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DONNA THERESA CLARKE ANNETTE SUSAN HEWINS, R v.  EWCA Crim 386 (15th February, 1999)
THE COURT OF APPEAL
Courts of Justice
15 February 1999
e f o r e:
VICE PRESIDENT OF THE QUEEN'S BENCH DIVISION
JUSTICE BRIAN SMEDLEY
E G I N A
Aided Transcription by
Bernal, 180 Fleet Street, London EC4
Shorthand Writers to the Court)
C PITCHFORD QC and MR S HOPKINS appeared on behalf of
APPELLANT DONNA THERESA CLARKE
M MANSFIELD QC and MS A SHAMASH appeared on behalf of
APPELLANT ANNETTE SUSAN HEWINS
JOHN C REES QC and MR G BULL appeared on behalf of THE CROWN
U D G M E N T
Approved by the Court
15 February 1999
20th June 1997 in the Crown Court at Cardiff, after a four month hearing, these
two appellants were each convicted of Arson with intent to endanger life.
Clarke was sentenced to 20 years imprisonment, and Hewins was sentenced to
imprisonment for 13 years. They now appeal against conviction by leave of the
single judge, and against sentence by leave of the full court.
now aged 32, is the aunt of Clarke, now aged 29, and at the material time in
early October 1995, they both lived at Merthyr Tydfil, South Wales. Clarke
lived at 42 Clover Road on the Gurnos Estate. Her normal cohabitee at that
address was Simon Owens, known as Ossie, but he had been in custody since
October 1995. He was due to be released on 27th October 1995. Diane Jones
aged 21, lived quite near, at 62 Marigold Close, with her two children aged
2½ and 1. Her normal cohabitee, and the father of her children, was Shaun
Hibberd, but he too was in custody, having been there since 7th August 1995.
In the Spring of 1995 Clarke had a sexual affair with Shaun Hibberd, who lived
with her for a time, and that led to tension between Clarke and Diane Jones
which, according to the prosecution, was a highly material fact in this case.
about 1.50 am on Wednesday 11th October 1995 someone tore away part of the
covering of the front door at 62 Marigold Close, poured in petrol and
deliberately started a fire. Diane Jones and her two innocent children were in
bed. Soon after the alarm was raised Diane Jones was seen at an upstairs
window, but the fire spread so rapidly and with such intensity that neither she
nor her children were able to escape, nor could they be rescued, and all three
far as can be ascertained no one saw the arsonist start the fire, and the
prosecution had no scientific evidence to link Clarke to the fire. She was
interviewed on a number of occasions, and she maintained on each occasion that
she did not light the fire, so the prosecution case against her was necessarily
based on circumstantial evidence. The prosecution set out to prove that -
Clarke hated Diane Jones because of her prior claim upon Shaun Hibberd, and
because Diane Jones was likely to tell Simon Owens of Clarke’s infidelity
Clarke made threats to harm Diane Jones, and in particular threatened to
petrol bomb her home.
At about 10.15 pm on Tuesday 10th October 1995, that is about three hours
before the fire was started, Clarke went with Hewins, in Hewins’ car, to
a garage in Merthyr Tydfil where Hewins purchased the petrol which Clarke later
used to start the fire.
At about 1 am on 11th October 1995 Clarke and a sixteen year old girl named
Carly John met their friend Denise Sullivan, now 27 years of age, near to the
Iron Horse public house and walked from there to the home of Mark Morris at 121
Clover Road, Gurnos Estate. On the way Sullivan, who had only just been
released from custody but who knew what Clarke planned to do (partly as a
result of a letter from Clarke which she received before she was released)
distracted Carly John, so that Clarke was able for a short period to slip away
on her own.
When the three young women arrived at 121 Clover Road at about 1.35 to 1.40 am
Clarke did not go in with the other two. She did join them in the house about
ten to fifteen minutes later, but that period on her own was critical because
the expert evidence indicated that it was probably at about 1.50 am that the
When Clarke, Sullivan and Carly John left No 121 a few minutes later and saw
smoke Clarke said that the fire was at the home of Diane Jones before the house
At the scene of the fire and thereafter Clarke behaved in a way which was
suggestive of guilt. She was furtive, she took the opportunity to listen into
Police radio transmissions, she changed and washed her clothes in the middle of
the night, and when questioned by the police she lied repeatedly.
