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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Gorski v R [2012] NICA 5 (30 March 2012) URL: http://www.bailii.org/nie/cases/NICA/2012/5.html Cite as: [2012] NICA 5

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Neutral Citation no. [2012] NICA 5	Ref:	MOR8463
Judgment: approved by the Court for handing down	Delivered:	30/3/12
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND _______ THE QUEEN -v- HENRYK GORSKI _______ Before: Morgan LCJ, Higgins LJ and Coghlin LJ ________

MORGAN LCJ (delivering the judgment of the court)

[1] On 9 November 2007 the applicant was committed for trial at Antrim Crown Court on the single count of murdering Shirley Finlay on a date unknown between 17 September 2006 and 20 September 2006. He was arraigned on 14 December 2007 and pleaded not guilty. His trial took place before Hart J sitting with a jury and he was convicted on 21 October 2009. On 4 December 2009 the learned trial judge sentenced the applicant to life imprisonment with a Life Sentence Tariff of 20 years.

The Evidence

[2] At all material times, the applicant lived in flat 5A Hill Street, Ballymena. Roseanna Galloway gave evidence that she frequently saw Shirley Finlay sitting on the top step at the door to 3A and 5A Hill Street during the day. The last sighting of Shirley Finlay alive was at about 10pm on Monday 18 September 2006 when she was seen around the entrance to the Lidl store on Castle Demesne Link, Ballymena. At the time she was walking away, and some distance, from Hill Street, Ballymena. Her body was found at about 3pm the next day behind a low wall at the rear of the car park in Mount Street, Ballymena. She was naked and wrapped in a duvet cover and two plastic bin liners together with a grey fleece jacket, a red top and a towel.

[3] Dr Bentley, Deputy State Pathologist, carried out the autopsy of body. He concluded that death was due to strangulation. He expressed the view that the multiplicity and distribution of the bruises were consistent with pressure being applied by a hand or hands, that is manual strangulation, although the use of a ligature could not be completely excluded. The presence of bruises on the neck indicated that death was not instantaneous as such bruising can only occur while the heart is beating. The fact that pressure must have been sustained for a period of time was confirmed by the presence of bleeding into the coverings of the eyes (conjunctival haemorrhage). There was bruising of the left side of the face and scalp, a black eye on the left side and a cut under the left eye. While some of these could have been sustained as a consequence of a fall or a collapse, overall the features would suggest that blows such as punches were delivered to the face. Also, there were a few bruises of the lips, again suggesting either a blow or blows to the mouth or forceful pressure being exerted on the mouth. There were multiple bruises of both upper arms most of which had a circular discoid appearance strongly suggesting fairly forceful gripping of the upper arms. There were a few bruises of tissue under the skin of the back, consistent with the back of the body making forceful contact with an unyielding surface such as the ground.

[4] A total of six finger or palm prints were found on the plastic bin liners in which the body had been placed. Five of these prints belonged to the applicant. Of these three were found on the outer surface of the black bin bag placed around the deceased's feet and two were found on the outer surface of the black bin bag placed around the upper part of the deceased's body. The sixth print belonged to an unidentified person.

[5] Fragments of grey paint were found on the blue duvet cover used to wrap the body. Forensic evidence indicated that these fragments were of a specialist paint used to coat Triax satellite dishes, used by BskyB, and were indistinguishable from similar grey paint fragments found on the floor inside 5A Hill Street, the dust bag of the vacuum cleaner found in the flat, the fire escape, the lower flat roof and a child's pram found on the lower flat roof of the same premises. A BSkyB satellite dish was also found in 5A which had been spray painted black using aerosol paint also found in the flat. Mr. Armstrong, Forensic Scientist, gave evidence that there was a close association between the duvet cover and the source of the grey paint which in his opinion was the satellite dish found in 5A. He went on to give examples of how the transfer could have taken place including the duvet cover being placed on the ground to protect the floor and the dish placed on top of it and prepared for painting by brushing to remove rust, or the duvet being used to clean the satellite dish after it had been brushed in preparation for painting.

[6] A black coat was found approximately three metres from the body. Forensic analysis showed the presence of DNA attributed to a female who was identified as the applicant's ex-girlfriend. The applicant admitted that she had lived with him for a considerable period of time. Fibres found on the towel which had been wrapped in the duvet cover with the body were indistinguishable from fibres of similar or the same carpets as those in the living room and communal staircase of 5A Hill Street. Mr. Logan, Forensic Scientist, said this would support the proposition that the towel had been in contact with the carpets at 5A.

