
boot of that car. That led to Mr. Hollis, just as it leads me, to deal
shortly with the question of the blood marks, the blood spots in the boot
of this car. Firstly, says Mr. Hollis, it is undisputed that blood spots
were found, and you yourselves, members of the jury, have gone out into the
car park behind the court and looked inside that boot and you have seen
those arrow marks indicating where the scientists removed material which
was said to be blood. The Prosecution do not suggest that the evidence of
blood is conclusive. It cannot possibly be. It is just one of a series of
pieces of evidence. It is not possible to prove that those blood marks
definitely belong to that man whose specimen of blood has been taken. What
blood tests and blood examinations can do is to say it is consistent with
‘I find in the spots in the car the same characteristics as I find in the
specimen, the control specimen taken from him.’
“Now, at one stage in this case the Defence were concerned, properly
concerned, to challenge the extent of Mr. Silverman’s evidence, which was
to the effect that all the blood in a sense, broadly speaking, might
include Jonathan Lewis and particularly Area 10. Area 10 underneath and
round the back of that cover over the petrol pipe was, and I hope I am
accurate in summarising the effect of the evidence at the end of it all,
originally said by Mr. Silverman to be consistent with the blood from the
control from the dead body. We know that there was a highly critical and
very interesting investigation as to the characteristics of what is called
the 2(1) and the 2. If that blood Area 10 had been 2, Mr. Silverman said
that would exclude it from being Mr. Lewis the dead man’s blood. But at the
end of it all, agreeing with Mr. Kennedy that if you looked at the
photographs and these scientists did all their weird tests and mumbo jumbo
and whatever, that at the end of it all you could see that the only visible
trace was 2. Ah, said the Defence, if it is 2, then that excludes it being
Lewis’s blood. ‘Yes’, said Mr. Silverman, ‘if it is 2, but the enzymes
fade. I came to the conclusion that there had been both indications of 2(1)
and (2), and if the indications of 2(1) have faded, you cannot come to a
conclusion on something that is not there.'”
Mr. Kennedy criticises, and rightly criticises, the last few lines that I
have read. If the learned Judge, in referring to Mr. Silverman had said “I
came to the conclusion that there might have been both 2(1) and (2)”, he
could not have been criticised, because the witness’s evidence was that the
enzymes faded and if he had been able to see the slide before the fading
had taken place, then he would have accepted that there would have been
signs either of a 2 or 2-1.
Reading on: “As Mr. Kennedy rightly points out today, the evidence called
about sources of blood from elsewhere is not to assert or to prove anything
at all. It is simply to underline and reiterate the Defence
suggestion that all that the Prosecution can say about the blood is that it
fits, it is consistent with. And it fits and is consistent with, if you
take the ultimate real key grouping, say the Prosecution, not only with the
deceased but with a very small minority of the population, 1.6.”
Again Mr. Kennedy criticises, and in our judgment rightly criticises, this
figure, which amounts really to 1.6 per cent. It is the appropriate figure,
if you consider the percentage of the population, which would have shown
all the characteristics to which I have referred in samples 1, 7, 14 and
17, and, most important of all, area 10. This was putting the matter too
high, having regard to the evidence of that scientist.
The learned Judge refers again to blood a little further on in a shorter
passage: “I reminded you yesterday about his comments on the blood. We all
know now, I think, how far the blood can be used. I have indicated to you
that it is not possible to say it is definitely the deceased man’s blood.
All that it is possible to say is it could be and it is of a particular
type in one area limited to a very small proportion of the population,
which rules out the likelihood of it being open to a number of other
This understandably gave Mr. Kennedy concern, and very properly, with the
initiative which we would expect him to show, he rose at the conclusion of
the summing up and asked to be allowed to make a comment, to which the
Judge courteously agreed. What Mr. Kennedy did, and did most efficiently,
as again we would expect, was to write out, so there should be no risk of
the Judge getting it wrong, what was a complex situation. I have avoided
going into the scientific process of carrying out these tests, using
electrical computers and all the rest. He wished to avoid the risk of the
Judge not putting over, not the prosecution case because the Judge had
overstated that, the defence case, and therefore he handed in to the Judge
on a sheet of paper in manuscript what he wanted the Judge to say and to
say at the conclusion
of the summing up. It is common knowledge that inevitably what the jury
hear at the end of the summing up is that which they are most likely to
retain, particularly in a summing up that is spread over two days.
