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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 >> Gadsby, R v  EWCA Crim 3206 (13 December 2005)
Cite as:  EWCA Crim 3206
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT LEICESTER
His Honour Judge Michael Stokes Q.C
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SILBER
THE RECORDER OF CARDIFF
(sitting as a Judge in the Court of Appeal Criminal Division)
| The QUEEN
|- and -
|Douglas John GADSBY
Rex Tedd QC for Mr Gadsby (who do not appear in the Court below)
Hearing dates : 24 June and 4 October 2005
Crown Copyright ©
LORD JUSTICE THOMAS :
i) In 1994 when the appellant was 29 he met Deborah; she was then 17 and after 18 months they married.
ii) Prior to her marriage she had a relationship with Mr Andrew Porter.
iii) In the Autumn of 2002 Mrs Deborah Gadsby resumed the relationship with Mr Andrew Porter; in consequence the appellant and Mrs Gadsby split up. He moved, living for part of the time in his boat. He tried to commit suicide.
iv) Consequent on the appellant's attempt to commit suicide Mrs Gadsby and the appellant resumed their relationship but it did not last. In February 2003 they ceased to have sexual relations.
v) During June 2003 the appellant was prescribed an anti-depressant, he accepted that he felt that matters between himself and his wife were eating away at him. In August 2003 Mrs Gadsby resumed her relationship again with Mr Porter. The appellant got enigmatic messages and phone calls in respect of that.
vi) On 31 August 2003 a bunch of keys went missing. They reappeared through the front door letterbox on 2 or 7 September 2003.
vii) On 1 September 2003 a small transient window in the house was found to be open.
viii) On 2 September 2003 the appellant bought a hotplate identical to the one found under the bed. The appellant's evidence was that he placed it in the shed of the matrimonial home.
ix) On the same day, the appellant told his wife he could not open the safe; despite being asked to call the police about this and the previous incident, he did not do so.
x) On 4 September 2003 when the appellant and Mrs Gadsby were in bed together, Andrew Parker phoned. The appellant discovered it was Andrew Parker and there was a row. Mrs Gadsby's evidence was that the marriage was finished.
xi) On 9 September 2003 Mrs Gadsby noticed the timer switch was missing from the outhouse; the appellant's evidence was that it had been removed prior to that date.
xii) During the day on 10 September 2003, the appellant's sister Lynn Gadsby, went to the house as usual and did various housekeeping and cleaning duties. She used her key to gain access.
xiii) On the evening of 10 September 2003, the appellant was in the bedroom prior to going out to work.
xiv) As a result of police investigations, it was not seriously in dispute that no-one had broken into the house through any window.
xv) The appellant was asked on the night who he thought might be responsible. He identified Andrew Porter (to whom we have referred) and Stephen Smith (with whom the family had had an argument in the past). When asked in interview he mentioned these two and no-one else. When asked about keys, he said that Andrew Porter had a key and the only other person who had access to the spare door key was his sister, Lynn Gadsby, because she came in once a week and did ironing and a bit of cleaning. He did not make any allegation that she might have been responsible. He added subsequently that his 17 year old stepson might have had a motive; there had been teenage difficulties with him.
The ruling refusing to admit a previous conviction
The appeal against the ruling
i) Lynn Gadsby was convicted on 29 July 1980 of an offence of arson committed on 22 June 1980 when she was 19.
ii) After an argument with her mother Lynn Gadsby set fire in the family home to a box containing toys in the bedroom. Damage to the value of £253 was caused. The toy box was found ablaze in a smoke filled room. Family members including Lynn Gadsby and the appellant were in the house when the fire was discovered.
iii) The prosecuting Inspector told the sentencing court that according to Lynn Gadsby's mother this was the fifth in a series of fires in the family home. No prosecution was brought in respect of the earlier fires.
iv) On Lynn Gadsby's account she started the fire because "she was fed-up with her mother getting at her".