[7] Forensic analysis of the mitochondrial DNA of a hair found on the mat inside the internal door to 5A gave moderately strong support to the proposition that it belonged to either the deceased or one of her maternal relatives. However, the forensic scientist agreed that it was possible that this hair could have been carried into the flat from outside on the sole of a shoe or by some other mechanism.

[8] Dr. Ruffell, Forensic Geologist, examined the results of an electron microscope analysis of samples taken from the duvet cover and samples taken from the rear fire escape of 5A and concluded that the abundance of iron carbonate in both samples was consistent with the duvet cover being in contact with the fire escape steps at some point or having a common source. He also examined the sample taken from the applicant's shoes and from the site where the body was found and concluded that there was insufficient chemical evidence to definitely say that the shoes are linked to the site at Mount Street where the body was found.

[9] Professor Emberlin, Director of the National Pollen and Aero-biology Research Unit at Worcester University, analysed pollen and algae samples taken from the site where the body was found, the duvet cover, the flat roof at the rear of 5A and the applicant's shoes. She found no link between the pollen at the site of the body and the pollen on the applicant's shoes and could only infer a possible link between the pollen on the shoes and the flat roof. Also, she was only able to infer a possible link between the algae taken from the duvet cover and algae found on the flat roof.

[10] In his police interview the applicant denied any knowledge of the duvet cover and claimed that he had not used plastic bin bags for a long time. When he came to give evidence, however, in relation to the duvet cover, he said that he thought it belonged to his neighbour as he often saw it lying on the flat roof and occasionally picked it up and hung it on the railings. He also said he had used the duvet cover when he was cleaning down the satellite dish which he had bought for £3 at a market. He said that he had used the duvet cover to cover the pram out on the flat roof and then used an electric drill with a brush head, which he had borrowed, to clean the dish. In relation to his fingerprints on the plastic bin bags, he said that the only time he had touched such bags was when he packed away his ex-girlfriend's belongings when she left him. He said he placed the two bags of her belongings on the fire escape and after a couple of days they had disappeared.

[11] In his evidence, the applicant claimed that he did not know, and had never met, Shirley Finlay. He further claimed the relationship with his ex-girlfriend had ended very bitterly in August 2006. She stole £820 from him at the time and was now, along with others, framing him for this murder. He stated that he never approached women in the street of any age, one of the reasons being that he could not speak English.

[12] Danielle Loughran and her aunt, Noreen Glendinning, gave evidence that in early September 2006 they were sitting on a wall at the entrance to Fairhill Shopping Centre, Ballymena. It was warm day and Danielle was wearing a vest top. They were approached by a man whom they described as foreign. He threw a cardigan at Danielle telling her to cover up her breasts. This man then walked away and went through the door for 3A and 5A Hill Street. However, he emerged five minutes later, approached the two females again and this time said, "Come over for a drink and I'll keep you warm". Ms. Glendinning told him to go away. She noted that on the second occasion he could speak very fluent English. The applicant conceded that he had on one occasion offered a garment to a girl to cover herself because it was cold. He emphatically denied inviting any girls to his flat for a drink.

[13] On Thursday 14 September 2006, Amy Lester and Kayleigh Adair were at Kayleigh's eighteenth birthday party at Milano's Restaurant, Thomas Street, Ballymena. Amy, who was 14 at the time, went out into the street where she began to speak to a foreign male. She said he took her by the arm and directed her down to the door of 3A and 5A Hill Street where he opened the door and gestured for her to go up to the flat. Kayleigh then arrived and the two girls walked away.

[14] The applicant called evidence from Mr. Cosh who said that as he was cycling to work at about 4am on the morning of Tuesday 19 September he cycled past the car park on Mount Street. While doing so he noticed a 4x4 vehicle parked on the street with its tailgate lowered and heard a man, whom he describes as being six foot tall and in his mid-twenties, saying "Wait a minute, there is somebody coming".

[15] The statement of Roisin McMahon was admitted as hearsay on the grounds that she was unfit to attend court. In her statement she said that on Tuesday 19 September she got out of bed at about 3am in order to go to the toilet. When in her bathroom she heard piercing screams from a woman. She looked out of her window to see for a split second a woman whom she thought was Shirley Finlay running along Kinhilt Street towards Waveney Road being chased by a man. She heard more screaming from the woman which then became muffled. She described the man as being much taller than the woman and he seemed to have really long legs.