The learned Judge courteously followed substantially-exactly what Mr.
Kennedy wished with one possible exception. What he said was this: “Members
of the jury, I think I can read Mr. Kennedy’s suggestion. This is the way
that I do it. If I was not dealing with the Defence case, he had a duty to
remind me, which he has done, on this question of blood. This is how Mr.
Kennedy felt that I should have said was the Defence case,” –now the
learned Judge quotes from Mr. Kennedy – “o’the highest it could be put
against the Defence was this: firstly, four areas could be the deceased’s
blood, and a wide percentage of the population’. “Those are areas 1, 7, 14
and 17, to which I have referred. Then the Judge goes on to say, “Now that
is obvious, you see, because some of those areas are not limited to the AK2
or 2(1). Some of the blood could be a wide area of the population.” It is
only 18 per cent of the population which would show the combined
characteristics which were discovered in areas 1, 7, 14 and 17. The learned
Judge twice said a wide percentage of the populations
Then he goes on focussing upon area 10: “Secondly, as regards that one area
10 which might be the deceased’s, the effect of Mr. Silverman’s evidence
ought to be summarised in this fashion”, and again he quotes Mr. Kennedy,
“‘that the test on area 10 now looks like a faded AK2 reaction, and if that
is what it was, it could not be Lewis’.” The Judge continued, “I thought I
had said that yesterday, but Mr. Kennedy may be correct and I had not. But
because there may have been visible a second line consistent with a 2(1)
reaction which could be Lewis before the enzyme activity faded, therefore I
cannot say more about what is not there’. So the Defence say the proper way
to leave it is this, that it cannot be said whether the –
yes, I think really the effect of what Mr. Kennedy thinks I ought to say is
that the balance of Mr. Silverman’s answer is it now looks inconsistent
with Lewis’s. In other words, it now looks like 2.” That was in fact
putting the defence case at its very highest.
Then the Judge goes on adding emphasis to it: “That I thought I told you
yesterday, but it is certainly true.” Then he goes on to deal with another
matter. I read on: “What we are really concerned with is what you find
about not so much the proof of the blood or whose it is but the existence
of it. If the existence of area 10 under the thing showed some enzyme
activity, but fading so far as 2(1) is concerned” – this is the part to
which the criticism relates – “and you can only keep an enzyme activity, as
Mr. Bradbrook agreed, for a matter of some months, what the Prosecution
invite you to say is that any blood put there in 1979, June 1979, really is
neither here nor there because you have got one area which shows some
enzyme activity.” I interpose again, the reference to June 1979 is the date
of manufacture of the car, and some Leyland workers were called, one or
other of whom had cut his finger in the course of the manufacture of the
car. “Mr. Kennedy is very properly anxious that I should not have misled
you into ruling out the possibility that it was not a 2(1) but was, as the
indication showed, a 2, and if it was a 2, then it rules out Mr. Lewis.”
As we have indicated, the only criticism made is the reference to Mr.
Bradbrook, who was the expert called by the defence. Mr. Bradbrook in
cross-examination did not go as far as the learned Judge quoted, but he did
go some distance. He was asked by Mr. Hollis in cross-examination, quoting
him the authority which he, Mr. Bradbrook, had caused to be used for the
cross-examination of prosecution witnesses, “Do you agree with that? A.
Yes.” The next question was, “After 3 to 4 weeks, the effects of loss of
activity are seen and as time progresses this loss of activity becomes more
and more apparent until at three months some samples will retain sufficient
activity but many will not have sufficient residual activity to make typing
possible.’ Do you agree with that? A. I agree with that.”
