Tully, R v [2002] EWCA Crim 18 (25th January, 2002)

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England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2002] EWCA Crim 18

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Tully, R v [2002] EWCA Crim 18 (25th January, 2002)

		Neutral Citation Number: [2002] EWCA Crim 18
		Case No: 200102290Z1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES

Royal Courts of Justice
Strand,
London, WC2A 2LL

25th January 2002

B e f o r e :

LORD JUSTICE KAY
MR JUSTICE MACKAY
and
THE RECORDER OF CHESTER
____________________

R
Respondent

- v -

DEREK JACK TULLY
Appellant_

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr R. Anelay QC and N. Mercer (instructed for the Appellant)
Mr C. Pratt QC and G. Argent (instructed for the Crown)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Kay:

On the 14^th May 1999 in the Crown Court at Lewes before His Honour Judge Richard Brown and a jury, the appellant was convicted of attempted murder. On the 14^th June 1999 he was sentenced to 6 years imprisonment. He now appeals against conviction by leave of the single judge.

The Crown’s case was that in the earlier hours of the 5^th January 1998, the appellant Mr Tully, then aged 68, attacked his wife, Valerie Tully, then aged 62, and attempted to kill her. The attack was said to have taken place in their home, 41 Cissbury Gardens, Findon Valley, Worthing and the Crown alleged that following the attack, the appellant set fire to the house in order to destroy the evidence of what he had done.

The first that anyone outside the house knew that anything out of the ordinary was happening was shortly after 5.30 am when a Mrs Charmaine Clegg who was asleep in her home across the road from number 41 with her husband was awoken by a smell of burning. She was able to see an orange glow and at that stage thought that it was coming from a new house that was being built near to the appellant’s home. She awoke her husband who telephoned for the Fire Brigade.

Mrs Clegg then went to the front door and realised that it was number 41 that was on fire. She told her husband who telephoned again to the fire brigade and gave them the corrected information.

Mrs Clegg, followed by her husband, went across to number 41. There they could clearly see flames coming from the back of the roof. Mr Clegg banged on the front door and on the window to the right of the door but he got no response. He then went to neighbours to rouse them. The neighbours went to number 41 and further attempts were made to wake the occupants but again with no apparent success.

Shortly afterwards, probably 5-6 minutes after the initial phone call, the first of four fire engines arrived at the scene. By then the fire was well alight. There were flames 10-20 feet high coming from the roof. The neighbours told the firemen that there were occupants still in the house and one fire fighter broke a pane in the front door.

Two fire fighters then entered the premises and found that the inner front door into the hall was closed but unlocked. Flames were visible at the end of the hallway and could be seen coming from the loft hatch. The loft ladder was down.

At this stage Mr Tully appeared. There was a dispute at trial as to exactly where he was. Leading fireman Moore said that he was about to enter the first bedroom on the right, which he had been informed was the one used by the Tullys, when the appellant walked out of it apparently going towards the lounge at the end of the hallway. He was wearing a pyjama top with a vest underneath, a pair of red/brown trousers and slippers.

The appellant at trial denied that he was coming from the bedroom and asserted that he was coming out of the lounge when he met Mr Moore by the junction of the hall and the lounge doorway.

In any event Mr Moore escorted the appellant to the porch doorway where other firemen were waiting and the appellant then made his way down the path. The appellant had said nothing to Mr Moore about the presence of his wife in the premises and Mr Moore gave evidence that he did not seem worried or to be in a panic. However, Mr Moore agreed in cross-examination that the appellant did not seem normal.

One of the firemen at the door was Sub-Officer Blackaby and he gave disputed evidence about the condition of the appellant as he emerged from the house. He described the appellant’s face as clean with little blackness on it and he said that he noticed that his right knuckle was grazed. According to the sub-officer it was only when Mr Moore got to the fire engine that he said “my wife’s in there”.

Mr Clegg saw the appellant being led down the path and he said that the appellant’s face was blackened. He said that the appellant was not entirely coherent and said “something about intruders, something to the effect that somebody was after him”. Mrs Clegg thought that the appellant was clearly in shock. Neither of the Cleggs noticed any injuries on him.

The other neighbours who had been summoned by Mr Clegg, Joyce Gardener and Arthur McMullen, gave evidence of seeing the appellant at this stage. Joyce Gardener said that he appeared agitated and that he said something like “they are trying to kill us”. Arthur McMullen also described the appellant as agitated with staring eyes and he said that the appellant said words to the effect that “there were two of them trying to kill us” and that he had knocked one of them down. The appellant had shown him his hands but it was too dark to see anything.

Having accompanied the appellant to the door Mr Moore returned inside the premises. In evidence, although not in his original statement, he described having heard a “distressed type noise” like moaning coming from somewhere in the house. He traced this noise to the front bedroom although visibility was difficult and eventually found Mrs Tully on the floor alongside the bed with her head just in front of the bedside cabinet. He was unable to get any response from her and eventually managed to get her to the front door with assistance from another fireman but it was a struggle. Other fire-officers saw Mrs Tully in the hallway. She was described as screaming hysterically, her hair was matted with blood and her face was streaked with apparently fresh blood.

An ambulance arrived at the scene at 5.50 am and one of the crew, Mr Moreton, immediately saw that she had suffered a severe head injury and bruising around the eyes which he associated, quite rightly as it was to transpire, with a possible fractured skull.

At this stage a number of people were looking for the appellant who according to Mr McMullen had been going to the kitchen of number 39 for glasses of water.

Fire-fighter Barker saw the appellant pacing up and down on the pavement in an agitated condition, cursing and swearing and suggested that he accompany Mrs Tully into the ambulance. He said that the appellant replied to the effect that he was unable “to look at his wife when she was like that or looking like that”. Mr Moreton said that the appellant did approach as Mrs Tully was being placed on the stretcher but did not appear to be shaken by the sight of his wife.

Fire-fighter Dixon stated that he saw the appellant enter the ambulance and sit opposite to where his wife was placed while the crew were attempting to place her in a surgical collar. He appeared somewhat confused and at that stage the appellant was asked to leave the ambulance which he did.

Police officers attended the scene and PC Shanks gave evidence that he spoke to the appellant at 6 am on the pavement. He had asked the appellant how the fire had started and the appellant replied that “he had awoken to someone smashing the fuck out of his missus with a stick” and that this person, who could have been a female went through the back, and when the appellant returned to his wife “she was in a hell of a state”. When asked to describe the person, the appellant had replied “that’s a stupid question to ask” and that during the attack the assailant “must have knocked him out or something”. After this conversation, the appellant walked away and the next sight of him was his being handed some keys by a fireman at the front door. The officer was cross-examined as to the detail of the conversation and conceded that the record in his notebook was far from full.

Two other officers, PC’s Leech and Draper, spoke to the appellant in the street. PC Leech said that he saw the appellant after Mrs Tully had been taken to the ambulance. The appellant had walked up to him and said “what’s all this bollocks” before becoming aggressive and asking why the police were there. The officer said that he noticed a minor injury to the top of the appellant’s head and some smoke marks. The appellant then began pacing up and down before getting into the ambulance where upon PC Leech asked him to leave at the request of the paramedic. At that stage the appellant said “what’s going on what’s all this bollocks”. In cross-examination the officer agreed that the appellant appeared to be deeply distressed and shocked and that might have been because he had been asked to leave the ambulance for a second time.