The grounds of appeal

[16] The amended grounds of appeal argued that the conviction was unsafe and should be quashed for the following reasons:

(i) That the jury was not directed by the learned Trial Judge as to the ingredients of the offence of murder.

(ii) That evidence of the applicant's bad character was wrongfully admitted at trial. It is undeniable that the consequence of admitting this evidence affected substantially the decision of the Applicant to give evidence at trial.

(iii) That hearsay evidence of the content of a phone call made anonymously was wrongly excluded from the evidence at trial.

(iv) That the absence of full disclosure by the Prosecution disadvantaged the Applicant's legal representatives so that no proper inquiry was made at trial of the reliability of important forensic evidence, particularly the strand of hair found in the Applicant's apartment on the 6th October 2006.

(v) Further, the absence of full disclosure by the Prosecution disadvantaged the Applicant's legal representatives from calling evidence to rebut Crown evidence that the Applicant was capable of speaking English.

(vi) That the evidence as presented at trial was insufficient to render the conviction safe.

The direction on murder

[17] It is common case that the learned trial judge did not direct the jury on the ingredients necessary for the offence of murder. At page 9 of his charge he identified the first question that was not really in dispute as the time at which the murder of Shirley Finlay occurred. At page 16 he dealt with the evidence of Dr Bentley establishing that death was due to strangulation by hand or ligature. Dr Bentley's evidence that the pressure exerted must have been sustained for some time was not contradicted. In addition to this Dr Bentley noted 22 separate bruises on her body which he stated indicated blows such as punches to the face and forceful gripping of her arms.

[18] All of this indicates that the issue at the trial was not whether Shirley Finlay was murdered but whether the applicant was the person who carried out the murder. The inference that the person who killed the deceased did so unlawfully and with intent to kill her or cause her grievous bodily injury is overwhelming in light of the medical evidence. It is also of some significance that there was no requisition on this issue at the trial.

[19] The most relevant case on this issue is the decision of this court in R v Shaw and Campbell [2001] NIJB 269. The remains of the deceased were found at the bottom of a deep gorge. He was unidentified for time until a person detained with the accused Shaw reported that Shaw had admitted killing Timothy Sullivan with a hammer and disposing of his body in a marshy area. The prosecution case was based on alleged admissions made by the accused and the evidence of the accused's wife about the disposal of clothes after the killing. The court noted that in light of the facts of the case and the way in which the case had run the learned trial judge had formed the view it was unnecessary for him to address the jury on the elements of the law of murder. Carswell LCJ reviewed the authorities and concluded that it was advisable in every case to set out the ingredients of the crime even if it was followed up by suggesting to the jury that they should encounter no difficulty in finding those matters proved on the facts before them. He indicated, however, that the absence of the direction in that case did not render the verdict unsafe.

[20] There are, of course, a number of examples of cases where an appeal has succeeded because of the failure of the trial judge to direct on the ingredients of the offence charged. In each case the question is whether the failure has rendered the conviction unsafe. We are satisfied that in light of the unchallenged evidence of the pathologist and the circumstances in which the deceased was found this case rightly proceeded on the basis that the deceased had been murdered. We consider that it would have been advisable to direct the jury on the ingredients of the offence but do not accept that the failure to do so in this case affected in any way the safety of the conviction.

Bad character

[21] The applicant's original trial commenced in April 2009. On 28 April 2009 Hart J dealt with an application by the prosecution to admit bad character evidence under Article 6 (1) (f) of the Criminal Justice (Evidence) (Northern Ireland) Order 2004 to correct a false impression given by the defendant. The prosecution case was that the applicant had approached Shirley Finlay sometime after she was last seen alive at about 10 PM on Monday, 18 September 2006. In light of the forensic evidence linking her body to the defendant and his flat at 5A Hill Street the prosecution suggested that he must have somehow persuaded her to enter his flat and so must have spoken to her. In the course of his police interviews the applicant stated firstly that he would not approach a female in the street in Ballymena and secondly that one of the reasons that he would not do so was that he could speak no English.

[22] The evidence of Danielle Loughgran and Noreen Glendinning set out at paragraph 12 above was included as part of the application. The learned trial judge concluded that the events described by those witnesses could not amount to anything that could be called disreputable in the criminal sense and accordingly did not fall within the definition of bad character in Article 3 of the 2004 Order. He accepted that the evidence was relevant in contradicting the applicant's account that he had very limited command of English and that he would not approach women and saw no reason why he should exclude it under Article 76 of PACE.