Then over the page: “I am not asking you about a blood stain three months
old; I am asking you about a blood stain that may be 15 months old. Is
there really any likelihood at all of any residual enzyme activity – AK; I
am sticking to that? A. There is no scientific means, to my knowledge, of
aging a stain and it is possible that after that period of time AK activity
would be present and in this sample it was not possible to group completely
within the AK system, and this could well be the reason why – that it is an
old stain.” So the Judge went too far, but the learned Judge said
immediately following what I have quoted, “I think that is a better way of
putting it, Mr. Kennedy”, to which Mr. Kennedy said “Thank you very much,’
my Lord, yes….”.
No one in this Court, knowing the Judge and knowing Mr. Kennedy, would
think for one moment that diffidence or anxiety at ruffling the Judge would
have caused Mr. Kennedy not to have said “Well, thank you very much for
what you have done. Perhaps I could make this comment in regard to Mr.
Bradbrook, he did not go quite that far”. Mr. Kennedy did not. He is not,
in our judgment, in any way to be criticised. Mr. Kennedy frankly accepts
that, having heard what the learned Judge said, he thought that the learned
Judge, had achieved the right balance. What Mr. Kennedy had achieved was
that the defence case on the blood, apart from this reference to Mr.
Bradbrook, had been put and put right at the end of the summing up.
When leading counsel with the expertise of Mr. Kennedy, having heard the
summing up in full, reaches the conclusion that the balance was right and
there was no basis for complaint, it is an uphill task to ask this Court to
try and put itself in the situation of the jury and reach a counter
conclusion. It is totally unrealistic to invite our attention to
documents which the jury did not have, which is the transcript of evidence,
and approach the exercise as an interpretation exercise which would be
conducted with the aid of a forensic microscope in another Division. We are
quite satisfied, having listened to everything Mr. Kennedy so competently
urged before us, that the Judge had left the position on the blood
favourably to the defence and there is no basis for any complaint. Mr.
Kennedy’s first thoughts, which was to thank the Judge for what he did,
were the correct ones, and his second thoughts are not justified.
An additional complaint is made in regard to the blood, and that is to be
found in 5(ii): “The learned Judge failed to remind the jury that Mr.
Silverman’s evidence was that Area 10 was consistent with the blood having
been there before the petrol pipe cover and the wire loom were fitted
during manufacture and that none of the areas of blood ‘had been wiped or
washed under such fittings’.”
There are two comments to make on this. Mr. Kennedy did not see fit to put
that on his piece of paper – he is not to be criticised in regard to that,
because he was focussing upon the scientific evidence – but the learned
Judge, with the courtesy with which one associates him, said right at the
very end “Anything else Mr. Kennedy?” to which came the equally courteous
reply “Thank you, no, my Lord.” If Mr. Kennedy had really looked upon that
as a vitally important matter, we would have expected some reaction, We are
not surprised that he did not react, for this reason that as the learned
Judge pointed out, the jury had been to see and look at the car body, they
had seen where the wire and the loom were, they had seen where the marks of
the blood had been, they had seen the cover on the petrol pipe.
There are occasions when this Court considers that counsel treat a jury as
a computer, which is expected to absorb without assistance a mass of
events, documents, and highly complex and detailed material; and on the
hand, perhaps in the next breath, as being totally incapable of retaining
any points of any importance unless they are reminded not only by defending
counsel, as indeed they would have been by Mr. Kennedy in this case, but
reminded yet again by the learned Judge when he sums up. This Court has
often said that no Judge should assume that the jury are lacking in memory
or understanding. By the 14th day, if that is the right date, of this case,
the jury could be expected to be familiar with the important details.
Judges are not only entitled, but should assume that jurors have a grasp of
the details of a case, although when it comes to scientific evidence they
may need some special help. What they want in a summing up is to be
reminded not all the details but help in analysing the evidence, so that
they can focus on the issues that really matter. We therefore consider that
the complaint made with regard to the blood fails.
We now turn to the rest of the grounds of appeal which are extensive, but
which can be summarised at the outset in this way, that there were a number
of points individually which Mr. Kennedy was prepared to accept as small
points in the defendant’s favour which the learned Judge did not refer to
and taking it cumulatively, this resulted in a lack of overall balance in
the summing up.