The appellant then walked up the road followed initially by PC Leech PC Draper then spoke to him. He seemed unhappy at being followed by the police. PC Draper asked if he had car keys so that vehicles could be moved from the drive the appellant replied that he did not and that they were not even in his coat. He again appeared extremely agitated and distressed when told he could not go to his own house to get them he said words to the effect that “he could do what he wanted because it was his house and his fucking wife”. The reference to his wife was denied. PC Draper was eventually given the keys and moved the cars during which time the appellant approached him telling him to get out of the car because the appellant should be moving the car.

The appellant then walked up the road followed by PC Leech who attempted to calm him down. When he was asked what happened, the appellant replied “a man was in my room attacking my wife, beating her up I was knocked out cold and then I awoke to my house ablaze”. PC Draper then followed the appellant requesting him to move away and physically restrained him whereupon the appellant threatened to hit him. The officer told the appellant that he was concerned that he might be in shock and wanted him to get attention to which the appellant replied that he did not like doctors and just needed a walk. They then walked together during which time there was some conversation about his business and the officer thought that it was strange that the appellant made no inquiry at all about his wife, the only reference being that she had been “a diamond” during the collapse of his business.

When they returned to the house, PC Draper took the appellant to the garage of number 41 and told him that he was under arrest for attempted murder. The appellant replied “what?”. On the journey to the police station he said “this is a dream, I will wake up in a moment”.

The appellant told a scenes of crime officer, Anna Maxwell, that he had injured his knuckles in striking a neighbours wall because he had been angry.

The appellant was interviewed on three occasions on the 5^th and 7^th January 1998 and in June 1998. He denied attacking his wife and setting fire to the house and alleged that it had been done by intruders.

Mrs Tully was taken to Worthing hospital where she was found to have multiple lacerations on her scalp and a visible compound fracture to the skull. A brain scan revealed multiple skull fractures and bruising to the brain. The doctor who had examined her concluded that there had been at least seven hard blows to the head and at least two more to the back and to the shoulders. It was likely that there had been direct blows to the eyes consistent with the use of a fist. Other bruising to the neck and shoulders was indicative of the use of an object such as a stick.

There were further injuries consistent with attempts by Mrs Tully to protect herself from multiple blows. The areas of injury indicated that she had not been in the same position throughout the attack. The injuries themselves appeared to be roughly contemporaneous with one another.

The appellant was examined and found to have bruising and abrasions to the knuckles of both hands consistent with striking a rough surface with a clenched fist and unlikely to have been caused by the striking of a human body. He had also suffered two distinct areas of bruising to the forehead. A blood sample taken from him did not reveal indications of alcohol.

Having rescued the appellant and his wife, fire-officer Moore stated that he went back inside to fight the fire. There was no fire in the spare bedroom. Having looked in the lounge he saw two separate seats of fire, the first he clarified under cross-examination as being in the area of a chair by the patio doors, the other in the region of a chaise-longue. He did not recall any fire to the chair at the right of the door or on the carpet. At that stage the ceiling was intact and he sprayed the patio and chaise lounge areas for 2-3 minutes. He was then joined by other members of the team and assisted them in fighting a fire in the airing cupboard.

Upon realising that the ceiling was about to collapse, Mr Moore exited the building with fire-officer Coleman through the front door and they both made their way to the patio doors. These doors were locked but Mr Moore could see a small fire in the lounge. Mr Coleman opened the french doors which were not locked and which sprang open easily. He then entered the conservatory and was able to partially open the kitchen door having broken a pane of glass in the door. After spraying some water into the kitchen, they returned to the patio doors fire-officer Watson breaking the glass with a fire axe. Fire-officer Beck smashed the glass between the conservatory and the lounge and used a fire hose on the chaise-longue fire.

Subsequently a fire investigation officer, Mr McFarlane, examined the scene. He found areas of damage caused by fire in the lounge and extensive fire damage to the cupboard area below the loft. He believed that the fire had started at a low level and made its way up the airing cupboard although he could not exclude the possibility that there had been radiating heat coming from the loft area. He was certain that the loft hatch had been open at the time of the fire.

In the lounge he noticed a rolled up newspaper on the back seat cushion of the patio door chair. There was a separate seat of fire in the chair near the lounge door entrance. On top of a box in the middle of the room was a rolled up “newspaper torch”. On the carpet in front of an electric fire was a similar piece of newspaper. He also noted a trail on the floor consistent with a flammable liquid trail, apparently caused by alcohol which had been tipped up from bottles of gin and whisky. He believed that the roof fire had started first because it had suffered more damage than the lounge.

He also described finding a section of fluted glass from the lounge door underneath the coffee table. Upon removing it, the carpet beneath was clean and undamaged from which he inferred that it was on the carpet before the fire began. He said that it was clear from this that the lounge door must have been broken before the fire got underway. He also considered that the glass in the kitchen door had been broken by a person rather than resulting from fire damage because the damage was consistent with impact damage.

Mr Munday, a forensic scientist, gave evidence that smoke deposits on the bolt of the patio door suggested that the bolts must have been engaged during the fire and therefore that the patio doors had been locked from the inside at the time of the fire. The french doors to the outside of the conservatory were open but the locking mechanism was in a closed position and it appeared to be secure but could have been pulled open from the outside. Mr Munday accepted that the evidence was consistent with somebody having sprung open the doors prior to the arrival of the fire brigade. The outer front door of the porch had a mortise lock which had showed no signs of being forced. Mr Munday accepted that an intruder could have gained entrance either via the garage roof and loft windows or through the conservatory and kitchen doors. Exit routes could have been via the front or back of the premises.

Mr Munday also examined the fire damage. He confirmed that the loft cover had been open during the fire and in his view the loft fire had originated above the lounge rather than spreading from the ground floor as he would have expected different damage to the timbers if that had been the case. He believed the fire had been developing for at least 15 minutes before the fire brigade arrived as no accelerants such as petrol appeared to have been used.

Mr Munday said that the centre of the lounge had suffered some damage from hot debris falling from the ceiling. Evidence from debris in two holes in the floor suggested that the window of the patio door had been unobstructed when the fire had been underway and that the curtains and blinds must have been in an open position. The back of the chair by the patio window had been almost entirely burnt away. On the back of the chair Mr Munday noted a charred piece of newspaper. He conclude that the chair formed a separate seat of the fire and had not been caused by anything coming from the roof. The chaise- longue formed a further separate location of the fire.

Examination of the chair near the lounge door revealed extensive burning to the front right-hand corner whilst the top of the backrest padding had been burnt away. He concluded that this was “all one piece of burning and could not be explained by spread of fire from elsewhere”. A trail of fire ran on the carpet and there was burning up to and under a wingback chair. He noted that one of the boxes had charred papers on top of it and that there was a third piece of charred paper on the carpet near the electric fire. There were two uncapped bottles of alcohol, one of whiskey and the other of gin.

No flammable liquid or traces of heat damage were found on any of the appellant’s clothing which led Mr Munday to conclude that it was unlikely that the appellant’s trousers were on the arm of the chair when it was alight.

His overall conclusion was that the fires in the lounge were not caused by debris falling from above and had been burning at least as long as the fire in the loft. None of the fires in the lounge showed signs of “prolonged smouldering” and from the evidence of the fire fighters all had been extinguished prior to the collapse of the ceiling into the lounge. He accepted that the chair by the door might have been ignited slightly later than the other seats of fire in the lounge. There was no wadded paper on that chair and no sign of what had lit it. His opinion of the duration of the lounge fires was 15-30 minutes.