"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 from an issue which is the subject of the appeal; and whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings".
The issue of relevance
i) The defence believed that Lynn Gadsby had a conviction for arson. Apart from some evidence that the conviction had occurred when Lynn Gadsby was a youth and therefore the conviction was many years ago, no details of that conviction had been obtained or were available.
ii) It was not the defence case positively that she did it, but that it was highly relevant that someone who had access to the house on the day in question with such a conviction should be investigated as she might have done it.
iii) The conviction was therefore relevant and should be admitted.
i) Lynn Gadsby was not a witness in the case and no allegation was made against her that she had committed this offence; placing the conviction before the jury could only suggest that she was or might have been responsible and it could serve no other purpose.
ii) On the basis of the decision of the Court of Appeal in Randall (2003), the facts of this case were far removed from the facts of that case. There would be no balancing exercise possible in the present case as the jury would not see Lynn Gadsby or have any information about the previous conviction.
iii) Admitting the evidence would be in breach of the spirit of the Rehabilitation of Offenders Act and of the Practice Direction of the Lord Chief Justice.
iv) Admitting such evidence would amount to the jury being invited to speculate. Although the defence could properly point to others who had the opportunity but no motive, introducing the conviction would be a red herring and give rise to speculation.
v) The evidence was not therefore relevant to any issue in the case.
"the fact that [the defendant] has committed an offence on one occasion does not in any way show that he is likely to commit an offence on any subsequent occasion. Accordingly, such questions are, in general, inadmissible, not primarily for the reason that they are prejudicial, but because they are irrelevant."
"Cross-examination of – typically – the investigating police officer to establish the bad character of a person who is neither a party nor a witness commonly occurs in practice. The most obvious example is in cases of homicide. Where questions as to character are put to a witness (especially if he is the defendant), the standard view is that their relevance is to credibility. The reality, however, is that where the defence to a charge of murder is self-defence and it is elicited that the deceased had a series of convictions for serious offences of violence, the relevance of this evidence is that it goes to disposition (and see R v Lee, 62 Cr.App.R.33,CA – evidence admitted, on charge of burglary, of bad character of persons not called who had access to premises). If the charge were only one of wounding with intent, contrary to s.18 of the Offences against the Person Act 1861, and similar matters were put to the alleged victim, it is submitted that they should be regarded as relevant both to disposition and credibility."
Lord Steyn commented:
"This is a good example of the potential relevance of a propensity of an individual to the issues in a criminal case."
" … relevance in cases such as the one under consideration is a more subtle concept: Cross & Tapper on Evidence, 9th ed (1999), 55-56. Article 1 of Stephen's Digest of the Law of Evidence, 12th ed (1936), explains relevance as follows:
"any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other."
In R v Kilbourne  AC 729, Lord Simon of Glaisdale put the position more simply, at p 756 D - E:
"Evidence is relevant if it is logically probative or disprobative of some matter which requires proof . . . relevant . . . evidence is evidence which makes the matter which requires proof more or less probable."
A judge ruling on a point of admissibility involving an issue of relevance has to decide whether the evidence is capable of increasing or diminishing the probability of the existence of a fact in issue. The question of relevance is typically a matter of degree to be determined, for the most part, by common sense and experience: Keane, The Modern Law of Evidence, 5th ed (2000), at 20."
The lateness of the application to the judge
i) there was no defence case statement.
ii) There was no explanation for the fact that the application was made late.
Criticisms of the summing up
"it was not for the defendant to establish who did this or might have done it or to point the finger at anybody. The burden is the other way round. It is for the prosecution to make you sure that he placed the device under his wife's bed, that he brought about its coming on, whenever it did come on, and that he intended by doing that to kill his wife."
i) the degree of premeditation
ii) the degree of preparation
iii) the prospect of success
iv) the degree of any provocation
v) the absence of injury
vi) the prospect of financial gain or other benefit.
"Where electrocution is the chosen instrument of death, the line between success and failure is thin."