May we make this clear. It was not Mr. Kennedy’s submission that the
learned Judge had put in all the points for the prosecution and left out a
number of points for the defence. Mr. Kennedy accepted, when we
specifically put it to him, that there were at least half a dozen points
which would certainly appeal to the experienced advocate, and which one
would expect to have been made by the prosecution in favour of the
prosecution case, which the Judge never mentioned at all. I give but a few
examples. The Judge made no reference to the strange moody nature of the
applicant spoken to by Mrs. Lewis when his affectionate advances made
towards her were not reciprocated; they were worse than moody, they were
black moods, and therefore there was
a fairly high degree of frustration. No mention was made of her evidence
that when he came back at 10 o’clock or thereabouts after this visit, he
was sweating profusely. No mention was made that witnesses were told by the
applicant that Lewis was going to be late because he had an appointment,
the applicant having himself accepted that Lewis made no such statement. No
reference was made of the fact that the drinking, if it took place,
involved glasses for the gin and tonic and ultimately an empty bottle of
gin and tonic. Mrs. Wallace’s evidence was that her husband, sharing the
characteristic of no doubt many husbands, was not inclined to clear away,
and yet when she got back there was no sign of a gin bottle or any glasses,
and yet, on the applicant’s account, he had a pretty difficult schedule,
and was late on his original planning. There were other matters of a like
nature with which I shall not burden this judgment.
I turn now to the complaints which are made. The first complaint is that
there was no reference to the evidence of a; police diver who had found
score marks. The police diver was not called as an expert on score marks.
It was not an essential part of the prosecution case that this particular
mark was made by the applicant. There was additional evidence to show that
he probably entered the water in this area, and the fact that the diver’s
evidence was contrary to the proposition that he made this mark seems to us
to be a very minor matter, which understandably the Judge would leave out.
The next matter perhaps characterises this type of submission. It is
complained that the cross-examination of the senior officer who took the
statements was not referred to in relation to that officer’s evidence about
the applicant’s demeanour. The interesting thing is the evidence was not
all one way. At an early stage apparently the officer said that he looked
shifty or worried, or gave the impression that he was not telling the
truth. When he was asked about the blood, he gave evidence to the effect
that this did not seem to cause him any particular concern. If this was a
would have been mentioned by Mr. Kennedy. The suggestion that the Judge
should lengthen the summing up by making all those points seems to us to be
wholly unjustified. This Court has said recently and repeatedly that
summings up are getting longer and longer and that in the interests of the
administration of justice this should stop. It is not only tedious to a
jury who have listened with care to the final speeches of the prosecution
and the defence, but to have it repeated by the Judge runs the risk of
muddling them and it exacerbates the delays of bringing appeals which this
Court experiences. This Court has said that it would have scant sympathy
with criticisms which do no more than complain that the Judge did not
repeat the point that defending counsel made a few minutes before the
learned Judge started summing up, and this particular complaint, is a
personification of that sort of point. It applies to the next point as
well, that Police Superintendent Taylor and other witnesses referred to the
cool, calm and calculated appearance of the applicant at dinner, but Mrs.
Lewis did not, and as I have indicated, her evidence was not referred to.
The next point is that there was evidence of Messrs. Vaughan and Priest in
support of Miss Metcalfe that the deceased had been seen alive and well at
a time which could not possibly fit into the prosecution’s case. This was a
very important point and was dealt with, as Mr. Kennedy accepts, very fully
by the learned Judge.
The position was this. Miss Metcalfe, who ran a restaurant called the
Golden Goose, gave evidence that she reckoned that she had seen the
deceased some time not earlier than ten to seven but not later than 8
o’clock in her restaurant. The learned Judge dealt with her evidence in
full. He not only dealt with it in full, but he said:
“This is at the heart really, you may think, of the opening for the
Defence. If Miss Amanda Metealfe is right that, let us take it from about
twenty past seven, if you like, or, more favourable to the Defence, on the
Prosecution case even a bit earlier than that, or, above all, after
twenty five past seven, if she is right then this deceased man was still
alive when the Prosecution say he was knocked unconscious he was still
alive when the Prosecution say he was incapable of standing up. He was in
the bar of the Golden Goose when the Prosecution say he was stuffed in the
boot of the car, or may have been. It is absolutely vital, members of the
jury, that you should concentrate upon this because – and I would go so far
as to advise you that you must rule out the accuracy of Miss Metcalfe’s
evidence before you can reach any safe conclusion that this man knocked
this deceased, as the Prosecution say he did, stuffed him in the boot and
dumped him in the river. This is a crystal clear example of the burden of
proof requiring the removal of any area of doubt where it is in a vital
area. The Crown say that, without any doubt whatsoever, this is another
example where the other evidence relied on by the Prosecution is so
overwhelming, so devastating against the defendant that you would be bound
to rule out and disregard Miss Metcalfe’s evidence on the basis that there
is something wrong about it.
“Mr. Kennedy is absolutely right. He says no half measures about this. You
have got to face up to it fair and square and say: ‘Does the other evidence
so convince us that we are driven to the conclusion that we have got to put
Miss Metcalfe’s evidence on one side and we have got to say she must be
wrong, she must have made a mistake?’ As long as it is there, even on the
alternative version, as Mr. Kennedy put it, it must create a substantial
doubt. You will be faced when you come to reach your consideration of the
evidence as a whole: ‘Does the rest of the evidence drive us to the
conclusion that the Prosecution have made us sure?'” Nothing could have
been clearer or fairer, and Mr. Kennedy accepts it.
But his complaint is that there was not a sufficient reference to two other
gentlemen who were in the restaurant. One was Vince., the temporary barman.
In regard to that the learned Judge said: “Then the effect of the
cross-examination was to try and pin down, with the assistance later of
course of the two young men, Vince, the temporary barman earning a few
pounds in addition to his factory wages, starting for the first night on
Tuesday, 5th August, and Mr. Priest the other fellow, agreeing.” That was a
reference not to Vince recognising the deceased, but that being the night
when Vince started in the restaurant and it was part of the confirmation
that Amanda relied upon for recollecting that day, and the learned Judge
brings in Priest in the same way. We have been through the evidence of
Priest. Again, this judgment is long enough, if not excessively long,
without adding to it. But there was material in Priest’s evidence which
could have been used to show that his evidence was not in the same
category, of the same reliability, of the same strength as that of Vince.
We therefore see nothing of any substance in this point.
Then there is reference to the fact that the learned Judge did not draw
attention, except in one respect and then too inaccurately, that the
deceased had been behaving unusually or oddly or strangely. This was
initially a murder trial which, on the Judge’s direction, became a
manslaughter trial. It was a case in which the defence did not suggest that
there was any other person or persons or circumstances to be looked at
which might relate to the deceased being done to death. But they thought it
was important to point out that on the day before the deceased had been
seen in a car with a woman. What that was meant to add up to it is
difficult really to contemplate, but the learned Judge did refer to it.
Instead of saying “woman” he said “man”, and complaint is made about that.
The point was made that he had been frequently parking his car at the
Arundel Swimming Pool and complaint is made that that point was not drawn
to the attention of the jury. That point, if it was a point of any
substance, was made by Mr. Kennedy in his final address.
Every sound advocate realises that the way to win a case is to
concentrate the jury not on 210 points but on 3 or 4 or 5 points. Once you
begin to get away from that, you detract from the strength of your good
points by diluting them with references to other peripheral ones. Avoiding
the use of his own car, or using somebody else’s car are points which we
put into the same category.
Then there is complaint about the medical evidence. The learned Judge dealt
with the medical evidence in this way:
“It may be convenient now just to remind you shortly of some of the
comments which Mr. Kennedy made about the medical evidence. Mr. Kennedy
generally said that the Prosecution were putting too much. Summarising what
the doctor said, he said: O’The blow’ – that one up the nose –’would have
caused concussion, be possibly unconscious for a period of time, but I
cannot say with any certainty. He would have bled, certainly from the cut
on the forehead.’ Now then, this is the cross-examination. Answer to Mr.
Kennedy: ‘I cannot absolutely conclude that the cut could not have been
caused after death.’ He thought it was caused because there was bruising
round it, but he could not be absolutely certain about it. ‘There was no
other cut or abrasion which would bleed. I cannot say that all the injuries
were dealt at the same time. I would think within an hour or so of each
other.’ Some of the injuries, everybody agrees, could be caused by his
immersion in water, coming in contact with the ligature round the neck,
undoubtedly, when they pulled the dead body out by the rope. Then he would
not agree with Mr. Kennedy. He said: ‘If he had fallen on the face, I would
expect some surface injury to the nose’, do you remember, because the
Prosecution case is blow upwards, like that? ‘I would not expect any sign
on the hand of the person delivering the blow, not if it was done with what
is called the heel. I would expect to find bruising in the area of the nose
if there had been a direct punch straight on. I think this is extremely
unlikely as the cause of the fracture across here.'”
Complaint essentially is made that the learned Judge did not repeat a piece
of evidence by the doctor that the deceased could have been conscious on
entering the water, again a point no doubt which was made by the defence,
if they thought it was of any substance.
The learned Judge had pointed out to the jury the defence submissions in
regard to the medical evidence, the suggestion that he might have been
groggy following the blow, in fact unsteady, indicating that he might have
fallen in the water himself. We think that this matter was adequately dealt
with by the learned Judge.
The learned Judge pointed out that the sightings of the cars were
contradictory and that perhaps the jury might not derive much from it. That
is not criticised. But what is criticised is that the learned Judge did
rely on certain matters of timing. One point which he made related to the
arrival at dinner. He said: “…. on the original plan by the defendant to
get there well in advance to see that the dinner was organised, to get
there well before Jane, that he was about half an hour later than he had
originally planned to be? Why, say the Prosecution? Was it not because he
had already knocked out this man? Was it not because he was then already
concerned with the disposal of what he may have thought was a dead body?”
In our judgment that was a perfectly fair comment for the learned Judge to
make. He had set out in detail the applicant’s explanation as to why he
arrived late and this comment was a justifiable one. The learned Judge
dealt with Mrs. Rider’s evidence in detail, as to why the latter was sure
that the conversation could not have been later than ten to eight. The
learned Judge was perfectly entitled to do so. She was a witness who was
cross-examined about it and she fixed her timing by reference to a clock
which she said she saw.
Next it is alleged that the learned Judge did not give a full reference to
the accused’s lying about the return to the office for the photograph.
I have, in the course of this case, asked Mr. Kennedy for assistance on
this point and Mr. Kennedy has done his best, and, with the best will in
the world, assistance has not yet been forthcoming. Wallace told the police
initially that he went back to the office to get the photograph. This was
no doubt to fill in the time in case he had been seen. Later on, when he
told the police that what he said was the truth, he said that he went back
to the house to get the photograph. He gave no such evidence which we can
find at the trial. Certainly he gave none in chief and it is an odd
situation, because it adds another quarter of an hour at least to what was,
as I have indicated, likely to/a tight schedule, particularly if Mrs.
Rider’s evidence is right. We put this into the same category as the other
small items which are adequately covered, if they are good points, by
counsel making them in his final speech.
We come to two final matters. The learned Judge erred in referring to the
evidence in regard to the stomach trouble, as being stomach trouble which
the applicant was experiencing not only on that Tuesday but later in the
week. The evidence of the applicant, and probably of Mrs. Lewis too, was
that the applicant had suffered stomach trouble earlier in the week. No
doubt that point was covered by counsel in his closing speech, but he is
right to say that it was an error. In our judgment it was an error of no
consequence, as was the last error, when the learned Judge, referring to
the time of day, the unusually early hour of 5.55 or 6 o’clock, when the
applicant arrived at his office and began to clean the car, and said that
“Mr. Barnes heard the sound of a car driving fast into the yard”. He ought
to have said “he heard the sound of a car driving into the yard”.
That, along with the other points to which we have referred, really are the
sort of points that this Court has referred to as “nit picking” – taking a
judgment, finding that a particular point is not covered, and saying “This
point in favour of the defence ought to have gone in, if the jury had
only been given that point, and another 50 odd points, they would have
reached another verdict, or might have reached another verdict or that the
verdict reached is therefore unsafe and unsatisfactory.” The Court is bound
to say that that is a wholly unreal approach to what a summing up should be
and the assistance that a jury should expect to derive from a summing up.
The shorter a Judge can keep the summing up the better he can analyse the
evidence on the crucial matters, which is his essential function. The
shorter he can keep the summing up the better are the prospects that he can
cause the jury to focus on the real problems, the real questions which they
have to decide, and better will be the prospect that the light verdict is
reached. If the learned Judge had adopted the course that Mr. Kennedy
suggests, bringing with it, as Mr. Kennedy fairly also agrees, all the
other points for the prosecution which he should have brought in, this
summing up would probably have been doubled in length and the jury, so far
from being assisted, it would have the very reverse effect.
We therefore refuse the application for leave to appeal against conviction.
We can now turn to the sentence. What is to be borne in mind in this case
is that there was no material before the learned Judge in regard to the
assault which had undoubtedly taken place, other than the injuries
themselves, and the injuries were all one sided, in the sense that it was
only the deceased who had been injured, and seriously injured. There was no
material for him to conclude that there was any struggle at all: ergo, the
irrelevance of any suggestion of self-defence. There was no material upon
which he could say that in a moment of temper, because of some provocative
remark, the applicant had struck out, for the very simple reason that the
applicant had chosen to lie, and had chosen to say that there was no fight
of any kind, thereby hoping that his prospects of an acquittal would be
advanced. In that situation he is not in a position to say to the Court,
draw the more charitable inference that is available, not from the
evidence, but from your imagination, as to what took place.”
The learned Judge, when sentencing, said, “… there is no evidence that you
deliberately planned an attack upon this man and, in withdrawing the charge
of murder, that there was no evidence that you intended to put a living but
unconscious or concussed body into the water.” If there had been such
evidence, he would not have withdrawn the charge of murder. But that
statement is not equivalent to saying “You, on reasonable grounds, after
some mature thought, reached the conclusion, which was understandable in
the circumstances, that you had killed the man”. On the contrary there was
no such material, and no such material because the applicant had decided
not to provide that material.
The Judge was fully entitled to look upon this case as one of death brought
about by callous recklessness: a man rendered unconscious by a very severe
blow which must have been wholly intentional, rendered unconscious in
circumstances that gave no indication of any struggle at all, a blow which
might well have been initially unprovoked, a blow which the deceased had no
opportunity to defend himself. Thereafter, with knowledge that it was only
one blow and therefore unlikely to be of necessity fatal, as opposed to a
blow with a pickaxe or something of that kind, instead of calling for help
to see whether anything could be done, instead of making attempts to
resuscitate him, he took the unconscious body and without more ado
shovelled it into the river. He then covered all possible tracks by silence
on everything, silence that involved a mounting anxiety in the woman for
whom he professed this strong affection. In such circumstances the learned
Judge was right in our view to express himself in this way: “In my
judgment, one has got to recognize that there has never been any attempt to
explain, which in the light of the jury’s verdict would be expected of any
man, that you had in the heat of the moment felled a man. The very notion
of driving that
body and tipping him into the river revolts the human conscience.”
We cannot accept that there was any error in principle in regard to the
sentence which was imposed, or that the sentence was in any respect
excessive. Accordingly the application for leave to appeal against sentence
is also refused.
Please note that victims of abuse may be triggered by reading this information. The Sanctuary for the Abused [A] has advice on how to prevent triggers. National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups. Other useful sites are One in Four [C] and Havoca [D]. Useful post on Triggers [E] from SurvivorsJustice [F] blog. Jim Hoppers pages on Mindfulness [G] and Meditation [H] may be useful.
 John Colin Wallace Second Appeal 9 October 1996 Court of Appeal https://cathyfox.wordpress.com/2015/09/09/john-colin-wallace-second-appeal-9-october-1996-court-of-appeal/
 2015 Cathy Fox Blog Timeline of Court Appeals and Documentation https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/
[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html
[E] SurvivorsJustice Triggers post http://survivorsjustice.com/2014/02/26/triggers-what-are-they-and-how-do-we-work-through-them/
This is all written in good faith but if there is anything that needs to be corrected please email email@example.com
cathyfox the truth will out, the truth will shout, the truth will set us free