[23] In relation to the evidence of Amy Lester and Kayleigh Adair set out at paragraph 13 above he concluded that these allegations were capable of contradicting the impression that he would not approach females of any age in the street and that the evidence, therefore, had probative value in correcting a false impression. He accepted that this evidence was capable of being construed as an effort by the man to invite a young girl into his flat and in the absence of a justifiable reason could be regarded as misconduct. He concluded, therefore, that this did constitute bad character within Article 3 of the 2004 Order. He did not consider that the admission of this evidence would have such an adverse effect on the fairness of the proceedings that it should be excluded under Article 76 of PACE.

[24] After these rulings were made the trial was abandoned when the applicant dismissed his counsel. His retrial commenced in September 2009 before the same trial judge with the appellant being represented by a different team of counsel. On 28 September 2009 in the course of his retrial the applicant's new senior counsel sought to re-argue the issue of the admissibility of this evidence. The learned trial judge ruled against the applicant on two grounds. First he considered that he should apply by analogy section 40 of the CPIA 1996 which provides that a pre-trial ruling remains binding at the trial and no application to question it should be entertained unless there is a change of circumstances. Secondly he concluded in any event that, having considered the written submission advanced on behalf of the appellant, the arguments were not of sufficient merit to justify the matter being reopened.

[25] The applicant submitted that a valid ruling on admissibility can only be made during the course of a trial or during a pre-trial hearing. In this case the learned trial judge had declined to allow the matter to be argued before him in the course of the retrial and accordingly, it was submitted, no valid ruling relating to the admission of the bad character evidence was made. The prosecution maintained that the ruling of 28 April 2009 constituted a pre-trial ruling and that it continued to have binding effect under the CPIA 1996 until the case against the appellant was disposed of.

[26] Section 39 of the CPIA 1996 provides that the hearing is a pre-trial hearing if it relates to a trial on indictment and takes place after the accused has been sent for trial for the offence and before the start of the trial. By virtue of section 40 (3) of the CPIA 1996 a pre-trial ruling has binding effect from the time it is made until the case against the accused is disposed of. A judge may discharge or vary a ruling if it appears to him that it is in the interests of justice to do so of his own motion or may do so on an application by a party to the case but no such application may be made unless there has been a material change of circumstances since the ruling was made.

[27] The ruling made on 28 April 2009 was made after the commencement of the trial and at the time at which it was made was clearly not a ruling made at a pre-trial hearing. The fact that the trial was abandoned did not change the character of the hearing at which the ruling was made. We therefore reject the submission that the ruling on admissibility constituted a pre-trial ruling in relation to the retrial. We consider that this is consistent with the approach of the learned trial judge who decided that he should apply section 40 by analogy. He clearly considered the content of the submission made to him in September 2009 as he indicated that he was not satisfied that the arguments were of sufficient merit to justify the matter being reopened. It is also clear from his ruling that he considered that the only change of circumstances was the instruction of alternative counsel on behalf of the appellant.

[28] In our view the effect of the ruling by the learned trial judge on 28 September 2009 was to adopt the earlier ruling made by him on 28 April 2009. In taking that course he clearly carefully considered the submissions that were made to him in writing in order to determine whether there was any reason to depart from the conclusion he had earlier reached. We consider that the ruling on 28 September 2009 was, therefore, a valid ruling within the retrial.

[29] In relation to the evidence of Danielle Loughran and Noreen Glendinning there is little dispute that this was not bad character evidence. It was admissible only if it was relevant. The relevance depended upon whether the jury were satisfied beyond reasonable doubt that the man who approached the women was the defendant. The learned trial judge directed the jury that they were entitled to take into account the description given by the witnesses of the age, height and build of the man, the fact that he spoke in broken English and that he came from the doorway leading to the appellant's flat. The applicant also give evidence of a similar incident which the jury were entitled to take into account in determining whether they were satisfied beyond reasonable doubt that the person in question was the appellant. In our view this was material upon which the jury were entitled to act and the issue of the extent to which this assisted the jury in concluding that he was able to speak English and had approached girls in the past in the street was entirely correctly placed before them by the learned trial judge in his charge. There is no criticism of the learned trial judge's charge in relation to his direction upon such lies as the jury may have found the appellant to have told.

[30] The applicant also submitted for broadly the same reasons that because there was no conclusive evidence to place before the jury that the man who approached Amy Lester and was seen by Kayleigh Adair was the appellant the evidence was inadmissible as irrelevant. For the same reasons given at paragraph 29 in relation to the earlier evidence we are satisfied that the learned trial judge was correct in his ruling that the evidence was material on the same issues.

[31] It is, however, common case that this evidence alleged misconduct on the part of the appellant as set out in paragraph 23 above. Although the gateway for the admission of evidence to correct a false impression is contained in Article 6 (1) (f), the circumstances in which such evidence can be admitted are prescribed by Article 10. By virtue of Article 10 (1) a defendant gives a false impression if he is responsible for making an assertion which is apt to give the jury a false or misleading impression about him and he is treated as being responsible for the making of the assertion under Article 10 (2) if the assertion was made by the defendant on being questioned under caution, before charge, about the offence with which he is charged and evidence of the assertion is given in the proceedings. In this case the applicant asserted at interview before charge on this offence that he neither spoke English nor had approached any girls in the street. Those interviews were given in evidence so the basis for the admission of the evidence was established.

[32] The applicant relied principally, however, upon Article 10 (6).

"10(6) Evidence is admissible under Article 6(1)(f) only if it goes no further than is necessary to correct the false impression."

The learned trial judge charged the jury that the purpose of the admission of the evidence was to establish an example of the defendant approaching women in the street which is something that he denied that he did. The applicant submits that it was entirely unnecessary to introduce the evidence of bad character in order to establish this proposition. In the course of the hearing on 28 September 2009 the applicant's representatives had suggested that it might be possible to agree some basis upon which this evidence might be admitted without introducing the misconduct that he had gestured to the girl to enter the flat. Although that suggestion was made in submissions there is nothing to indicate that there was any concrete proposal as to how this might be achieved. In response the prosecution contended that it was not for the defence to direct the manner in which the prosecution evidence should be given. In the event the witnesses were simply called although not apparently cross-examined.

[33] The statutory purpose of Article 10 (6) is to ensure that this gateway does not become a route through which additional prejudicial material is inadvertently or unnecessarily admitted. The limited purpose of the gateway highlights the necessity to scrutinise any such application to ensure that the admission of evidence tending to show that the defendant has committed the offence charged is excluded or minimised. In this case the evidence adduced by the prosecution tended to show that the appellant had invited a young girl whom he had never met into his flat in circumstances where that was not justified. The case made by the prosecution in relation to the deceased was that the deceased had met her and brought her to his flat where he murdered her. It was the responsibility of the court, therefore, to ensure that this evidence was only admitted if it went no further than was necessary to correct the false impression.

[34] When faced with an application of this kind we consider that the judge should follow the scheme of Article 10 in dealing with it. The first consideration is whether the defendant is responsible for making an assertion which is apt to give the jury a false or misleading impression about him. As with all evidence this has to be an impression which is relevant to the issues in the case. If that is established the next question is whether the evidence to correct the impression has probative value. The statute then requires the court to be satisfied that the trigger conditions in Article 10(2) for the making of the impression are satisfied. The next stage is to examine whether the defendant has withdrawn or disassociated himself from the assertion as provided for in Article 10(3). For the purposes of this issue it is not necessary to consider Articles 10(4) or (5).

[35] If the judge gets to Article 10(6) the court must consider whether the proposed evidence goes further than is necessary to correct the false impression. Where the proposed evidence is likely to cause prejudice to the defendant other than by the probative value of the correction of the false impression the judge should explore with the parties whether the manner of the introduction of the evidence can be tailored to remove or diminish the additional prejudicial effect. In some cases that can be achieved by editing. In others it may be possible to achieve it by way of admissions. In carrying out this exercise it will be important to be alert to any possible diminution in the probative value of the proposed evidence. We are clear, however, that this is a matter for the court to determine although the parties should assist in exploring the options. We reject the submission that it is for the prosecution to decide how it should present this evidence.

[36] That process did not happen in this case. We can see that there may well have been difficulties in reaching an acceptable solution. The prosecution needed to establish the approach made by the person they claimed was the defendant. He denied that he had made it so the prosecution needed to link the approach to Amy Lester to the person entering the doorway leading to the applicant's flat. We cannot see, however, that it was relevant to the correction of the false impression to introduce the evidence that the applicant had gestured to the girl to enter the doorway leading to his flat and for that reason we consider that the evidence of the gesture ought not to have been admitted.