Mr Munday agreed that the airing cupboard formed a separate seat of fire but could not rule out burning material from the loft as the cause. He considered it unlikely that the smoke alarm had fallen to the place where it had been found by Mr McFarlane but had more probably been removed and placed there. Indications were that the lounge door had been open during the fire and that the glass in the door had been broken by impact which had taken place either before or at the latest very shortly after the commencement of the fire.

In cross-examination Mr Munday was asked why Mr Moore had not seen the fire by the door by the chair. He replied that it was possible that it was dying down when Mr Moore arrived or that he might have sprayed it with his hose and extinguished it without noticing. He did not believe that it could have started after Mr Moore had begun to spray the lounge as once there was water on the carpet it was unlikely that any fire trail could have set it alight particularly since there was an undamaged chair across the fire trail

The appellant also called expert evidence from Dr Berritt. He was of the opinion that there was probably three separate areas of burning in the lounge. They had been separately ignited or in contact with something which was already alight but had not spread from one site to another. The only area of contention between himself and Mr Munday concerned the question of when the chair near the door became alight. In his view it was important to note that Mr Moore did not notice that this chair was alight. He was of the opinion that the trail of fire across the floor had caused this particular fire and that it was the last item to ignite. He disagreed with Mr Munday’s theory that a jet of water had extinguished it because of the angles involved and the use of the hoses from the door. He did, however, accept a small amount of water might have been sprayed onto the chair. He also believed that Mr Moore would have been aware of the fire if it had burnt out before he arrived and believed that it had ignited after the officer had left. He said that it was possible that the officers did not notice the burning alcohol trail because it would be easy to miss due to its burning in a non-luminous way. When cross-examined, Dr Berritt agreed that whoever ignited the fires had been active for about 15 minutes and for some 10-20 minutes before the arrival of the fire brigade. It was suggested to him that if, as the appellant stated, the person who assaulted Mrs Tully had been doing it within a couple of minutes of the fire brigade arriving then the intruder would have been in the premises for approximately 13 minutes whilst the fire was alight. Dr Berritt agreed that whoever set the blaze had been in the premises for a considerable time.

Other important evidence concerned the finding of glass fragments. Caroline O’Mahoney examined various items from the bungalow including glass from the kitchen door, from the conservatory floor and from the lounge door together with items of clothing from the appellant, namely a pyjama jacket, a vest, a pair of slippers and a pair of trousers. She recovered over 30 fragments of glass from the debris on the surface of the appellants pyjama jacket, all of which had the appearance of being freshly broken in being clean and sharp edged. Analysis of 8 of the fragments revealed that 5 corresponded with glass from the lounge door including 2 pieces of patterned glass, 2 with glass from the kitchen door and 1 from some other source.

She recovered over 20 plain glass fragments from the vest, 4 of these were examined at random and found to be consistent with the type found in the lounge door, although this type of plain glass was to be found throughout the interior of the premises.

From one of the shirts in a linen basket she recovered 13 fragments of glass of which 4 were tested at random; 3 corresponded with glass from the lounge door and 1 from an unknown source.

The witness concluded that although it was possible for glass to have been transferred from the fire fighters to the appellant by direct contact, this was unlikely to account for the amount of glass recovered from the vest and pyjama top. She would not have expected a fire fighter to have acquired that quantity of glass and the evidence was to the effect that no fire fighter had been present when the kitchen and lounge door glass had been broken. The evidence supported the proposition either that the appellant had broken the glass himself or that he had direct contact with the glass on the panes. This conclusion was strongly supported by the fact that he had glass from two distinct sources on his clothing.

When cross-examined she stated that she thought it unlikely that such quantities of glass could have been found on the appellant’s clothing as a result of an intruder shedding glass from his own clothing.

The next area of important scientific evidence concerned bloodstains. Mr Scaysbrook examined the pyjama top. He found many small spots of blood on the left sleeve with a few more on the right sleeve and the front. DNA profiling of a stain on the left cuff indicated a mixture of body fluids from at least two people. The major component came from Mrs Tully, the minor component matched that of the appellant.

In cross-examination he stated that his discovery was more likely to have been blood from Mrs Tully mixed with a body cell, saliva or dandruff from the appellant rather than DNA from his blood. He also accepted that many of the spots of blood found on the appellant’s clothing was sufficiently small to be consistent with him clambering over the body of someone bleeding on the floor but some very fine spots were consistent with impact spray rather than direct physical contact.

Microscopic spots of blood were found on the front and back of the vest but not subjected to DNA analysis. A single blood spot was found on the outside of the left slipper but no definite answer could be given as to how it had got there.

Examination of the trousers revealed a few small spots and smears of blood on the front. There was also a large area of light smearing on the back of both legs in the thigh area. This was consistent with the appellant sitting on a blood stained item whilst in the ambulance. Bloodstains were also found in both pockets. DNA testing revealed the blood as coming from Mrs Tully.

Mr Scaysbrook then examined items recovered from the bedroom. Mrs Tully’s blood was found on her white pillowslip. Large and small areas of bloodstain were found on her blue under pillow. A few spots of blood were also found on one end of the appellant’s blue pillow. His white pillow had a few spots of blood along three edges. There was a heavy bloodstain on the bed quilt near to one corner with many smaller spots and some smearing on both sides. There was heavy staining on a sheet in one corner with small spots across its width. Numerous spots of blood, proved by DNA testing to be that of Mrs Tully, came from the headboard of the bed.

Other items were sent from the house two weeks later including blood stained briefs from the linen basket, a vest smeared with blood, a handkerchief, and a shirt with bloodstains.

The witness concluded that the pattern of bloodstains was consistent with Mrs Tully being attacked on the bed. His initial interpretation was that Mrs Tully was being beaten while on the right side of the bed with her head at some stage on or near her pillow. Distribution of the stains also suggested that her attacker had stood along side the bed and either stood or leaned over her. The spots of blood extending over the width of the sheet and the appellant’s pyjama top were not consistent with the appellant lying beside his wife whilst she was being attacked.

The appellant’s own white pillow did have an area in the middle with no blood and initially gave the impression that there could have been a head on it during the course of the assault. The pillow was, however, heavily dented and consequently was protected by Mrs Tully’s own pillow. In cross-examination he accepted that the pattern could be explained if the appellant had been lying in bed not in a normal position but right at the bottom end of the bed.

Mr Scaysbrook also gave evidence that he had carried out various tests to simulate the distribution of bloodstains during the attack. From comparison between the blood stained patterns derived from these tests and the actual bloodstains, he concluded that there was strong support to suggest that the appellant was standing along side Mrs Tully when the attack took place and that he was not in the bed as he claimed.

One other aspect of the scientific evidence was of importance. The appellant had red marks on his right arm which are depicted in a photograph. These marks were demonstrated to come from Mrs Tully’s nail polish. The bottle that contained that polish was spilled over on Mrs Tully’s bedside table close to the edge of the bed near to where Mrs Tully’s attacker must have stood if the evidence from the scientist as to the assailant standing over her as he attacked her was accepted. The attackers right arm would then have been alongside the bedside cabinet on which the nail varnish was spilled.

On any view the crown’s case was a formidable one and that fact was readily accepted by Mr Anelay QC who represented the appellant before us (although not in the court below).