Hewins, Sullivan and Carly John also lied, but eventually Sullivan and Carly
John shifted ground, with the result that Carly John became an important
witness for the prosecution.
indictment contained three counts of murder, one count for each victim of the
fire, and Clarke, Sullivan and Hewins were all charged jointly with each
offence. They were also jointly charged in count 4 of the indictment with
Arson with intent to endanger the life of Diane Jones, and in count 5 with
Arson, being reckless as to whether the lives of Diane Jones and her two
children would be endangered. The jury was given the option of returning a
verdict of manslaughter in relation to the counts of murder, but acquitted all
three defendants on those three counts. As we have indicated, they convicted
Clarke and Hewins on count 4 and were then not asked to return a verdict on
count 5. Sullivan was convicted of the offence charged against her alone in
count 6, namely doing acts tending and intended to pervert the course of
justice by providing false information and threatening witnesses in an attempt
to exculpate Clarke. Her appeal against conviction was abandoned at an early
case for Clarke, which was presented by Mr Pitchford QC, at trial and before
us, was that Clarke did not hate Diane Jones nor did she make any meaningful
threats to harm her. Nothing was ever said about the use of a petrol bomb.
Clarke’s affair with Shaun Hibberd had ended in June 1995 when Shaun
Hibberd returned to Diane Jones, and long before the night of the fire Simon
Owens knew about that affair.
Clarke went in Hewins’ car to Snow’s Garage on the evening of
Tuesday 10th August 1995 her prime purpose was to buy an electricity token.
She also bought a small bottle of Lucozade and some cigarettes, but the petrol
which was bought by Hewins went into and remained in the fuel tank of
walk back from the Iron Horse public house was boisterous but uneventful.
Clarke did not slip off on her own, and the interpretation which the
prosecution sought to place upon the letter which she had written to Sullivan
on 2nd October 1995 was unwarranted. When the three of them got back to 121
Clover Road Clarke did not go off on her own, but remained with Sullivan and
Carly John at that address until they left together just after 2 am, by which
time the emergency services had already been called to the fire. They could
see smoke, but Clarke did not attribute it to the home of Diane Jones until she
had gone far enough to be able to see where it was coming from. Thereafter she
was very upset, particularly when she heard that the two young children had
perished with their mother, but although she did listen to police transmissions
she did not change her clothes in the middle of the night, nor did she
deliberately seek to hamper police enquiries.
behalf of Hewins it was contended by Mr Leighton Davies QC, at the trial, and
by Mr Mansfield QC, before us, that Hewins did no more than, at the request of
Clarke, drive Clarke to Snow’s Garage so that Clarke could purchase an
electricity token. Hewins took the opportunity to put a little petrol in the
tank of her car, but neither she nor Clarke at any stage put petrol into any
other container. From first to last she had no reason to believe that Clarke
intended to commit any criminal offence.
and in so far as either Clarke or Hewins may be shown to have lied to the
police or sought to mislead them, or even lied to the court, it is submitted
that lies alone cannot constitute an affirmative prosecution case.
investigations began at once, and on 12th October 1995, the day after the fire,
Clarke was seen by DC Reardon. She gave a statement, but it did not mention
any visit to the garage. Clarke’s case at trial was that she did mention
the visit to the officer. Sullivan was present when that statement was taken,
and it was the prosecution case that initially all three defendants and Carly
John agreed to keep silent about the acquisition of the petrol which was used
to accelerate the fire.
using a false name telephoned the police and arranged for Clarke to be seen by
a police officer. She was seen by DC Nicole Lloyd on 13th October 1995 and
expressed concerns about Anthony Pembridge, who lived with Tammy Jones at 19
Jasmine Close, near to where the fire occurred. Pembridge had been at 121
Clover Road and had left before the final departure of Clarke, Sullivan and
Carly John. According to Tammy Jones he was subsequently either the first or
one of the first to see the fire, and he and Tammy Jones then did what they
could to help. The prosecution contended that on 13th October 1995 Hewins and
Clarke were cynically trying to make the police suspicious of Pembridge so as
to protect themselves. They, of course, say that they were simply trying to
assist by passing on genuine concerns.
Friday 13th October 1995 Carly John made a witness statement in which she said
that she was with Clarke from the time that they left Clarke’s home on
the Tuesday evening until after they discovered the fire. Initially they had
gone to the home of Pauline Seal at 45 Bramble Close where they obtained
amphetamines, then, after an initial visit to 121 Clover Road, they had been to
the home of Colleen Parry at 24 Crabapple Close, from which address Clarke made
a telephone call to Sullivan at the Iron Horse public house. After meeting up
with Sullivan they had gone back to No 121.
16th October 1995 Clarke was visited by the police during the course of a house
to house enquiry. Again, so far as the police officer PC Coombes could recall,
there was no mention of any visit to a garage on the Tuesday evening. That
again was disputed by Clarke at the trial. The officer said that had such
information been forthcoming he would have regarded it as significant because
the police knew by then that petrol had been used as an accelerant. Clarke
produced a pair of light blue jeans as the clothing which she had been wearing
on the night of the fire. In fact her visit to Snow’s Garage at about 11
pm was recorded by a video camera, and it is clear from that record that when
she went to the garage she was wearing dark jeans.
is not clear to us precisely when the police appreciated that Clarke and Hewins
had visited Snow’s Garage, and that their visit had been video-recorded.
But the police were not long in ignorance of the fact that Clarke and Hewins
had visited some local petrol station because Louise Price, a fifteen year old
girl who was baby sitting at Clarke’s home on the Tuesday night, told the
police of the garage visit. She also told them about Clarke returning to
change her clothing after the fire. So, according to the prosecution, the
three defendants decided to adjust their position, and when Hewins gave a
statement on 22nd October 1995 she said that there had been a visit to a
garage, but to a different garage, the Esso Garage at Dowlais, at which an
electricity token and other items were obtained but no petrol was bought.
Clarke adopted that position when she was interviewed on 2nd November 1995.
that same day, 2nd November 1995, Carly John was interviewed. During the
course of that interview she said that when she left 121 Clover Road after 2 am
with Clarke and Sullivan it was only when the home of Diane Jones was visible
that Clarke said “Oh my God, look, its Diane’s house”. Carly
John also said that neither Clarke nor Sullivan changed their clothes during
14th February 1996 the police arrested Clarke, Sullivan and Carly John. Hewins
was interviewed and raised for the first time the possibility that the garage
visit may have been to Snow’s Garage, which would be unusual unless she
wanted to use the vacuum cleaner to clean the inside of the car. A further
justification for the visit to Snow’s Garage was said to be the need to
visit Claire Green. She was called as a defence witness at the trial but was,
we were told, unimpressive. In any event Hewins said that she would have been
in a rush because her husband did not like her going out late to take Clarke to
the evidence is not admissible against either of these two appellants it seems
that it was Sullivan who on 14th February 1996 first indicated to the police
that Clarke was not with Carly John and herself at No 121 at the critical time
when the fire began, so the police had that information when they interviewed
Carly John in the presence of her father on 15th February 1996. Carly John
then adopted a markedly different stance, saying that Clarke had been absent
from No 121 when the fire began, and that when she later left that address she
made her comment about it being Diane Jones’ home that was on fire before
her house was visible. Carly John was interviewed again on 15th February 1996
and then released. At the trial she gave evidence for the prosecution.
prosecution obtained a statement from Anthony Pembridge which they disclosed to
the defence but they did not at any time serve that statement, or indicate that
it formed any part of the prosecution’s case. Nevertheless an
application was made by Clarke’s counsel for the proceedings to be stayed
until the prosecution called Anthony Pembridge as a witness for the
prosecution, failing which it was submitted that the trial judge should
exercise his discretion to call that witness himself. As Mr J.C. Rees QC, for
the prosecution made clear the prosecution had reasons for questioning the
reliability of Pembridge’s recollection of the night of the fire. There
was evidence to indicate that everyone at 121 Clover Road other than the
defendants and Carly John was adversely affected by drugs, and Pembridge went
there to brew “magic mushrooms”. If any defendant wanted to call
him as a witness they were free to do so. Of course defence counsel were
reluctant to do so because some of what had appeared in the statement of
Pembridge was not helpful to the defence. The trial judge declined to stay the
proceedings or to call the witness himself and that decision is challenged in
in the court below we have had our attention invited to the speech of Lord
(1964) AC 1254, and to the decision of this court in
(1995) 1 Cr App R 538, a case concerned with the duty of the prosecution in
relation to a witness whose statement has been served as part of the
prosecution case, but the most helpful authority is
(1993) 98 Cr App R 174, which makes it clear that where, as in this case, a
witness statement has simply been served on the defence as unused material, the
prosecution is not under any duty to call the maker of the statement as a
witness and, provided that the decision is made
the prosecution is free to consign a witness to that category even though he
purports to have been present at the scene and to have made material
observations. The power of a trial judge to call a witness himself can only be
exercised in exceptional circumstances, and he was right not to invoke it in
this case. Accordingly this ground of appeal, which appears at B in
Clarke’s grounds of appeal and as ground 5 in Hewins’ ground of
evidence of Carly John
John was called to give evidence on Monday 10th March 1997, and she was in the
witness box for 4½ days. Her evidence in chief lasted a little over a day.
She was then cross-examined by Mr Pitchford for nearly two days. Mr Aubrey QC,
for Sullivan was much shorter. She was then re-examined, after which the judge
gave leave for further cross-examination by Mr Pitchford, which led to further
re-examination by Mr Rees. Of course where there are serious charges the
evidence of important witnesses has to be carefully adduced, and if there is
more than one defendant cross-examination may take a little while, but having
read the whole transcript of the evidence of Carly John we are firmly of the
opinion that Carly John was kept in the witness box for far too long. Long
before the end of her testimony she must have been, and on the face of the
transcript clearly was, exhausted, so the value of her evidence was diminished.
After her evidence had been concluded the trial judge said, in the absence of
the jury, that it was his impression (and maybe that of the jury) that, whilst
giving evidence ultimately she became what I would describe as
“intellectually exhausted” (Volume 2 Page 7G). At the time of
trial she was seventeen years of age and a single mother, under a lot of
pressure from both sides. In justice to the defendants and to the witness
herself her evidence could and should have been completed in a much shorter
period of time.
technique of cross-examination which was used by Mr Pitchford was the first
serious mistake which prolonged Carly John’s period in the witness box,
and, as we shall see, it was echoed by the prosecution at a later stage in the
case. In chief Carly John gave evidence which was of considerable assistance
to the prosecution, and which was broadly in accordance with what she had said
to the police on and after 15th February 1996. She gave evidence of
Clarke’s fear of what would happen when Simon Owens was released from
prison, and learnt of her infidelity, of which he was said to be unaware.
According to Carly John Clarke had said twice that “she couldn’t
wait to get her hands on her (Diane Jones) and she was going to petrol bomb her
house”. As to the night of the fire Carly John gave evidence of Clarke
returning from the garage with Lucozade and cigarettes. The Lucozade bottle
was, she said, “a rusty colour. It had no fizz in it”. Carly John
revealed that at the material time Mark Morris, who lived at 121 Clover Road,
was a boy friend of hers and she claimed that on her first visit to 121 on that
evening she looked out of the window and saw Clarke “standing at the side
of Julie Hitchens” which, as Mr Pitchford was able to demonstrate, was
impossible. Carly John said that after she and Clarke left 121 for the first
time Clarke drew attention to the fact that the lights were off in Diane
Jones’ home, 62 Marigold Close, and suggested that might be because Diane
Jones was at bingo. Carly John went on to say that when she was on the way
back with Clarke and Sullivan from the Iron Horse public house to 121 Sullivan
went up the steps to her aunt Margaret’s flat at 26 Honeysuckle Close and
knocked for quite a long time, perhaps ten minutes. Clarke had gone on, and
during that period Carly John did not have sight of her. Most significantly of
all, from the prosecution point of view, Carly John said that when the three of
them reached 121 Clover Road for the second time Clarke left them, saying that
she was going to “see if the kids were all right”. She returned
after ten to fifteen minutes. She had changed her clothes. She was wearing
light blue jeans and an orange Adidas jumper and she had with her a black bin
liner type of bag from which she fed clothes into Mark Morris’ washing
machine and asked him to wash them. About ten minutes after her return to No
121 Clarke left again, this time with Carly John and Sullivan, and as they got
outside Clarke said “Oh my God, look at the cloud of smoke up there, it
must be Diane Jones’ house”. At that stage, Carly John and
Sullivan were not in a position to see the home of Diane Jones, but they ran in
that direction. There was no one else about, and indeed there was other
evidence that until the fire began it was a quiet night on the Gurnos Estate.
Mr Pitchford had a lot of work to do to challenge the evidence in chief of
Carly John and he had the material he needed to hand in the shape of the
answers given by Carly John when interviewed by the police and the statements
which she had given before and after 15th February 1996. The technique which
he used and which we deprecate, was to draw the attention of the witness to
large chunks of interview or statements by reading those chunks out, and then
asking the witness one or two short questions about what had been read. The
witness and the lawyers had a copy of the interview record or the statement
which was being used. The jury did not, and they cannot have found the process
easy to follow. Even the witness was not always able to follow. At one point,
after Mr Pitchford had been reading an extract from a police interview which in
transcript covers 43 lines the witness said “Excuse me. Could I ask
which page you’re on?”
dangers of this cross-examination technique are obvious. Not only does it
lengthen the proceedings, but it makes the cross-examination difficult for the
jury to follow, and it must be especially difficult for them not to muddle the
current evidence of the witness with what they hear that she said on some
previous occasion. Of course her current testimony can and should be tested
against what she has said on earlier occasions but the testing needs to be done
selectively, and with precision, if the jury is to follow and the witness is to
receive fair treatment in the witness box.
Pitchford’s cross-examination was to a large extent successful. Although
Carly John maintained throughout that she was afraid of Clarke and Sullivan she
accepted that neither of them had told her to lie to the police. She also
accepted that when questioned after arrest she felt under a lot of pressure in
a situation where it was obvious, both to her and to her father, that if she
went on saying what she had previously been saying she would be unlikely to be
released. She was conscious of the fact that the police, no doubt as a result
of misinformation, were putting to her some things which were not true, for
example that at the time of the fire Clarke had no use for electric tokens.
When reminded in cross-examination of the course of police enquiries she
eventually said that what she had originally been saying to the police was
right, and that she had only altered her account in order to get out of police
custody. In substance she confirmed Clarke’s alibi for the time when the
fire was started, said that Clarke’s remark as to which house was on fire
was only made when Diane Jones’ house could be seen, and discounted the
suggestion that Clarke changed her clothing at any time before about 6 am. The
dirty washing was, she said, taken to No 121 much later on. That is merely an
indication of some of her changes of position. It is not an exhaustive list,
but for present purposes it will suffice.
of Mr Pitchford’s success Mr Aubrey, for Sullivan, was as we have said,
relatively brief, but Carly John was not prepared to say that she was not
afraid of Sullivan, so Mr Aubrey put to her the letters she had written to
Sullivan when Sullivan was in custody.
Mr Rees began to re-examine he asked Carly John about the attitude of those who
lived on the Gurnos Estate to the police and to those who gave information to
the police. Mr Pitchford objected, contending that the object of prosecuting
counsel was to attack the credit of the witness he had called. Mr Rees’
response was that he was exploring possible reasons for those earlier versions
given by the witness to the police which the prosecution contended were untrue,
and the judge declined to intervene. That decision is now challenged in ground
A of Clarke’s grounds of appeal, which also complains that later in his
re-examination Mr Rees drew an unfavourable comparison between the witness and
her parents, implied that the witness knew in advance of an attack on Diane
Jones, and/or was an accomplice, and drew attention to the witness’
failure before trial to retract her allegations against Clarke. The extra
matters were raised with the trial judge who ruled against the prosecution in
relation to the suggestion that Carly John may have been an accomplice, but who
did not otherwise interfere.
our judgment prosecuting counsel was fully entitled to explore with Carly John
her understanding of the local attitude to the police, and to those who
assisted the police. Her answers might well have helped the jury to evaluate
what she had said on different occasions. The questions to Carly John about
her parents, who were on holiday abroad at the time of the fire, were
unobjectionable when considered in context. Counsel was investigating an
offensive reference by Carly John to her mother in a letter introduced into
evidence by Mr Aubrey. The effect may have been to draw an unfavourable
comparison between decent parents and a difficult teenager, but that fact did
not render the line of re-examination inadmissible. As Mr Rees pointed out, it
had been suggested in cross-examination that Carly John lied to the police
because she was worried about her child. The prosecution was therefore
entitled to show that the child was in safe hands, and that Carly John knew
that. The accomplice point is covered by the judge’s ruling, and
prosecuting counsel was plainly entitled to assist the jury to test the value
of Carly John’s change of position in the witness box by eliciting what,
if anything, had preceded it.
may well be that the tone of the re-examination was redolent of
cross-examination, and defence counsel were naturally anxious to preserve the
gains that they had made, but in our judgment the criticisms now made of the
judge’s rulings are unsubstantiated and this ground of appeal fails.
John - Final stages
re-examination, like the cross-examination which had preceded it, proved to be
a success, but, as Mr Rees pointed out in his submissions to us, Carly John did
not simply revert to what she had said to the police officers after her arrest,
and had subsequently said in her evidence in chief. She completely discounted
her earlier evidence that Clarke had said that she could not wait to get her
hands on Diane Jones and had threatened to petrol bomb her house. That was,
she said, not true. She had said it because she was under a lot of stress at
the police station, and she had repeated it in the witness box because she
thought counsel wanted to hear what was in her statement. She confirmed in
re-examination that the Lucozade which Clarke brought back from the garage was
“a rusty colour” and “had no fizz to it”. She said
that when she and Clarke made their first visit to the home of Mark Morris at
121 Clover Road Clarke left her for a time. She also confirmed that on the
return journey from the Iron Horse public house Sullivan did knock at her
aunt’s home for about 5 minutes, and during that period Carly John could
not account for the whereabouts of Clarke. As to what happened when they got
back to 121 Clover Road Carly John said that it was true that Clarke left
herself and Sullivan at the door of No 121 and did not come back for ten to
fifteen minutes. When she returned she was wearing an orange Adidas T-shirt
and had a black bag containing clothes which she asked Mark Morris to wash.
When they left No 121 Clarke made her remark about the fire being at Diane
was part of the case for the prosecution that at about 11.15 pm Clarke had done
a little recognisance in the vicinity of Diane Jones’ home. That was
based on the evidence of Tammy Jones who said that at that time she saw two
girls, one of whom she recognised as Clarke, near to 27 Marigold Close, which
was opposite to the home of Diane Jones. Clarke denied being there at any
relevant time before the fire, and Carly John never accepted the suggestion
that she was with Clarke at that place. Similarly she never agreed that she
had been left by both Sullivan and Clarke. So, Mr Rees submitted, Carly John
showed that she had a mind of her own.
re-examination had been completed Mr Pitchford sought leave to cross-examine
further in the light of the re-examination, on the basis that he had terminated
his cross-examination prematurely once he obtained the co-operation of the
witness. The judge gave leave, and it was within his discretion to do so, but
it is a discretion to be very sparingly exercised. Carly John was then asked
about her later police interviews covering ground which had been covered many
times - the Lucozade bottle, and what Carly John saw of it, whether Clarke had
changed her clothes before she returned to the home of Mark Morris, and whether
Clarke had made any threats about what she would do to Diane Jones. Mr
Pitchford reminded Carly John that she told the police that Clarke once, in
her house, had said of Diane Jones “I’ll petrol bomb her”.
Mr Pitchford suggested at once, and again at the end of his further
cross-examination that no such threat had been made, but Carly John refused to
accept that she had lied. So the threat to petrol bomb, which had apparently
disappeared during re-examination, was revived. Carly John went back to saying
that Clarke changed her clothes “when we got back down to her
house” sometime after the fire, and that when she returned to No 121
Clarke had no black bin liner in her hand. Carly John said that she had been
warned by a police officer of the possible consequences of perjury, and when
asked if she was terrified to depart from her witness statement she said
“Yes”. Nevertheless she refused to accept Mr Pitchford’s
proposition that “Donna never left 121”. Carly John accepted that
there was nothing odd about the bottle of Lucozade that Clarke had with her,
and Mr Pitchford continued -
And the reason why you had to start telling the police something different was
because you had decided to tell lies about Donna, hadn’t you?
Because you thought that if you didn’t tell lies about Donna you would
be charged with murder too.
her final re-examination Carly John confirmed that there was a threat by Clarke
to petrol bomb Diane Jones, and that Clarke did leave her and Sullivan for ten
to fifteen minutes when they got back to No 121.
for Clarke to Answer?
the close of the prosecution case Mr Pitchford submitted that there was no case
for his client to answer. The judge ruled against him, and in ground C of
Clarke’s grounds of appeal it is contended that the judge was wrong to
make that decision. In considering this ground of appeal it is, in our
judgment, important to bear in mind the nature of the statutory power of this
court. We may only allow an appeal against conviction if we think that the
conviction is unsafe (see section 2 of the Criminal Appeal Act 1968 as
amended), and if at the end of the day the test is not satisfied it is
immaterial that at a particular point in the trial a submission has been
rejected which arguably ought to have succeeded. We cannot shut out of our
minds what happened thereafter. Although that is not the way in which this
court expressed its conclusion in
 Crim LR 487, to which our attention was invited by Mr Mansfield, it
seems clear that the court in that case was not addressing itself to the words
of the statute, which seem to us to make the position clear. However, we do
have the benefit of a copy of the lengthy and detailed written submission which
was used by Mr Pitchford at the time when he made his submission to the trial
judge as well as a transcript of the judge’s ruling, and it is clear to
us that the judge approached his task in the right way, and with the relevant
authorities well in mind. He had before him -
an abundance of evidence fit for consideration by a jury which suggested that
right up to the time of the fire that Clarke was anxious to continue her
relationship with Shaun Hibberd, and hated Diane Jones even to the extent, if
the evidence of Carly John was accepted in its final form, of being prepared to
talk of petrol bombing the home of Diane Jones.
Evidence capable of being regarded as evidence of preparation, namely the trip
to the garage, as illuminated by the lies told about it by Clarke and Hewins,
if the jury should be satisfied that those two defendants did indeed lie.
Evidence of opportunity - on any view Clarke was near to the scene of the fire
when it started, and if Carly John was right in saying that she was not at 121
where was she? Why was she lying about her whereabouts?
Evidence of guilty behaviour after the fire began. If Carly John was right
Clarke was able to say which house was on fire before Diane Jones’ house
could be seen. Thereafter, on any view, Clarke showed a surprising interest in
police radio transmissions, and she changed her clothing at some stage during
the night. Louise Price had given evidence which suggested that Clarke
returned home alone, and changed well before dawn. Some support for that might
be obtained from the evidence of Carly John. The defence sought to explain the
evidence of Louise Price, but the jury was not bound to accept the explanation,
and its acceptability or otherwise was a matter for them. Thereafter there
were what the jury might regard as lies told to the police.
judge gave consideration to the evidence of Carly John, which he recognised as
being in many respects flawed by her contradictions, but he continued -
John is pre-eminently a witness to be considered by the jury, not by the judge
and not by counsel. Mr Pitchford contends that without the evidence of Carly
John there is no case for his client to answer. I am wholly unable to agree
with that submission, which however no longer arises.”
our judgment that was not only a ruling which was open to the judge at the time
when it was made. It was the only ruling which at that stage he could properly
make in the circumstances.
case against Hewins
for Sullivan and counsel for Hewins also made submissions at the close of the
prosecution case, and those submissions were rejected. We need not consider
the submissions made on behalf of Sullivan, but as the prosecution case against
Hewins at the end of the trial was very much the same as it had been at the end
of the prosecution case this is a convenient moment to consider her position
first thing that needs to be emphasised is that, as we have already said, there
was no scientific evidence to show that the petrol bought at Snow’s
Garage was the petrol used by the arsonist. Secondly, there was nothing
patently unusual about the trip to the garage itself. Hewins had taken Clarke
to the Esso Garage at Dowlais on the previous evening to purchase an electric
token, and although the amount of petrol purchased at Snow’s Garage was
small there was evidence that Hewins did purchase petrol in small amounts. The
prosecution sought to demonstrate by reference to the video recording that at
the garage the two women behaved suspiciously in that whilst using the petrol
pump Hewins left the car door open, so that it was not possible for anyone in
the position of the video camera to see whether the nozzle of the hose was
inserted into the petrol tank, and after the petrol had been obtained the car
was driven to where the vacuum cleaner was situated. That meant that for about
six minutes it, and the two defendants, were out of sight of the camera. In
our judgment neither of those points has any real substance. Car drivers do on
occasion leave their driving doors open as Hewins did. We have seen the video
recording, and her actions appear innocuous. As to the missing six minutes
there are still photographs which show that the whole forecourt, including the
area adjacent to the vacuum cleaner, was very public and well lit, and there
was evidence to indicate that in addition to the petrol station staff there
were other people about. Certainly the petrol which was used to accelerate the
fire could have been obtained by Hewins and Clarke from Snow’s Garage.
Hewins could have fed it from the pump into a petrol can sitting inside the
car, and at some stage thereafter it, or some of it, could have been
transferred from the petrol can to some other container, perhaps the Lucozade
bottle which was seen by Louise Price and Carly John. But there was no
evidence to show that is what happened. Mr Rees rightly contends that the
garage evidence should not be considered in isolation. Hewins was not only the
aunt of Clarke, she was also an intimate friend. They saw each other
regularly. She would know of Clarke’s feelings for Shaun Hibberd and
Diane Jones. If on 11th October 1995 Clarke needed petrol to start a fire she
might well need the assistance of Hewins to get it, and if Hewins gave that
assistance she could not fail to know what was afoot. That we accept, but the
difficulty is that, as we have said, there is no evidence to show that the
assistance was given. Even if the evidence against Clarke is such as to enable
the inference to be drawn that at 1.50 am she started the fire it does not
necessarily follow that the petrol she used came from Snow’s Garage.
Petrol is relatively easy to obtain, and after the fire two small containers
were found near to the fire which had some petrol in them. Where that petrol
had come from it is impossible to say.
course the prosecution attaches considerable weight to Hewins’ behaviour
after the fire. In our judgment it is safe to conclude that she remained close
to Clarke and was a party to a conspiracy, probably orchestrated by Clarke,
which sought to mislead the police by -
at first omitting all reference to a visit to any garage, and then gradually
shifting position to try to take account of what the conspirators believed that
the police already knew.
Laying down false trails.
grounds for suspicion and lies cannot alone constitute a positive case of arson
with intent to endanger life. In
(1994) 99 Cr App R 326 Farquharson LJ, giving the judgment of this court, said
if they are proved to have been told through a consciousness of guilt, may
support a prosecution case, but on their own they do not make a positive case
of manslaughter or indeed any other crime.”
observation does of course have to be read in context, but in the case of
Hewins there is here really nothing other than lies. The matter can perhaps be
tested this way - given the general anti-police attitude of those who lived in
the Gurnos Estate, and given the bond of affection between Clarke and Hewins -
suppose that -
Clarke, without consulting Hewins, did start the fire, or become suspected of
having done so, and that at least is something that we know did happen, or -
Hewins, having helped Clarke to obtain petrol in the knowledge that Clarke
intended to use it some way to frighten Diane Jones, but not knowing of any
intent to endanger her life -
either of those events, might Clarke and Hewins then have decided to try to
head off suspicion by trying to conceal the purchase of petrol on the relevant
night, and inviting the police to look at other “suspects”? If, as
we believe, in the case of Hewins that possibility cannot be regarded as
unrealistic, then in our judgment her conviction cannot be regarded as safe,
and we must therefore allow her appeal.
given her evidence in chief Clarke was cross-examined by Mr Rees for the
prosecution. