John Colin Wallace Second Appeal 9 October 1996 Court of Appeal

This is the second and successful appeal by Colin Wallace against his conviction for manslaughter which was quashed, although he had already served out his sentence. I do not know what happened to the applications by the Crown for retrial and by the defendant for costs which was adjourned, although I do not think he was retried.

Unfortunately Colin still has not been allowed to tell his full story as to what happened at Kincora boys home due to worries over the Official Secrets Act and being prosecuted. It is uncertain if he will give evidence to the HIA in Northern Ireland or the PSNI Inquiry or the England and Wales IICSA Goddard Inquiry.

Colins first unsuccessful appeal is available here – John Colin Wallace, Court of Appeal 1982 [1]

Cathy Fox Blog Index and Timeline of Court Appeals and Documentation [2]

Redaction

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 [2]

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.

This appeal is in fact unredacted.

[1996] EWCA Crim J1009-1

No. 95/1233/S1

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts Of Justice

The Strand

London WC2

Wednesday 9 October 1996
Before:

The Lord Chief Justice of England

(lord Bingham of Cornhill)

Mr Justice Owen

and

Mr Justice Connell

Reference By The Home Secretary Under Section 17(1)a Criminal Appeal Act
1968

Regina
v.

John Colin Wallace

Computer Aided Transcription by Smith Bernal, 180 Fleet Street, London EC4
Telephone 0171–831 3183 (Official Shorthand Writers to the Court)

MR MICHAEL MANSFIELD QC and MR HENRY BLAXLAND appeared on behalf of THE
APPELLANT

MISS ANN CURNOW QC and MR MARK DENNIS appeared on behalf of THE CROWN

JUDGMENT

(As Approved by the Court )

Wednesday 9 October 1996

THE LORD CHIEF JUSTICE : In March 1981, Mr Wallace stood trial before
Kilner Brown J and a jury in the Crown Court at Lewes on an indictment
charging him with the murder of Jonathan Lewis. On 20 March, he was
acquitted of murder on the direction of the judge but was convicted of
manslaughter and sentenced to 10 years’ imprisonment. He applied for leave
to appeal against conviction and sentence but both were refused by the
Court of Appeal Criminal Division on 12 February 1982. He served his
sentence and was released in 1986.

The Home Secretary has referred the whole case to this Court under section
17(1)(a) of the Criminal Appeal Act 1968. The Court must accordingly treat
the case for all purposes as an appeal by Mr Wallace. By section 2(1) of
that Act as amended we must allow the appeal against conviction if we think
that the conviction is unsafe and must in any other case dismiss the appeal.

I

It is convenient to summarise the facts which were not, as we understand,
in dispute at the hearing of this case.

In 1980, the appellant was employed by the Arun District Council as an
information and liaison officer. He was a married man and lived at Dalloway
Road in Arundel. Mrs Jane Lewis, the wife of an antique dealer named
Jonathan Lewis (“the deceased”), worked as his assistant. Over a period of
months the appellant and Mrs Lewis worked closely together in connection
with a competition, “It’s a Knockout”, hosted by the Council between 20 and
23 July 1980. As a result of the time they spent working and travelling
together, a relationship grew up between the appellant and Mrs Lewis which
was amorous but not adulterous.

In order to thank Mrs Lewis for the work that she had done in mounting the
competition, the appellant arranged a dinner party to be held on 5 August
1980 at the Avisford Park Hotel, just outside Arundel. The party was to be
a surprise for Mrs Lewis, the intention being that she should arrive and
then learn that the party was being held. A number of others involved in
the competition were to attend the party also.

It seems likely that during the afternoon of 5 August 1980 there was a
telephone conversation between the deceased and the appellant, when they
agreed to meet that evening at 6.30pm, before the party which they were
both to attend. At about 5pm the appellant telephoned the hotel to tell
them that one of the guests, the deceased, would arrive late.

At about 6.30pm the appellant and the deceased met at the swimming pool car
park off The Causeway in Arundel. At the trial neighbours of the deceased
gave evidence that they had seen him leaving his home in Arundel at about
6.15 to 6.25 on that day. Another witness gave evidence that she saw the
deceased’s Volvo near Queen’s Bridge in Arundel at about 6.35 on that day,
heading towards the swimming pool car park which was only a short distance
away. The same witness also saw a white Austin Princess car going in the
same direction: for purposes of the competition, the appellant had been
given the use of a white Austin Princess, marked prominently with “It’s a
Knockout” insignia, and there seems to be no doubt that this car was his.

The deceased parked his Volvo in the swimming pool car park, and there for
some days it remained. There was evidence from neighbours living
immediately opposite the appellant’s house that his white Austin Princess
was seen in the driveway of his house at 6.40pm and again at 7.20pm on that
evening.

At a time said by the appellant to be about 7.15pm and by a Mrs Rider to be about 7.55pm, a telephone conversation took place between
the appellant at his home and Mrs Rider; she wished to speak to the
appellant’s wife, but Mrs Wallace was unavailable since she was playing
squash with Mrs Lewis at the time.

At about 8pm (later than intended) the appellant arrived at the Avisford
Park Hotel in his car,
having driven from his home, a journey of about 7 minutes. When Mrs Lewis
and the other guests arrived, the appellant said that the deceased would be
a bit late arriving for the party. Mrs Lewis went ahead and ordered a meal
for him. But the deceased did not arrive at the party. The appellant did
not tell Mrs Lewis that he had seen her husband that evening.

At about 10pm the appellant left the party. He returned at about 10.30pm.
When the party broke up the deceased had still not arrived. The appellant
and his wife spent the night at Mrs Lewis’ house. During the night Mrs
Lewis telephoned the police to report that her husband was missing, but the
appellant still made no reference to his meeting with the deceased before
the party had begun.

Early on the morning of Wednesday 6 August, the appellant cleaned out the
boot of his car, which was to be returned to its owners that day. He put
some of the contents of the boot in a rubbish container at his office.

On 7 August, the appellant and Mrs Lewis discussed whether they should
disclose their relationship to the police. They decided to do so. They
drove together into Littlehampton the following day, 8 August, in order to
make that disclosure, which they made. By that time, unknown to them, the
body of the deceased had been found floating in the River Arun. The keys
and watch of the deceased were found, some yards apart, on the towpath
beside the river, well upstream of where the body was retrieved, close to a
sluice-gate to which the only access for vehicles was via a short but
narrow, unmade track called Gasworks Lane.

On 10 August, the appellant was questioned by the police and made a written
statement. He told them that he had spoken to the deceased on the telephone
on the afternoon of 5 August 1980, but said that the last time he had met
him had been on the evening of the day before, 4 August, when they had
played squash together.

The appellant was then confronted with an entry in the diary of the
deceased relating to a meeting between the two of them at 6.30pm on 5
August. The appellant explained that entry by saying that they had
originally intended to meet to play squash on that evening, but that the
arrangement had been changed because of the surprise party for Mrs Lewis,
and that the meeting for squash had been
put back to the day before, 4 August. The appellant denied that he had met
the deceased on 5 August, and that his car had been parked near the
swimming pool car park on that date.

The appellant was pressed by the police to reveal the true facts, and
eventually made a statement which was recorded in these terms:

“John Lewis rang me at about 4.15 last Tuesday, 5 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
6.30pm. We went home in my car. He didn’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 wasn’t strictly true but a relationship had developed and I
explained the background to “It’s a Knockout”. We talked until about a
quarter past seven when I had the phone call from Mrs Rider. 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 wouldn’t discuss it with Jane.
I didn’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
wasn’t a problem. After that I took John back to Arundel and he got out by
the newsagents.”

The appellant was further questioned two days later, but gave substantially
the same account of the relevant events. This was in all essentials the
account which he gave at the trial.

II

On Friday 8 August 1980, within a few hours of its retrieval from the
river, Dr Iain West, a consultant forensic pathologist at St Thomas’s
Hospital, examined the body of the deceased. He noted the clothing worn by
the deceased, and that the zip fly of the jeans worn by the deceased was
undone. He noted also that the tip of the foreskin of the penis of the
deceased was visible and held by the elasticated waistband of the
underpants he was wearing. Among many signs of bruising and grazing Dr West
noted a three-quarter inch laceration with underlying swelling above the
right eyebrow of the deceased and bruising and swelling of both eyelids. On
internal examination he found bruising and
swelling on the under surface of the top and back of the left side of the
scalp. He also, much more significantly, found a horizontal fracture across
the front section of the base of the skull involving the roofs of both
orbits and the ethmoid plate (part of the skull overlying the nose). He
found small bruises with overlying slight subarachnoid haemorrhage at the
occipital poles.

On Tuesday 12 August he resumed his post mortem examination. On cutting
into the skin of the back he found a deep band of bruising extending from
the lowest vertebra of the neck across the back of the right shoulder with
some bruising extending to the left of the mid-line. On dissecting the
face, he confirmed visual evidence of bruising in the region of the left
jaw and around the left eye, and found a small bruise at the base of the
left nostril. He recorded that the cartilage of the nose was not broken,
but there were two areas of haemorrhage in the upper part of the cartilage.
Dissection of the right hand revealed bruising of the base of the first
knuckles of the right index, ring and middle fingers and of the first
knuckle of the right little finger.

Dr West’s opinion was that death had been due to drowning. He considered
that some of the head injuries had clearly been inflicted before death,
including the skull fracture. In a written report dated 23 September 1980
he said:

“The injury to the base of the skull could have been caused by an upward
blow directed against the base of the nose. The injury to the region in
front of the left ear could have been caused by a blow from a hard surface
and would be consistent with an injury produced by a kick. The laceration
on the right forehead has been accompanied by swelling and could have been
caused by a direct blow ….The band of bruising extending from the back of
the neck across the back of the right shoulder could have been caused by a
direct blow to this area”.

Professor Mant, Head of the Department of Forensic Medicine at Guy’s
Hospital and Professor of Forensic Medicine in the University of London,
was instructed to advise the appellant (although, in the event, he was not
called at the trial). He examined the body of the deceased on 22 August
1980 in the presence of Dr West, and had the benefit of detailed discussion
with Dr West. He confirmed Dr West’s findings of heavy bruising of the left
upper cheek, forehead and scalp above the
ear, laceration of the right forehead, bruising below the right nostril and
fractures of the thin plates of bone at the roof of the nose and above the
eyes. He agreed with Dr West that death had been due to drowning. He
regarded a number of injuries to the body of the deceased as having been
inflicted during life and as being consistent with a fight. He regarded the
most significant injury as the fracture of the skull, of which he wrote:

“A karate type chop has been delivered to the under part of the nose with
great force. The force has passed up through the nose and fractured the
thin bones of the base of the skull above the nose and eyes and locally
injuring the brain. I would expect this blow to cause immediate loss of
consciousness.”

His conclusion was:

“The deceased was engaged in a fracas during which he was rendered
unconscious, he then appears to have been dragged across rough ground and
has entered the water in which he drowned.”

Professor Mant wrote a further report for the appellant and his advisers
before the trial. This clarified certain points in his earlier report. In
this second report he expressed the opinion that the drowning took place
“within a relatively short time of the assault”. Professor Mant had seen
photographs of the point at which the body of the deceased was thought to
have entered the river, and observed:

“If Lewis was assaulted at about 6.30, in the area where his keys were
found, it is unlikely that his assailant could have deposited the body in
the river without having been observed at such a busy holiday period.”

III

At the trial the case against the appellant rested on four main pillars.
The first of these was motive. The Crown contended that the relationship
between the appellant and Mrs Lewis gave him a motive to injure the
deceased, particularly if (as the appellant suggested) the deceased had
challenged him concerning this relationship. This remains a pillar of the
Crown case.

The second pillar of the Crown case was the contention that the appellant
had the opportunity to injure and then cause the death by drowning of the
deceased. The Crown were unable to adduce much direct evidence to establish
the precise course of the appellant’s movements on the evening of 5 August
1980. But the Crown accepted his evidence that after meeting the deceased
at about 6.30pm, the appellant took him back to his house. There, it was
suggested, the appellant, perhaps on being challenged as to his
relationship with Mrs Lewis, assaulted the deceased and inflicted the major
injuries recorded by the pathologists. It was suggested that the appellant
at that stage either put the unconscious body of the deceased in his
garage, or perhaps in the boot of his car.

The Crown explained certain evidence to the effect that the conspicuous
white car of the appellant had been seen in various places in Arundel that
evening by suggesting that the appellant had been reconnoitring a suitable
place at which he could, later, deposit the body of the deceased in the
river. It was suggested that the appellant attended the dinner at the
Avisford Park Hotel at about 8pm, either leaving the unconscious body of
the deceased in his garage at home, or with it secreted in the boot of his
car. It was suggested that, when the appellant had left the dinner party at
10pm and been absent for approximately half an hour, he had at that stage
gone to deposit the body of the deceased in the river. The appellant’s
explanation that he had suffered abdominal pains and had returned home to
obtain medicine was dismissed by the Crown as untruthful.

The third pillar of the Crown case consisted of evidence of spots of blood
in the boot of the car used by the appellant. Forensic evidence was called
to suggest that these blood spots were consistent with the blood of the
deceased, and reliance was placed on this evidence as showing that the
deceased had, as already described, been secreted in the boot of the
appellant’s car.

The fourth pillar of the Crown case was reliance on the sustained course of
deception and  dishonesty adopted by the appellant from the moment when, on 5 August, he arrived at the dinner at the Avisford Park Hotel. The Crown relied on this
conduct as clear evidence of guilt.

IV

At the trial there was considerable evidence about the blood spots found in
the boot of the appellant’s car, and extensive submissions were directed to
that aspect of the case, which also featured prominently in the appellant’s
unsuccessful application for leave to appeal against conviction.

In his summing-up, the trial judge initially directed the jury that while
the scientific evidence was not conclusive that the deceased had bled in
the boot of the appellant’s car, the evidence was consistent with such a
finding and was evidence to which the jury could pay attention. The judge
indicated that the blood group of the deceased was one he shared with a
very small percentage of the population. Counsel for the appellant invited
the judge to modify his summing-up on that aspect, and the judge did so. At
the conclusion of the judge’s further explanation counsel for the appellant
expressed himself to be content.

On appeal, this Court expressed the view that the judge’s initial
summing-up had gone too far. But it held that the further explanation had
corrected the error and that the appellant could not complain of the final
direction since his counsel had expressly acquiesced in it.

It is unnecessary to consider this evidence or the judge’s direction in any
detail for purposes of the present appeal for two reasons. The first reason
is that both sides now agree that the evidence relating to the blood spots
is of no probative value whatever. The second reason is that, in the light
of new evidence now before the Court, the Crown do not seek to uphold the
suggestion that the body of the deceased was at any time in the boot of the
appellant’s car. Evidence of these blood spots has ceased to be a pillar of
the Crown case. That evidence is accepted as irrelevant to any question we
have to decide.

V

At the close of the prosecution case at the trial, the defence submitted
that there was no case fit for consideration by the jury. Lengthy
submissions were made, which resulted in the judge indicating that he would
direct a verdict of not guilty on the count of murder but would leave the
issue of manslaughter to the jury.

In the course of submissions for the Crown, counsel outlined the
prosecution case that the body of the deceased had lain, unconscious, in
the appellant’s house or garage, or in the boot of his car, from about 7pm
until about 10pm. He nailed the Crown’s colours to the contention that any
sightings of the car between about 7pm and about 8pm were the results of
visits made by the appellant for purposes of reconnaissance.

In his direction to the jury, the trial judge indicated, plainly correctly,
that before they could convict the appellant of manslaughter the jury had
to be sure that he unlawfully and without excuse first hit the deceased so
as to fracture his skull and then dumped his body in the river. He
summarised the Crown case in this way:

“The prosecution say that at some time the body was put in the boot of the
Austin Princess which was loaned to the accused for the purpose of the
‘It’s a Knockout’ competition. Later, allege the prosecution, when it was
dark the car was driven probably down a quiet secluded lane, known as Gas
Works Lane, and the deceased was dumped in the river, in fact still alive.
……”

He went on to ask:

“So did the accused hit the deceased, as the prosecution suggest? Did he
thereafter put the helpless, concussed and probably unconscious body in the
boot of the car, not necessarily straight away but at some time that
evening, so that it could be conveyed in the hours of darkness to the river
side?”

He continued:

“One of the points which [prosecuting counsel] asks you to bear in mind is
that one thing is certain, is it not, that 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? Another question for your consideration is, if he was, as
the expression has gone in this case, sighted some time or other before
eight o’clock, was he out looking at the state of the river to see whether
it was high enough for the body to be dumped? 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.”

While other theories may no doubt have been aired in the course of the
trial, the thrust of the Crown case, clearly put by the judge to the jury,
rested on an assault upon the deceased by the appellant at the appellant’s
house between about 6.30 and 7.15pm on the evening of 5 August, followed by
the carriage of the unconscious body of the deceased to the river in the
boot of the appellant’s car and the deposit of the body in the river,
probably under cover of darkness during the period when the appellant
absented himself from the dinner at the hotel.

VI

On the hearing of the appeal we were asked to receive the evidence of three
medical witnesses: Mr Adrian Sugar, a consultant oral and maxillofacial
surgeon; Mr Sam Galbraith, a neuro-surgeon; and Professor Bernard Knight, a
forensic pathologist. Having considered the terms of section 23(1) of the
Criminal Appeal Act 1968 as amended, we are satisfied that this is evidence
which we should receive. We read the written reports of these three
witnesses, all of whom were called and fully examined and cross-examined.
We were also asked to receive the written and oral evidence of Dr Iain
West and Professor Mant replying to this evidence adduced by the appellant.
We are satisfied that this evidence also should be received; these
witnesses also were called, examined and cross-examined.

This medical evidence was primarily directed to the causation of the
fracture of the skull which the deceased sustained. This is an aspect which
we address below. But first we should deal with an aspect of the case which
did not loom large at the trial, but which has assumed a new importance in
the light of new evidence given to us: the likely interval between the
injuries inflicted on the deceased and his death by drowning.

There is no verbatim record of the evidence given at the trial by Dr West.
According to counsel’s note, it appears that he was asked about the likely
interval between the infliction of physical injury on the deceased and his
death by drowning and gave it as his opinion that the interval could have
been anything from some minutes to some hours. There is no reason to doubt
the accuracy of this record, since in evidence to us Dr West testified to
very much the same effect. Thus the medical evidence adduced before the
judge and the trial jury gave no reason to doubt that the interval between
the infliction of the physical injuries and the drowning could have been
something between two and four hours, as the version of events put forward
by the Crown suggested.

In his report prepared for this appeal, however, Dr West wrote:

“I have no recollection of ever proposing the view that he [the deceased]
would have lain unconscious in a car boot for a period of hours before
entering the river and, as I recollect, my view has always been that
submersion probably followed fairly rapidly upon receipt of the injuries to
his head. ………”

In his oral evidence to us Dr West testified that in his opinion it was
probable that the interval between physical injury and death was a short
one. He told us that he had always considered the likely interval to be
short because of the lack of swelling and bruising attributable to the very
severe injuries inflicted on the deceased. This pointed towards his death
before swelling and bruising had had time to develop fully.

Although originally instructed on behalf of the appellant, Professor Mant
was called to give evidence before us by the Crown. In a report prepared
for the appeal he wrote:

“At the time that I undertook my examination of the body of Lewis I
understood that the case against him was based upon the assumption that he
had knocked Lewis senseless at his house and then put him in the boot of
his car and some three hours later had left the dinner party he was
attending for a short period during which time he deposited the body of
Lewis in the River Arun. It was not possible for Wallace to have been
involved in such a scenario. Lewis had bruising of the knuckles of his
right hand consistent with him having delivered a heavy blow or blows to
some person. There were no injuries to Wallace recorded at his arrest. It
would appear that Lewis was attacked by one or more persons at the site
where his watch and blood were found and immediately dumped in the river.
It is unlikely that any persons involved in the fight and the dragging of
Lewis to the river would not have blood on their person and clothing. In my
opinion too much emphasis has been put upon interpreting the mechanism of
the head injuries when it would appear clear that Lewis received
incapacitating head injuries on the river bank and after the infliction of
these injuries was immediately placed in the River Arun”.

In oral evidence he disagreed with Dr West’s opinion that the interval
could have been a small number of hours. His clear opinion was that the
deceased had been placed in the river within a few minutes of suffering the
physical injuries.

The Crown did not seek to challenge this opinion, which put an entirely
different factual complexion upon the case. It made it very unlikely that
the physical injuries had been inflicted on the deceased at the appellant’s
house. It made it highly unlikely that the body of the deceased had ever
been in the boot of the appellant’s car, and rendered the detailed evidence
about the blood spots in the boot entirely irrelevant. It obviated any need
to consider why the appellant had left the dinner party between 10 and
10.30pm and made it unnecessary to consider the truthfulness of the
explanation given by the appellant for that absence. Above all, it pointed
towards a physical attack on the deceased on the river bank, probably at or
about the place where his keys and watch were found, since these gave the
best clue to the point at which the body of the deceased was likely to have
entered the river. This was a possibility which, on the case as put by the
Crown and summed up by the judge, the jury were
never called upon to consider otherwise than as a rather vague suggestion
advanced by the defence. Had the jury been invited to consider this
possibility, certain matters would plainly have called for consideration:
among these were the fact that the appellant’s car and the deceased’s car
were both seen close to the swimming pool car park shortly after 6.30pm on
5 August; the fact that the appellant’s car was seen in the driveway
outside his house at 6.40pm and again at 7.20pm; the absence of any
evidence that the appellant’s conspicuous white car was ever seen at the
relevant time at or near the sluice gate, which a vehicle could only reach
via Gasworks Lane; the fact that the sluice gate was clearly visible from a
much-used road bridge which carried the Arundel by-pass across the river;
the absence of any witness who saw an attack carried out on a frequented
towpath in broad daylight on a summer evening; and the evidence of a
witness, Miss Amanda Metcalfe, to which detailed reference is made below.
The facts that the deceased’s fly was unzipped and that his penis was
retained in the waist band of his underpants were also thought by some of
the doctors to point to an inference that he was urinating, or preparing to
urinate, at the time when he was attacked: if so, this also suggested an
assault on the river bank.

VII

According to the note, obviously abbreviated, made by trial counsel, Dr
West described the fracture sustained by the deceased as “most unusual” and
as having been caused by upwards pressure. He appears to have testified
that the “only cause could be sudden upward pressure to cartilage of nose,
like a pile-driver”. He explained that if the upwards blow had been struck
by a hard object, some grazing or splitting of the skin would be expected.
It therefore appeared that the blow had been struck by a cushioned surface
such as the heel of a hand. It appears that in the witness box Dr West
demonstrated an upwards blow struck with the heel of a hand, demonstrating
how the head of the victim could be restrained while the blow was struck by
placing a forearm behind the neck of the victim. This was, it appears,
information which Dr West had obtained from a conversation with an
American secret service agent. He thought it difficult to produce the
result observed in the deceased with a clenched fist, but thought the edge
of a hand could achieve that result.

Since Professor Mant, in his report prepared for the appellant, had thought
the deceased’s skull fracture to have been caused by a karate-type chop
delivered to the under part of the nose with great force, there was
naturally little cross-examination of

Dr West on this issue. In summing-up to the jury, the judge said:

“As [counsel for the defence] rightly said to you, the evidence in this
case as to what occurred in the house stems from a variety of other facts
upon which the prosecution rely, and the prosecution rely very strongly
upon the medical evidence. The medical evidence which is in this respect
uncontested, unchallenged, is of some blow probably at the base of the nose
forcing the cartilage back up and fracturing the skull horizontally, a cut
over the eye, bruising at the top of the back in the area by the shoulders,
bruising on the arms, and signs of bruising on the knuckles of the
deceased. …….”

Dr West’s description of the causation of the deceased’s fracture as “most
unusual” was something of an understatement. Neither he, nor Professor
Mant, nor any of the other witnesses from whom we received evidence, had
ever seen or heard or read of a similar fracture so caused. Mr Sugar did
not consider it credible that the deceased’s skull fracture had been caused
in this way. Had it been, he would have expected to find severe damage to
and displacement of the nasal septum, nasal bones and possibly the anterior
nasal spine of the deceased, since these were fragile structures, easily
damaged; but the post mortem examination of the deceased did not indicate
damage of this kind. On the contrary, the damage to these structures was
minimal. Mr Galbraith considered it very unlikely if not impossible that
the fracture had been caused by a karate blow to the nose, for very much
the same reason. Professor Knight considered the suggested mechanism of
causation of the skull fracture to be impossible. Taking the vivid analogy
of a pile-driver which Dr West had used at the trial, it was possible to
envisage the delivery of a blow of considerable force; but the pile was the
bony and cartilaginous structure of the nose, which had to be driven into
the skull with sufficient force to fracture
it; and he did not consider that this could be achieved without very
substantial damage to the structure of the nose.

Mr Sugar, Mr Galbraith and Professor Knight were all asked for their
opinion as to how the skull fracture had been caused, if not as suggested
by Dr West and Professor Mant. Mr Sugar found it hard to proffer a likely
explanation. Mr Galbraith suggested a blow to the back or front or side of
the head, but accepted that the fracture could not have been the result of
a blow to the back of the head if there had been absolutely no injury to
the back of the head. Professor Knight considered the most likely
explanations to be a heavy impact on the back of the head, perhaps caused
by a fall on the back of the head, or by a heavy blow to the side of the
head.

In his oral evidence to us, and in his written report prepared for this
appeal, Dr West emphasised that he had never regarded an upward blow
delivered to the base of the nose as the necessary cause of the deceased’s
skull fracture, but only as a possible cause. He had regarded the causation
of this fracture as a difficult puzzle, and had favoured this explanation
for want of any other plausible explanation of how the fracture had been
caused. He adhered to this opinion.

In his report prepared for this hearing, Professor Mant continued to regard
a karate chop explanation as possible, and continued to dismiss the
possibility of a contre coup fracture resulting from a heavy impact to the
back of the scalp, because there was no physical evidence of such an
impact. He did however now consider that the injury could have been caused
if the left side of the head had been stamped on with a soft-soled shoe
whilst the right side of the head had been in contact with some rough,
unyielding surface. He concluded that he could not, in retrospect, with
certainty dismiss that as a possible cause of the skull fracture. It was a
possibility which he had been caused to entertain as a result of experience
he had acquired since the trial.

If the trial jury were allowed to accept the karate chop explanation of the
deceased’s skull fracture as a simple and wholly satisfactory explanation
of that injury, they were plainly misled. This was one possibility, but
even if a contre coup explanation is ruled out it was only one of two
alternative explanations, and there were obvious and formidable objections
to it. If it were to be accepted at all, it
could only be accepted with diffidence. It does not, however, seem to us
that the precise mechanism of causation of this skull fracture is a matter
of great significance in deciding when and where the deceased was attacked.
All the doctors were inclined to the view that the effect of the blow which
caused this fracture would have been to render the deceased unconscious, or
at any rate affect his level of consciousness very adversely. Once that
conclusion is reached, it may not matter very much how exactly the fracture
was caused.

That conclusion is, however, subject to one possibly significant
qualification. The appellant had previously served in the SAS. Before the
trial began, it was agreed between the Crown and the defence that evidence
of that service should not be laid before the jury, since it was regarded
as potentially prejudicial to the appellant and not probative. This
agreement was frustrated by the publication in several newspapers,
including the Daily Mail and the Daily Express , of prominent pictures of
the appellant in military uniform. This prompted counsel acting for the
appellant to ask him in examination-in-chief whether, during his service in
the SAS, he had received any training in unarmed combat, which the
appellant said he had not. Counsel for the Crown then asked questions on
this aspect. It is now suggested on behalf of the appellant that the
evidence given on the causation of the fracture, coupled with the published
pictures of the appellant in uniform, could well have led the jury to
disbelieve him when he denied any training in unarmed combat. He was, after
all, a defendant with a proven record of deception and dishonesty, and the
jury (it is said) may well have rejected his denial of any training in
unarmed combat when confronted with the evidence of Dr West which, as
demonstrated by him in the witness box, suggested a very professional
assault upon the deceased.

It is very difficult, 15 years after the trial, to know what, if any,
significance to attach to this submission. We would, however, in the
absence of any reason to suppose that the jury indulged in ill-founded
speculation, be disinclined to infer that they did so. It was, as we
understand, the new medical evidence on causation which led the Home
Secretary to refer the case back to this Court. We do not regard that new
evidence as a reason for allowing the appeal.

VIII

As indicated above, the Crown now accept that the conviction of the
appellant cannot be sustained on the factual basis put to the jury at the
trial. In all probability the deceased was not knocked unconscious at the
appellant’s house, but on the river bank. All the evidence as to the blood
stains in the boot of the appellant’s car and the reasons for the
appellant’s absence during dinner are accepted as irrelevant. But the Crown
maintain that despite this radical change in the factual substratum on
which the conviction was based it should nonetheless be regarded as safe
and upheld by this Court. In making that submission the Crown rely heavily,
as the Crown have relied heavily throughout, on what has been described
above as the fourth pillar of the Crown case, the lies told by the
appellant and the deception which he practised.

In his summing-up to the jury, the judge said:

“At the heart of the prosecution case is a submission that the accused lied
and lied to the police and changed his story time after time, that he did
so to cover up or to escape from his guilt, and that he lied to you,
members of the jury, in the witness box in an endeavour to hoodwink you
into a belief in his innocence or an uncertainty as to his guilt”.

Later the judge said:

“Now, it may be convenient if I leave [prosecuting counsel’s] comments on
the interviews to the time when I take you through the interviews, but
simply just to leave it with you on this basis, that [counsel] says that
the pattern of the interviews shows that the defendant started either
concealing facts or telling lies to all and sundry, and he made the point
which you may think is a point of some significance —it is a question
though entirely for you to decide —and that point was this: why not tell
that distraught young woman, the anxious young woman at the dinner party:
‘Why, I should not worry, my dear. I saw him at half past six, dropped him
off just after seven, perfectly all right’? Not a word at the dinner party.
Back at home throughout the long hours of Wednesday night, or Tuesday night
and early Wednesday morning, a desperately worried young woman. Why on
earth not tell her then and why fob her off with other possible excuses?
The prosecution say, and they invite you to conclude, the reason why was that in his heart of hearts he knew the real truth was that he was not safe and sound, deposited unharmed at seven o’clock”.

The judge very properly reminded the jury in detail of the appellant’s
interviews with the police, pointing out the numerous occasions upon which
the appellant told lies, or failed to give the account which he had ended
up by giving, and the various occasions upon which he had changed his story
and engaged in deliberate deception. Having concluded a lengthy recitation
of the evidence, the judge concluded:

“At the end of it all, members of the jury, and I have now come to the end
of my summing up, you will have to say to yourselves: ‘let us try and cut
our way through a mass of evidence. Let us try and see the main points. Let
us follow the arguments which have been put to us by counsel for the
prosecution and counsel for the defence’ —most helpful, both sides —’let us
try and disentangle from all this quantity of detail certain salient
features. Let us remember that the prosecution have to prove this case. Let
us remember that lies may not necessarily indicate a cover-up’. In the end,
I venture to suggest to you that each one of you will have to ask
yourselves, what did you think of him when he stood in that witness box? If
he told you the truth, of course acquit him. If he may have told you the
truth, if he has raised doubts about it, of course acquit him. But if you
think that pattern of cover-up, of lies, of deliberate evasion of the truth
starting right from the denial of any meeting at 6.30, persisted in until
it is broken down by the police saying ‘look at that diary’ —cover-up, say
the prosecution. Never a word, if his story was true, to Jane that night at
dinner. Never a word, if his story was true, to Jane throughout those
agonizing hours, the early hours of Wednesday morning. Would he ever have
disclosed the meeting until the police confronted him with that diary
entry? If that pattern of deliberate withholding of the truth has continued
throughout those interviews, throughout those statements, and continued
there in the witness box so that there has been an attempt to hoodwink you,
then, however painful it may be for a man of such excellent character and
such good service to the community, if you are driven to the conclusion
from which there is no escape, that his demeanour there in the witness box
was too smooth by half, that he could not really answer the questions, that
he was too composed, that is where you come in, members of the jury,
because the prosecution say that he was now in this man’s company at 6.30
to some time after 7. There is only one car with blood in the boot, and
that car is the one which this man drove.

I finally conclude by saying, doing the best you can, face up to this very
difficult challenge which is part of your duty: ‘Are we sure that that manhas lied to us?’ If you are not sure that he has lied to you, acquit him.
If you are sure he has lied to you, then ask yourselves why. Are not lies,
cover-ups, evasion of the truth, an attempt to hoodwink the jury for the
reason that the prosecution say is the real reason, that in his heart of
hearts he knows he did it? It is entirely a question for you, and that is
the problem which faces you.”

The Crown contend that the judge’s approach to this aspect of the case was
correct. It is argued that the course of deception, prevarication and
dishonesty on which the appellant embarked is capable of only one
explanation, namely that he was responsible for the assault and drowning of
the deceased. That conclusion, the Crown submit, is inescapable, whether on
the factual basis put to the jury or on what now appears to be the true
factual basis.

It is not in our judgment useful or desirable to consider whether the
direction of the trial judge to the jury on this aspect of the matter was
in accordance with the law as it stood at the time of the trial, although
it is to be noted that no complaint was made on the application for leave
to appeal against conviction. Plainly the law on this subject has developed
in the 15 years since the trial took place. This development is not the
result of pedantry but of recognition of a danger that juries may, unless
carefully directed, convict a defendant who is shown to have given a
dishonest explanation of his conduct without adequately considering the
possibility of innocent reasons for his dishonesty and without focusing on
the essential question, which is whether such dishonesty can in the context
of all the evidence safely be regarded as clear evidence of guilt. That is
the principle clearly underlying the statement of principle in * R v Burge
and Pegg * [1996] 1 Cr App R 163 at 174:

“The mere fact that the defendant lied is not in itself evidence of guilt
since defendants may lie for innocent reasons, so only if the jury is sure
that the defendant did not lie for an innocent reason can a lie support the
prosecution case.”

There can be no doubt but that the appellant’s dishonest and deceptive
course of conduct raised and raises a formidable case against him. It may
be that even if directed in accordance with the
most recent authorities and on the facts as they have now emerged, a jury
would still have convicted and properly convicted. But this is now the
substantial case against the appellant. There are, as shown above, real
difficulties in the Crown’s factual case as now advanced. We have to
consider whether in the light of all the material now before us we think
that the conviction of the appellant was unsafe. We conclude that it was.
If the conviction is to be upheld on the basis of his dishonesty alone, we
must be able confidently to exclude the reasonable possibility of any
innocent explanation for the appellant’s conduct. We feel unable to do so.
It seems to us possible, even if unlikely, that the appellant initially
withheld reference to his meeting with the deceased out of a desire to
conceal the subject matter of that meeting; and that from that moment
onwards he found himself drawn into an ever-increasing spiral of deception.

IX

We are fortified in our view that we cannot regard this conviction as safe
by considering the evidence of Miss Amanda Metcalfe, a witness called by
the Crown at the invitation of the defence, and regarded as honest by the
Crown, although thought to be mistaken. Amanda Metcalfe was a riding
instructor who worked part time in the Golden Goose, her parents’ public
house which was situated in The Causeway, Arundel, further from the town
centre than the swimming pool car park. She testified that she had seen the
deceased, in the company (unusually) of another man, whom she could not
identify, some time after about 7pm on the evening of 5 August. She was
initially uncertain as to the day and date of her seeing him, but was able
to pin down the date by reference to a number of matters: she knew that
this sighting had occurred after a riding accident she had suffered on
Sunday 3 August; she had not worked on the following day, the Monday; she
recalled that the sighting had been on the evening on which a new barman
had started work in the public house, which was Tuesday 5 August; and the
sighting could not have occurred after 5 August because the deceased was by
then dead.

The judge directed the jury very fully and fairly on this evidence. He said:
“Now, members of the jury, what about the Golden Goose? Miss Amanda Jane
Metcalfe, whose parents own the Golden Goose motel, and she herself was a
riding instructress, the little lady who stepped into the witness box days
and days ago in this case, she knew Jonathan Lewis as a customer at the
bar. Just listen to this: ‘I think the last time I saw him was the Tuesday
he went missing. The earliest that I could have seen him would be ten to
seven. I did not see him arrive.’ Now, according to the prosecution, indeed
according to the defendant, if he was meeting with Colin Wallace at half
past six that Tuesday evening and if he is taken to Wallace’s home and if
there is a quiet orderly conversation and he is dropped off at twenty past
seven, the earliest he could have got to the Golden Goose would be about
twenty-five past seven, you may think.

[Counsel for the defence] says the timing given by Amanda Metcalfe covers
the situation, because the way she put it is: ‘It could not have been
before ten to seven, and I did not see him leave. I certainly saw him
there, and I cannot say when John Lewis left, but it was long before
closing time’. 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. So she said this to [counsel for the defence]: ‘If
it had been Monday night I would not have been [working], and it could not
have been Monday night because of it being Vince’s first night there and
that was a Tuesday. It was still light when I went off duty and it was
still daylight when I saw Jonathan Lewis.’

This is at the heart really, you may think, of the opening for the defence.
If Miss Amanda Metcalfe 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.

[Counsel for the defence] 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 [counsel for the defence] 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?””

Since the jury convicted in the light of that very clear direction, they
must have concluded that the evidence of Amanda Metcalfe could be
discounted. We cannot of course know upon what basis they discounted it.
If, however, the jury had known that the assault upon the deceased had not
in all probability taken place at the appellant’s house but on the river
bank, and that the deceased had never in all probability been in the boot
of the appellant’s car, it must be at the very least doubtful whether the
jury could have discounted this evidence. No basis has been suggested to us
for discounting the evidence of an independent, honest and apparently
convincing witness who only came forward when she saw a photograph of the
deceased exhibited outside the local police station. The jury would have
appreciated that no trace of blood was ever found on the appellant or his
clothing, although the medical evidence was clear that the injuries
inflicted on the deceased would in all probability have led to profuse
bleeding, and also that no evidence was given of injury to the appellant,
despite the clear post mortem evidence that the deceased had delivered a
heavy blow on someone. In the absence of any reason to discount the
evidence of Amanda Metcalfe other than the dishonest and deceptive conduct
of the appellant, we cannot regard this conviction as safe.

X

In considering the safety of this conviction we have to view the whole case
in the round. It may be that none of the appellant’s submissions, taken on
its own, including submissions advanced in writing but not elaborated in
oral argument, would have caused us to doubt the safety of the conviction.

But viewing these submissions cumulatively we feel obliged to do so. Had
the case as it now appears been put before the Court in February 1982 when
the application for leave to appeal against conviction was dismissed, we
have no doubt that leave would have been granted, the appeal allowed and a
new trial ordered. That would in our judgment have been plainly the correct
decision at that time. While the passage of time may influence our judgment
on the practicability and desirability of ordering a new trial, it should
not, in our judgment, alter our opinion on the safety of the conviction.

We accordingly allow this appeal and quash the conviction of the appellant
of manslaughter.

(Applications by the Crown for retrial and by the defendant for costs
adjourned )

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.

Links

[1] 2015 Sept 9 John Colin Wallace, Court of Appeal 12th February 1982 https://cathyfox.wordpress.com/2015/09/08/john-colin-wallace-court-of-appeal-12th-february-1982/

[2] 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/

[3] 2015 Sept 9 accessed Wikipedia Colin Wallace https://en.wikipedia.org/wiki/Colin_Wallace

[4] 2015 May 28 BBC UK agents ‘worked with NI paramilitary killers’ http://www.bbc.co.uk/news/uk-32887445  207 out of 210 arrests of paramilitaries in Northern Ireland were British agents

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

[B] NAPAC http://www.napac.org.uk/

[C] One in Four http://www.oneinfour.org.uk/

[D] Havoca http://www.havoca.org/HAVOCA_home.htm

[E] SurvivorsJustice Triggers post http://survivorsjustice.com/2014/02/26/triggers-what-are-they-and-how-do-we-work-through-them/

[F] SurvivorsJustice Blog http://survivorsjustice.com/

[G] Jim Hopper Mindfulness http://www.jimhopper.com/mindfulness/

[H] Jim Hopper Meditation http://www.jimhopper.com/mindfulness/#cultivate

This is all written in good faith but if there is anything that needs to be corrected please email cathyfox@bigfoot.com

cathyfox the truth will out, the truth will shout, the truth will set us free

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the truth will out, the truth will shout, the truth will set us free...
This entry was posted in #OpDeathEaters, cathy fox blog, Child sexual abuse, Childrens home, Northern Ireland, VIP CSA, VIPs MPs Lords etc and tagged , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

2 Responses to John Colin Wallace Second Appeal 9 October 1996 Court of Appeal

  1. Pingback: An Index and Timeline of Court & Court of Appeal, EWCA and Scottish Documents on Cathy Fox Blog | cathyfox blog

  2. Pingback: John Colin Wallace First Appeal 12th February 1982 Court of Appeal | cathyfox blog

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