The appellant gave evidence and it is necessary to set out his account of these events in some detail. He first of all gave evidence that he had been married for close on 50 years and that the marriage had no unusual marriage problems. He gave evidence of a boundary dispute with the previous owner of a neighbouring property and of the considerable ill will surrounding that dispute which had continued even after the sale of the premises to a new owner.

The appellant went on to describe the events of the Sunday. He said that he had not dressed properly but had been wearing slippers, trousers, a vest and pyjama jacket about the house.

At about 1.30 am his wife had gone to bed, whilst he watched television. He would have locked the patio doors before going to bed. He did not know whether the kitchen doors were locked because his wife normally did that with two keys. He then followed his normal practice of taking his clothes off and putting them on the chair just inside the lounge before going through to the bedroom. He said that he would have left the lounge door open because of the location of the alarm in the lounge and the curtains would have been closed before he went to bed.

That night he slept in his vest and pyjama jacket. His normal sleeping arrangement was to sleep on his stomach with his feet hanging down over the end of the bed and he usually pushed the pillow aside and slept lower down.

He had awoken to find himself in the bottom right hand corner of the bed. He said that he could hear unfamiliar noises and also could smell an unfamiliar smell. The noise he described as a “soft hitting noise heard twice and possibly three times”. He realised the smell was one of burning and decided to investigate. He believed that the time lapse between his waking and his subsequently meeting fire officer Moore was about 5 minutes. He got out of bed and struggled towards the door. He could not see his wife at that stage nor was he looking for her but the noise he had heard earlier led him to believe that she was on the floor. Somewhere near the end of the bed he could see a figure in flickering light. It stood for a second before moving off and he tried to go after it. In doing so he fell over his wife and only then became aware that she was down on the floor. He said that at that stage he may have got the nail varnish on him. He believed he might have hit the back of the person with his knuckles but with insufficient force to cause injury either to that person or to himself.

He said that during this time he heard no noises such as banging on the window, shouting or telephone calls. As he went out of the bedroom door he did not look at his wife and the figure was no longer in sight. He heard the lounge door swing to with a click and for this reason thought that the figure had entered the lounge. By now the hall was hot and smokey and he was certain that the lounge door was shut. He believed that the glass in the door was intact although he might have been mistaken about that. He noticed no fire by the airing cupboard at that time although he could see fire at the rim of the loft opening but could not recall whether the loft ladder was fully extended or not.

On entering the lounge he said he walked round amazed at the heat and made a cursory check for the intruder whom he did not see. He panicked and “his decision was to get his trousers on as quickly as possible and sod off”. He saw flames along the back wall by the patio doors and something in the vicinity of the electric fire. He put on his trousers and slippers. He believed that his trousers were on the chair near the door. He went to go out of the lounge and at that time he was wearing those together with his vest and pyjama jacket.

He believed that he met Mr Moore at the junction of the hall and lounge doorway and was taken almost immediately to the front door and that the fireman was mistaken in saying that he had met the appellant coming out of the bedroom doorway. He then made his own way down the path unassisted and had no injuries to his knuckles. Mr Blackaby was wrong about his knuckles and also was incorrect in asserting that he had escorted the appellant on that occasion, Mr Blackaby had escorted him on a later occasion when he had gone back to the door for his keys.

Once on the pavement he said that he was bewildered and did not know how to deal with the situation. He was worried about his wife. He was given a coat by Mr McMullen and went into Mr McMullen’s kitchen for water and while there washed his face. He noticed an injury to his head in the mirror and said to an officer that someone must have hit him and knocked him out although he had no recollection of this and accepted that he had not woken up with a headache.

He explained the injuries to his knuckles by saying that upon coming out of the McMullen’s kitchen he had banged on the wall about three times in frustration.

He said that when he came out of the McMullen’s kitchen the first he saw of his wife was that she was on the stretcher. He had no recollection of an ambulance man telling him to leave. He did remember entering the ambulance and sitting opposite his wife and being told to get out. He also recalled the police arriving and being prevented from returning to get his car keys. He said this was the occasion Mr Blackaby was speaking about. He accepts that he said words to the effect of “what’s all this bollocks” because he was being trailed by police officers. He agreed that he had had a conversation with an officer about business although he believed the officer was mistaken about the detail.

He recalled being taken into the garage and arrested. He said that he was astonished by this. At the police station he was examined by a doctor and declined the offer of hospital treatment. While in the police station he felt that he had been deserted by his family and was very frightened.

He stated that his wife was released from hospital to the care of his sister but after the 4^th April 1998 they had been living together in rented accommodation. He denied both the attack on his wife and any involvement in setting fire to the house.

The appellant’s account to the jury left many questions unanswered. Some of his explanations for the scientific evidence, such as the glass fragments and the nail varnish did not stand up to any close scrutiny. By way of example, on his account when he stumbled and fell over his wife, his right arm would have been furthest away from the spilled nail varnish and in any event would have been covered by the pyjama jacket that he was wearing. It is just about impossible to see how the particular distribution of the nail polish on the outer aspect of his right arm, as depicted in the photographs, could have been caused in this way. Likewise, the fragments of glass are virtually impossible to explain on his version but are wholly consistent with an attempt by him to make it look as if there had been an intruder in the premises.

Thus viewed from the point of view of those representing the appellant, they must have realised that they faced an uphill task. What would have altered that assessment would have been any credible evidence that there had been an intruder in the premises.

It is against that background that we turn to the crux of this appeal which relates entirely to the evidence available from Mrs Tully herself.

Mrs Tully was called at the trial to give evidence by the defence. It is first necessary to summarise the evidence that she did give. She started by confirming her long and happy marriage to the appellant. She made clear that she intended to continue to live with him in the future and she was adamant that he could not have been responsible for the attack upon her. She said that it was not in character adding “you don’t live with somebody for 50 years and not get to know them”.

Leading counsel then representing the appellant asked her a question which it now appears was very carefully worded although the significance of the precise wording was not apparent to the prosecution nor we suspect to anyone else at the trial apart from the defence team. She asked

“Mrs Tully, the incident itself when you were attacked, do you have any clear recollection of what happened to you?”

To this question Mrs Tully replied

“No, I am sorry I don’t”.

She was asked if she had thought about trying to have her memory helped in someway. She explained that she had considered the possibility of regression therapy but had rejected it.

Mrs Tully’s answer that she did not have any clear recollection of the events of the relevant night was further confirmed by a formal admission made by the defence. The crown had intended calling a doctor to say that Mrs Tully had suffered from retrograde amnesia as a result of the attack and that it was unlikely that she would be able to give any account of the relevant events in the future. So far as the prosecution and the police were concerned Mrs Tully had no memory at all of the events surrounding her injuries. The need to call the doctor was avoided because the defence made the following admission:

“It is admitted that as a result of head injury sustained by Valerie Tully on the 5^th January 1998, from which she has made an incomplete recovery, she has no memory of the events of that night, and it is unlikely that she will be able to give any account of those events in the future.”

Mrs Tully was asked to and did deal with a number of aspects of the case. For example, she was asked about the pole which it seems clear was used in the assault upon her. She explained that it was a broom handle. She was asked where it was normally kept and she explained that it was kept in the bedroom for fishing out objects that had fallen behind the bed.

She also dealt with a hammer found in the kitchen, the fire alarm, the dispute with neighbours and the financial situation of her husband and herself.