[37] Once the process under Article 10 has been completed it may be necessary to consider Article 76 of PACE and whether the admission of the evidence would have such an unfair effect on the fairness of the proceedings that the court ought not to admit it. This was an exercise carried out by the learned trial judge in this case. He considered that this evidence was of some importance to the prosecution case. He directed the jury that it was material to the false impression if they were satisfied that the applicant was the person who approached the witnesses. The evidence did not suggest any violence or use of force by the appellant. The gesture was no more than an invitation and there was no inducement.

The 999 call

[38] At the retrial the applicant sought to admit a recording of a telephone call made by way of the 999 system on 3 October 2006 to police in Ballymena. The caller spoke with a local accent.

"Caller: Hello. If I was to admit to the murder of

Shirley Finlay, would yous remand me straight away or what would happen?

Police: Jeremy Finlay?

Caller: That wee girl that was strangled.

Police: Right.

Caller: Mount Street.

Police: Right.

Caller: Conscience, conscience, conscience.

Police: Right.

Caller: I'll go here now.

Police: And, right. Well, where are you sir? You,

you...

Caller: Can't, just can't tell you.

Police: Right. Would we remand you straight away? Well someone would want to speak to you right away.

Caller: Oh, right, right."

At this point the transcript is unclear but the caller appears to continue:

"I'm here but I'll be back in about five minutes.

Police: Right,... skipper.""

[39] The applicant sought to admit this evidence pursuant to Article 18(1)(d) of the 2004 Order which in turn requires an assessment of the factors set out in Article 18(2).

"(2) In deciding whether a statement not made in oral evidence should be admitted under paragraph (1)(d), the court must have regard to the following factors (and to any others it considers relevant)-

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in sub-paragraph (a);

(c) how important the matter or evidence mentioned in sub-paragraph (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it."

[40] The learned trial judge recognised that Article 18 (1) (d) might render an extrajudicial confession by a third-party admissible at the request of the defence but in every case it would be necessary to assess the reliability of the statement having regard to the provisions of Article 18 (2). That was the approach which the Court of Appeal in England and Wales encouraged in Prosecution Appeal (No 2 of 2008) R v Y [2008] EWCA Crim 10. In this case the learned trial judge addressed each of the factors in turn. He noted that the statement fell short of being a confession but recognised that it had some probative value. He also recognised that in a circumstantial case anything which may point to someone other than the defendant having committed the murder is clearly important. He noted that the circumstances of the 999 call rendered it impossible to probe or evaluate the information. The recording enabled the court to hear the actual words used but there was nothing in the content of the statement to suggest that the maker had any information as to the nature or circumstances of the murder which would tend to confirm that he was in fact the murderer. There was no basis upon which the jury could consider whether the caller concerned was genuine or not. In those circumstances in light of the sparse content of the remarks and the lack of detail it would be exceptionally difficult for the prosecution to challenge the statement and the prosecution would be greatly prejudiced by the admission of the evidence. Having examined all of these matters the learned trial judge considered whether it would be in the interests of justice for the recording to be placed before the jury. He concluded that the evidence fell very far short of amounting to any form of credible evidence that could be put before the jury and refused the application. We consider that he was right to do so for the reasons given by him.

[41] The alternative ground advanced in relation to this matter was that the recording was admissible as a document pursuant to Article 21 of the 2004 Order.

"21. - (1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if-

(a) oral evidence given in the proceedings would be admissible as evidence of that matter,

(b) the requirements of paragraph (2) are satisfied, and…

(2) The requirements of this paragraph are satisfied if-

(a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,

(b) the person who supplied the information contained in the statement ("the relevant person") had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and

(c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in sub-paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

(3) The persons mentioned in sub-paragraphs (a) and (b) of paragraph (2) may be the same person….

(6) A statement is not admissible under this Article if the court makes a direction to that effect under paragraph (7).

(7) The court may make a direction under this paragraph if satisfied that the statement's reliability as evidence for the purpose for which it is tendered is doubtful in view of-

(a) its contents,

(b) the source of the information contained in it,

(c) the way in which or the circumstances in which the information was supplied or received, or

(d) the way in which or the circumstances in which the document concerned was created or received."

[42] There are numerous difficulties associated with this submission. In order to succeed the applicant must first demonstrate that oral evidence of the matters stated would be admissible. We consider that the learned trial judge was correct to conclude that this was not a confession and since the statement did not contain information it is difficult to see what matter is stated of which oral evidence could be given for the purposes of Article 21(1)(a). Secondly Article 21(2) (b) supports that interpretation in that it requires that a supply of information be contained within the statement. It is only if there is such information that the court can address whether the maker had personal knowledge of the matters dealt with. There was no such information in this statement. Thirdly it is clear that the statutory purpose of Article 21(7) is to prevent the admission of statements of doubtful reliability. In this case the contents of the statement shed no light on the circumstances surrounding the commission of the murder, the source of the information, if any, is completely unknown as is the motivation of the source and the circumstances in which the call was received prevented any evaluation of the statement. In our view if it was required this was plainly a case where a direction under Article 21 (7) would have been necessary.

Other matters

[43] Part of the forensic case made against the applicant was based on a strand of hair connected to the deceased found in his apartment on 6 October 2006. It has subsequently been established that a police officer who attended the scene where the deceased was found at 4:23 PM 19 September 2006 subsequently entered the applicant's flat at 10:36 PM that evening to conduct a search in relation to an unrelated matter. There is clear evidence that while at the scene at which the deceased was found the officer was wearing full and appropriate forensic protective clothing. The deceased at that stage was wrapped in the plastic bags. It was submitted that the failure to disclose this evidence deprived the deceased of the opportunity to explore at trial the possibility that the hair of the deceased found at the inner entrance to his flat could have been carried there by the officer in question. In light of the fact that the deceased was covered in the plastic bag at the material time and that the officer was wearing full forensic protective gear we are entirely satisfied that there was no prejudice to the applicant as a result of the failure to disclose this matter.

[44] The second disclosure point related to the fact that during the search of 19 September 2006 it was noted by the investigating police officer that the applicant did not speak English as he did not respond to questions that were asked of him. We consider that there is no material probative weight that can be attributed to the fact that the applicant answered in that way when faced with police officers carrying out a search in relation to allegations of making threats to kill and theft. If the applicant had wished to adduce evidence about his incapacity to speak English he had every opportunity to explore that through his employer or landlord. This was an issue on which the learned trial judge gave careful directions and there is no complaint about those directions.

Conclusion

[45] We have concluded that the evidence of Amy Lester that the applicant made a gesture inviting her to enter the doorway to his flat was evidence of bad character which was not admissible under Article 6 (1) (f) of the 2004 Order because it went further than was necessary to correct a false impression. The issue for us is whether the admission of that evidence rendered the conviction unsafe.

[46] The case against the applicant was circumstantial but it was nevertheless a substantial case. His fingerprints were found on the plastic bags in which the deceased was wrapped. Inside the plastic bags the deceased was wrapped in a duvet cover. In his police interviews the appellant denied any knowledge of the duvet cover. Forensic evidence then matched shards of grey paint found in the duvet cover with similar items found on the floor of his flat, his vacuum cleaner, the fire escape and a pram which it is believed was used to transport the body. In his evidence he changed his account and said that the duvet cover had been out on the fire escape and he had used it to clean a satellite dish. Although in his police interviews he had denied using plastic bin bags he asserted in his evidence that he had recently left a number of such bags outside his apartment containing the clothing of his ex-girlfriend. He contended that in some way those plastic bin bags were then used to wrap the deceased.

[47] Fibres from a towel recovered with the body were connected to the carpet of his flat and the communal staircase. He stated that he did not know the deceased but a hair discovered on the mat at the inner door to his apartment matched the deceased's hair. In addition to all of this there was ample evidence that he had lied about his capacity to speak English and about the fact that he had approached women in the street.

[48] The evidence of the gesture which we have found should not have been admitted did not give rise to any suggestion of the use of force nor did it suggest any inducement to encourage the girl to enter the premises. There was no evidence of anything said which might have suggested a violent motive and the fact that Amy Lester said that the person in question was speaking in a foreign language was of some support to the applicant in relation to his ability to speak English. The learned trial judge directed the jury that the evidence was put before them in relation to the issue of the false impression and there was no suggestion that it should be used by the jury in relation to the commission of the crime.

[49] In light of the overwhelming circumstantial case against the applicant and the direction of the learned trial judge as to how the evidence in question should be addressed we are left with no sense of unease in relation to the safety of this conviction. Accordingly we dismiss the appeal.