Mrs Tully was cross-examined by the prosecution. As indicated they were wholly unaware that Mrs Tully had ever told anyone that she had any recollection of the relevant events. The questions, therefore, were put very much on this basis, seeking any earlier recollection that might assist or asking about normal practice within the home. They undoubtedly afforded Mrs Tully many opportunities to make clear that she had some partial recollection of events if she herself believed that any such recollection as she might have had was reliable. She did not avail herself of any of these opportunities.

It is clear from a reading of the transcript that Mrs Tully was in no sense adverse to the appellant’s interests. Indeed she was clearly supporting him whenever she could as one would expect of a wife who genuinely believed in the innocence of her husband. Nor in any sense was Mrs Tully overawed by the occasion. When she wanted to say something, she quite rightly insisted on being given the opportunity to say it, even commenting about the way in which she had been sworn to give evidence.

Three further features of Mrs Tully’s evidence merit specific mention. The first is that cross-examination of Mrs Tully was not concluded on the day that she was called to give evidence and the judge in accordance with normal practice warned her not to talk to anyone about her evidence overnight.

The second is that she was asked about her dog and whether she would expect her dog to bark if there was an intruder. She replied that she would not but added “she may in circumstances, put to real perhaps terror, I don’t know, have got up on the bed and tried to wake Jack”. Clearly she was not saying that she knew that on this night the dog had got up onto the bed in a state of terror, she was putting it at no more than a possibility.

Finally at the end of her evidence Mrs Tully launched into a lengthy outburst which ended with her in tears. A flavour of what she said is apparent from the opening sentence, “if I tell you I am fighting my own corner, because I am determined that whoever did this to me, and my husband didn’t, and believe me I can tell you he didn’t, because I know in here he didn’t”. It is perhaps remarkable that if Mrs Tully had a clear recollection herself of any intruders which she believed was reliable that she could have stopped herself in this outburst from making some reference to the intruders, no matter what anyone else had said to her before.

That concludes our lengthy review of the evidence heard by the jury and upon which they convicted. The summing up was without flaw and clearly set out the evidence and the considerations on both sides. The jury convicted. The sole ground of appeal is that there is now evidence from Mrs Tully, not heard by the jury, which it was submitted the court should now admit and in the light of which conclude that the conviction of the appellant was unsafe.

We think that it is desirable that we should set out the history of how Mrs Tully came to make her most recent statement in so far as that history is known to us. In doing so, it is necessary to make clear that there are gaps in our knowledge as to all that occurred. It is the experience of this court that in circumstances such as these, appellants almost invariably waive their right to legal privilege so that they can fully inform the court of the events leading to the application to call further evidence. There is, of course, no compulsion upon an appellant to do so, and in this case the appellant has decided that he does not wish to waive his right. We were sufficiently concerned about this aspect of the case to raise the matter at the outset of the hearing and to make clear that if these matters were not revealed to us, we could only work on the basis that the original legal team had acted properly throughout and that their decisions were justified by the totality of the information that was available to them. Counsel, wisely in our view, asked for an opportunity to consider further the matter, but having been granted that opportunity informed the court that the appellant’s position was unaltered. We, therefore, have not heard from either counsel or the solicitor who represented the appellant at trial, nor have the prosecution had any access to these lawyers or to any material that might have cast light upon their decision making process other than that revealed by the appellant to which we will now refer.

Mrs Tully was first seen by the police during the period while she was still in hospital and was seen on a number of occasions between the 10^th and 26^th January 1998. She had no recollection of the events of Sunday the 4^th January nor of the early hours of Monday the 5^th save that she had some recollection of cooking a meal on the Sunday. From the outset, notwithstanding that she had no recollection of the events of the relevant night, she was adamant that the appellant could not be responsible.

On the 11^th March 1998, the notes of her general practitioner record “wants regression therapy to clear husbands name - wants appointment expedited”.

On the 15^th July 1998, the Crown Prosecution Service wrote to solicitors then acting for Mrs Tully saying that they wished to take a statement from Mrs Tully as the police were having difficulty in persuading her to supply one.

On the 28^th August 1998, the solicitors provided such a statement which they themselves had taken. The cover letter said:

“We wish to make it clear that our client has never refused to make a statement and has always indicated a willingness to co-operate to bring the perpetrator of the crime against her to justice. She has made it clear throughout that she has no recollection of events and her ability to assist therefore has been extremely limited. Unfortunately Mrs Tully felt it was necessary to enlist my services at an early stage as the manner in which the investigation was being conducted was leading her to feel pressurised and intimidated. She felt her recovery was being jeopardised and she required protection from an independent party.

It is unusual and regrettable for a victim to be placed in this position. ... Furthermore she has made it clear on numerous occasions, including we understand under oath when giving evidence in Mr Tully’s bail application, that should her memory return so that she is in a position to provide material information she will notify all parties concerned at the earliest opportunity.”

The statement itself recorded:

“On that date an incident happened as a result of which I was seriously injured I have no recollection of that incident whatsoever. Prior to the 5^th January 1998 the last clear memory I have is of Friday the 2^nd January 1998 when I spent the day with a friend. As to events after that date I have no clear recollection at all until the last week in which I was in Worthing hospital and I have patchy memories of that period and have been visited in hospital by various family members, medical staff and the police. My memory of that period is extremely patchy and I could not say what was said on any of those visits I have a vague recollection of waking up in Worthing hospital sometime after the incident but I cannot say when or how long after the incident that was.”

The Crown Prosecution Service in a further letter indicated that there were matters other than the actual events of the relevant night upon which the police needed assistance and still requesting the opportunity to take a statement from Mrs Tully.

On the 23^rd November 1998 Messrs Brothers and Maye, who have since become the appellant’s solicitors for the purposes of this appeal, wrote to the Crown Prosecution Service on Mrs Tully’s behalf. The letter included:

“There appears to be a number of issues which are unresolved and our client would like to resolve as quickly as possible with both yourselves and the police in relation to the proceedings against her husband. Whilst our client has no wish to be obstructive she feels she is being pressured to make a further statement to police although she has submitted one already through her previous solicitors she does not feel there is any other material evidence she can give.”

The first record of any alteration in that position comes within the medical evidence. In a letter dated the 15^th March 1999 Dr Bradley, a consultant neuro psychologist, records the following:

“Mrs Tully telephoned my secretary earlier this week to ask if she could be seen urgently so that a copy of my report could be sent with other documents to the judge in her husband’s trial. Obviously I wondered what was going on since no request for a medico legal report had been made by her and her husband’s solicitors. I spoke to both solicitors and to Mrs Tully herself at some length. It appears that Mrs Tully has recently had some “flashback” memories of the episode in which she was injured. She has ‘recalled’ seeing intruders in the house but feels that no notice will be taken of her statements; it will be assumed, she feels, that she is just desperate to ensure that her husband is not convicted. She is indeed desperate to help him if she can, but is also convinced that these are genuine memories. She emphasised that she does not want to try to recover memories which do not return naturally; her concern is to establish whether the memories she has are genuine.”

The contact between Dr Bradley and the appellant’s then solicitors led those solicitors to write to Mrs Tully on the 10^th March 1999. It is quite clear from that letter that the solicitor had had earlier contact with Mrs Tully and indeed she addresses her by her first name. The letter included:

“I do not know what you had in mind, but a witness in a case simply cannot approach the judge behind everybody’s back. If you succeeded in communicating with him he would have to disqualify himself from the case. You could find yourself in trouble as well, although I would hope that you would be treated compassionately as you are clearly acting in good faith. Please do not try this again you have your own solicitor and he will be happy to advise you as to the correct procedure.”

Mrs Tully in subsequent statements refers to that letter and is highly critical of the solicitor for writing it, describing it as an “awful letter”. We do not consider that criticism to be justified and believe that the solicitor was doing no more than to try to preserve the integrity of the trial. There may, however, have been a degree of misunderstanding as to what it was that Mrs Tully intended and the solicitors make quite clear that they accepted that she was acting in good faith.

Perhaps more importantly, the letter then goes on to say:

“You remember that I sent you a draft statement some weeks ago. I am still waiting for you to return it either signed or with corrections. If anything is wrong or misleading, please correct it. If there is anything you would like to add please do so, or, if this is likely to take some time, you can prepare an additional statement later. I would like to have it as soon as possible as there are pieces of information in it that counsel needs to know so that she can prepare for trial, so the sooner she has your statement the better. It is your statement, so please put anything you like into it. You must be aware, however, that when you come to give evidence in court, there are rules that have to be observed as to what can and cannot be given in evidence and you will be expected to stick to these.”

We have not seen the draft statement or any signed statement with or without corrections made by Mrs Tully. That is a result of the fact that privilege has not been waived.

On the 11^th March 1999 – no doubt upon receipt of the letter of the 10^th March. Mr and Mrs Tully together went to see Mr Brothers who had advised Mrs Tully in the November. They were expressing dissatisfaction with the appellant’s solicitors. In the course of that meeting Mrs Tully said that she had some memory of the man who had come down from her loft. Mr Brothers advised them that it was really too close to trial to change solicitors without putting back the trial date. He also advised Mrs Tully to bring the information she had to the attention of her husband’s solicitors.

The next document to which reference must be made is a significant document in the case. It has been produced by the appellant’s solicitor under the reference MTB1. It is a statement made by Valerie Tully in the handwriting of the appellant. She has indicated that the words were hers and that they were dictated to her husband who took them down for her. Exactly what happened to that statement is not clear. However, by reason of fax marks made on a copy of the statement, it is clear that it reached the hands of the appellant’s solicitors and that they in turn conveyed it to counsel instructed to represent the appellant at trial.

The critical part of the statement comes on page 8 under a heading “Flashbacks”. It reads:

“I became aware of a strange smell whilst in hospital. The smell is always there when I have flashbacks. I call it a smell because I don’t know how else to describe it. At first I thought it was part of the hospital life. However, the smell/sensation was still with me at the nursing home and at times is still there today. I started waking up at what I believed to be between 2-3am in the nursing home. Because I felt safe in the security of the nursing home I would go back to sleep. From the nursing home I moved to my sister-in-law’s home. The waking up between 2-3am continued. One night after I had gone back to sleep I came to thinking “swim-swim-hold your breath- hold your breath”. I thought I had had a nightmare. However this happened again at a later date. This time I was holding my breath on waking. Can’t understand this. Some nights later I awoke, went back to sleep and awoke again sweating shaking and feeling frightened. I woke Jack up who cuddled and who was concerned and talked to me until I eventually went to sleep. Some nights later the same scenario. But I was waiving my arms about very agitated. This time I hit myself and Jack. Unbeknown to me Jack was already awake and didn’t know how to deal with it. He allowed me to awake naturally. Comforted me and I went back to sleep. All through these flashbacks I was desperate for a drink. When we moved to our present home fitted with an alarm and panic button these flashbacks became more frequent. I had hoped the security might help, but it didn’t. On waking up, I noticed that if I walked around for a bit with Jack’s help and then went back to sleep it didn’t happen again that night. It was on these walks we noticed that the time was always between 2-3am. The lesson learnt was to stay awake for an hour or so and then go back to sleep. I appeared in Worthing Magistrates court when Jack was given unconditional bail and told these facts to the court and the magistrate. I was surprised at the end of Nov 98 to get a flashback so graphic. I was in bed shaking and feeling ill wanting a drink. My head ached and my eyes would not focus. I was sitting up trying to wake Jack and could not. He was laying on his back, more off the bed than on. I shook his shoulder again and again but he would not wake. I sat with my arms around my knees and my head on my arms. I don’t know for how long. I was then aware that I was waking up and had a headache. The image had just slipped away. At the beginning of Dec another part of the flashback. My arms around my knees my head resting on them. I was trying to wake Jack again by banging his chest with my fist. He still would not wake I was then aware Gem was on the bed close to Jack between his body and his arm up by his armpit. The image slide away as before and I was lying awake again with a headache. Unlike previously I wasn’t sweating or frightened. Over the Christmas holidays away at my daughter’s in Harlow flashbacks came again. The first came with me standing holding onto my sliding wardrobe frame. My eyes were starting to focus and my head had stopped banging and was now only throbbing. I don’t know how long I had been there. The flashback went. The following night another flashback. This time I was holding onto the bedroom doorframe looking out into the hall. I could not stand unaided. I was looking at a person I think was a man standing by the loft ladder which was down out of the loft in a vertical position (i.e. not fully extended). This person’s hand was on the ladder and their back towards me. I think the person was looking up into the loft was about my height and wearing dark clothing. As I stood there looking another figure came down out of the loft. My impression was that it was a man he swung himself out of the loft to some way down the ladder one hand on the ladder and the other on the framework. As he descended he turned saw me and lept off the ladder towards me he appeared to be tall. I was able to see these figures because it seemed to me there was light in the loft and some light in the lounge the door of which was open. As the figure came at me across the hall the flashback ended and I won’t mind if I never see the conclusion of this part.”

A further hand-written statement made by Mrs Tully at about this time has also been produced (MTB2). All that is known of the provenance of this document is that it was forwarded by the solicitors acting for the appellant at trial to his present solicitor. We are told that it was written by a relative of Mrs Tully at her dictation.

The contents of the statement enable one to say that it was not written pre-trial. Mrs Tully referred to being shown photographs in court and spoke of remembering other things “later that evening”. Thus one can be certain that it was written after the first day of her evidence and it seems most likely that it was shortly after the conclusion of the trial. The new material in this statement at page 6 read:

“As I stood in the bedroom doorway at 41 looking into the hall I saw that there was a light on in the lounge, but not a bright one, and that the door was open. The dining room door was also open + the front door curtain was pulled back open. There was movement in the loft and a leg descended about a third of the way down the ladder. As I watched a hand took hold of the ladder + a second leg followed the first. And I could see the lower half of the body. The person moved into a crouching position on the ladder as if to speak to the other person standing in the hall. In doing so he turned to face into the hallway + saw me standing in the doorway. He jumped off the ladder + landed halfway down the hallway. Without thinking I reached down for my “broomhandle” which was wedged behind the bedside table. I grabbed the end of it + brought it up from my hip + jabbed it in his face. I think I caught his eye. He paused + called me a “bitch” I stepped back + shouted to Jack “Jack, Jack, for gods sake help me”, somehow my voice had come back. As I shouted I stepped back, caught my foot in the dog’s bed and fell sideways onto the bed. He took the stick + lashed out at me hitting my right arm just above the elbow. He had the stick in his left hand + hit me again across my face this time. I was on the edge of the bed clutching the bedclothes with my left hand. I remember feeling a third blow but no more. The man who assaulted me was 30-35, white, about 6 feet 6 inches tall with short dark straight hair. He was wearing dark tracksuit type clothes + dark gloves. If I saw him again I would recognise him. Because of this I live in fear.”

In November 1999 the appellant changed his solicitors and instructed Mr Brothers. It is unnecessary to recount the detail of what occurred thereafter until the 13^th November 2000. On that date Mr Brothers took a proof of evidence from Mrs Tully. The account then given by Mrs Tully was essentially that given in the documents MTB1 and MTB2.

In this statement Mrs Tully sought to explain how her recollection had gradually returned. She said that her memory had not started to return until April 1998. It is not easy to reconcile that assertion with her statement made in August 1998 that she had no recollection at all of events.

Mrs Tully claimed that the appellant’s original solicitor had told her that she was only going into the witness box as a character witness. However, it is clear that the evidence she gave in chief went way beyond a mere character witness. Mrs Tully went on to assert that the solicitor “would not listen to me about the details I had recalled even at that stage. She never took a statement like this from me. She only took a statement from me after the case had finished”. Those assertions are not factually correct, the solicitor had taken a proof of evidence which was forwarded for correction with an invitation to add anything that Mrs Tully wished. The solicitor had then received the hand-written statement (MTB1) and had faxed it urgently to counsel.

Mrs Tully explained how on seeing photographs in the witness box she had had further recollections both then and that evening. She said that because of the judge’s warning not to discuss her evidence with anyone, she had not been able to reveal the additional detail that she now recalled.

On the 9th January 2001 Mrs Tully went to see Dr Michael, who had been asked to advise about the reliability of Mrs Tully’s recollections. Dr Michael asked her to give her account of what she remembered. He records:

“The account Mrs Tully gave to me seem to coincide in some detail, with the report she made two months ago, and the fact that she is an unusually circumstantial historian is helpful in that respect. The reason that she seemed to be in such a muddled state when she woke up, and apparently so slow to recognise the significance of intruders remains obscure. Also her apparent inability to wake her husband remains unexplained, although I have no information about his health, apart from the fact that Mrs Tully told me that he did have a big bruise on the forehead afterwards.”

Whilst there is no suggestion that Mrs Tully saw that report, it seems likely that Dr Michael would have discussed the lack of a reason for her confused state and her inability to rouse her husband with her. Subsequent evidence suggests that she then came up with a theory to match these matters.

On the 25^th January 2001 she saw another doctor, Dr Nigel Legg, for a further report. In his report he includes:

“There were various parts of her story about which she felt puzzled, particularly why she felt so ill when she awoke in the night, in the wrong part of the bed. She had thought about this, and had a theory to explain it, but made it clear that this was her own idea and she had no way of telling whether it was true.”

On the 14^th March 2001 Mrs Tully made a further statement to Mr Brothers. She said that on the evening of Sunday 4^th March through into the early hours of the following day, she had suddenly recalled parts that she had been unable to recollect before, these essentially dealt with how the incident had all started. Her account of these fresh recollections was as follows:

“On 5^th January 1998, I was aware of waking up. I felt tired but I was in the position that I normally sleep in, which is on my face, more on my front than on my back. All I recall at first was feeling tired and a lot of movement going on in the bed. I raised myself up by pushing my arms to turn myself round and I was roughly pushed down again into the bed. Somebody pushed me with a weight or hand on my shoulder which turned me over onto my back. It was pitch black, I couldn’t see anything, except possibly vague shapes. As I fell back into the bed a very loud voice from Jack’s side of the bed, which was not Jack, shouted out “for fuck’s sake bloody well get in here and help me”. Jack was thrashing about and moving at the same time making a noise which I can only describe as grunting like a sea lion. It was not his normal voice. The man was having a considerable job trying to hold Jack and me. I didn’t see it but another man came into the room. I presume it was a man by his size and strength and this person immediately sat on me over my legs. He literally sat on my knees and legs. I was then aware of myself thrashing about with my arms and my legs were pinned to the bed. In fact I remember my bosoms hurting with the weight. My left leg was hurting the most and that is now the one which requires an operation. I should point out that both of my knee joints had been replaced prior to the incident and were fine. However, since the incident I have had a lot of problems and as I say I am now awaiting a further operation with regard to my left knee which was the worst damaged in the incident. As a result of the weight on my chest I was having trouble breathing properly. I tried to push out from myself. That’s when both of my arms were grabbed and shoved up over my head. There was room for my arms to go there without them touching the headboard so I must have wriggled down the bed in some way. The man was then lying literally across my body and my face in order to carry out this manoeuvre. At this point the man on top of me moved off slightly easing the pressure on me but only leaving me with movement in my head. Immediately a cloth was put over my face. This could have been done by the other man who was still on the bed dealing with Jack who had by this time completely stopped moving and was making no noise at all. As the cloth came onto my face I managed to move my head away to my left. At that stage I realised what was going on and when I smelt what was obviously on the cloth. It was a very strong smell which I had not smelt before and I don’t know what it was. As I smelt it in that split second while the cloth was on my face I could feel the effect it was having. I yanked my head away. All I could do was say to myself “hold your breath, hold your breath, swim, swim”. Earlier in my life I had been able to swim the length of an olympic size pool under water without coming up for air. My intention was to avoid the substance making me completely unconscious. However this substance did have an effect and after I had been saying to myself “swim, swim,” I then can’t remember anymore until I came to as referred to in my other statement of the 13^th November 2000.”

The evidence that the appellant sought to call before us was a combined version of the statements of the 13^th November 2000 and the 14^th March 2001.

There was a further application to call medical evidence before us. However, it is accepted that the only relevant parts of the medical evidence are to the effect that whilst it may or may not be surprising for Mrs Tully to be recalling events in the way in which she has described and continuing so long after the traumatic episode, recall in such circumstances cannot be ruled out as a medical impossibility. Thus we approach the case on the basis that a person placed in the position of Mrs Tully might have remembered events in pools of recollection and that process could have gone on as long as three years after the event.

In deciding whether to admit evidence not called at trial, the court has to have regard to Section 23 of the Criminal Appeal Act 1968, the section that empowers it to hear such evidence.

That section enables the court to hear evidence “if they think it is necessary or expedient in the interest of justice”.

Section 23 (2) provides:

“The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to –

a) whether the evidence appears to the court to be capable of belief;

b) whether it appears to the court that the evidence may afford any ground for allowing the appeal;

c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”

The fourth matter to which Section 23 (2) refers is clearly of importance in this case. Generally speaking, a defendant will be required to call all the evidence upon which reliance is to be placed at his trial. No system could operate effectively if a defendant could run his trial in one way and then come to the Court of Appeal and suggest he might have done better if he had run it in a different way. For example, a defendant could not be permitted to choose not to give evidence at trial and then, if convicted, go to the Court of Appeal and argue that if he had given evidence the jury might have come to a different conclusion. It is for a defendant and his legal advisors to decide what evidence to deploy at trial and the Court of Appeal will not in normal circumstances allow a second bite of the cherry if an unfavourable outcome follows.

Clearly, where evidence is not available to a defendant at trial, different considerations apply and the court may the more readily conclude that if evidence comes to light at a later date which might have influenced the decisions of the jury that the conviction of the defendant without his having had an opportunity to make use of that evidence renders the conviction unsafe.

This case gives rise to an unusual halfway house. Mrs Tully’s evidence was available to the appellant and he could have placed it before the jury. That evidence, as it would have been anticipated, would have included the vitally important evidence that there were intruders in the house at the material time. However, the evidence which Mrs Tully could now give does go significantly further than that which could have been anticipated at the trial.

Mr Anelay on behalf of the appellant contends that the interests of justice therefore require that that evidence should be heard by the court and that unless the court concludes that the evidence is not credible should result in the conviction being set aside with a re-trial being ordered so that a jury may consider it along with the rest of the evidence that persuaded the original jury to convict.

Mr Camden Pratt QC on behalf of the prosecution submits that this is a case where the appellant did call Mrs Tully to give evidence but did not elicit from her any recollection she might have of the night of the relevant events. Indeed counsel asked a carefully phrased question as to whether Mrs Tully had “any clear recollection” (our emphasis) to avoid placing anything she might think she recalled before the jury. Mrs Tully herself gave evidence that she had no clear recollection. In those circumstances, notwithstanding the further recollections that Mrs Tully now asserts that she has, the appellant having failed following his original tactical decision, should not be permitted to try again adopting a different approach.

Mr Pratt points to the fact that no explanation has been advanced for the decision not to elicit such evidence as was available from Mrs Tully and argues that the court can only approach the matter, since it is expressly accepted that no criticism can be made of the conduct of the original legal team, on the basis that this was a properly informed decision which reasonable counsel could properly make and which was made in accordance with the appellant’s instructions.

Mr Pratt further invites the court to look at the additional material available since that decision was taken and to conclude that far from suggesting that, if counsel had been aware of Mrs Tully’s subsequent statements, it would have led to a different approach. It would, it is submitted, inevitably have reinforced the views of counsel even though counsel’s reasoning cannot be before the court because of the maintaining of legal professional privilege.

Mr Pratt invites consideration of the way in which the further “recollections” have emerged. Whilst medically it is possible for additional parts of the events to be recalled by Mrs Tully, the evidence suggests that whilst they may be events that Mrs Tully now genuinely believes to be true, they are in all probability products of her inability to countenance that her husband attempted to kill her rather than real recollections. In particular, he points to the way in which the most recent statement came about. First there was a discussion with Dr Michael during which it was clear that “obscurities” in her account were discussed. Shortly afterwards, she saw Dr Legg and had by then come up with a theory to resolve the difficulties but as she put it she had “no way of telling whether it was true”. Then within a relatively short period she is seeing the solicitor and telling him that she has had a sudden recollection, for no apparent reason, which provides a clear answer and no doubt coincided with her earlier theory.

Mr Pratt then submitted that the further recollection explaining features which until then were unexplained, conflicted in a dramatic way with the appellant’s own account as he had told it to the jury. If Mrs Tully’s final version is correct, she awoke to find her husband under attack in the bed beside her. He was not lying peacefully but fighting back to the extent that one assailant summoned assistance from another. Eventually he was subdued and the intruders then turned upon Mrs Tully. The appellant for his part knew nothing of any attack upon him in bed or of the considerable struggle that he was said by his wife to have put up by way of resistance.

Further to this, it is submitted that there are other major difficulties with the accuracy of this recollection. The evidence of the timing of the start of the fires and how long they were ablaze is difficult to reconcile with the version that Mrs Tully now puts forward nor does this account overcome many of the problems that faced the defence, such as the evidence of the broken glass and the nail varnish.

In addition Mr Pratt submitted that Mrs Tully would have great difficulty in explaining how it was that she told the jury that she did not have any clear recollection of events, if all along parts of her account were clear to her and she was sure they were right.

In these circumstances Mr Pratt submitted that if counsel considered that the evidence of Mrs Tully should not be relied upon at trial, inevitably the conclusion would have been the same even if counsel had been aware that Mrs Tully had had the further “recollections” that she now seeks to put before the court.

We have considered with care this difficult matter. Our task is not made easier by not being able to be a party to the information available to counsel at trial or to hearing from counsel exactly what the reasoning was behind the decision not to ask Mrs Tully any questions about her “recollections” of the events.

We accept the submissions made by Mr Pratt that we must work on the basis in those circumstances that there were good reasons why counsel decided that it would not help the appellant to invite Mrs Tully to tell the jury of her “recollections” about the night in question. As we earlier made clear, this evidence, if counsel viewed it as being capable of belief, was of critical importance to the defence as providing the only confirmation that there were intruders in the premises. The decision not to lead that evidence cannot have been taken lightly and can only have resulted from a clear conclusion that helpful though the evidence might have appeared on its face to be, there was no realistic prospect that it might be accepted.

It seems to us that in those circumstances we should go on and ask whether if counsel had the information now available to us as to Mrs Tully’s subsequent “recollections”, together with the information to which we are not a party that resulted in the original decision, a different approach might have been adopted.

We are satisfied for the reasons advanced by Mr Pratt that any careful studying of that material could not possibly have persuaded counsel to adopt a different approach. In particular, the point that the latest version is an apparent dramatic conflict with the defence case could hardly have provided the sort of reassurance necessary for a change of approach to be adopted.

The fact that Mrs Tully was not asked any questions about her “recollections” of the events does not in our view stem from the fact that the entirety of her evidence as she can now give it was not known but rather from the defence team’s evaluation of the value to be attached to the evidence that she could give. There is nothing to suggest that that evaluation was not right and nothing in the subsequent material would be likely to do other than raise even greater doubts about the reliance that could be placed upon Mrs Tully’s recollection.

We wish to make clear that we have arrived at these conclusions without in any way doubting the sincerity of Mrs Tully. She was placed in a dreadful position, she suffered serious injuries and as a result had no recollection of the events leading to those injuries. She was told that someone, whom she could not believe would have harmed her at all, had tried to kill her. The danger in such circumstances that she should falsely come to believe thoughts that were passing through her mind were genuine recollections was an obvious one. We rather think the history of the latest recollections well illustrates what has happened in this case. Thus it is not the genuiness of her belief that is in issue but rather the reliability of what she now believes occurred.

The approach of the defence team seems to us likely to have been a perfectly sensible one, namely that the best interests of the appellant would be served if they called his wife but confined her evidence to general details that might assist their case and placed before the jury her profound belief that her husband could not have done such a thing to her.

In our view if all the material now available had been available at trial, we are satisfied that the case would have taken exactly the same form that it took then and that as a result the outcome would have been no different.

Having therefore considered this matter most anxiously, we were of the clear view that it was neither necessary nor expedient in the interests of justice to admit the evidence from Mrs Tully.

That decision effectively concluded the appeal because without the evidence no appeal could succeed and we, therefore, dismiss the appeal.

We should perhaps finally make clear that having approached this unusual case with a completely open mind and having reviewed all the material before us, we do not consider that there is anything to cause us to believe that this conviction is unsafe.

- - - - - - - - - -

LORD JUSTICE KAY: In this case we have already made clear that we refuse permission to call evidence sought by the appellant, and as a consequence of that it follows that since there were no grounds that remain, that the appeal would be dismissed. We now hand down our reasons for our decision and they have been made available to counsel.

Is there anything anybody wishes to raise?

MR MERCER: My Lord, no, not on behalf of the appellant.

MR PRATT: My Lord, no.

LORD JUSTICE KAY: Thank you both very much indeed for your help in the case. We did find it substantial.

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Tully, R v [2002] EWCA Crim 18 (25th January, 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/18.html Cite as: [2002] EWCA Crim 18

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th January 2002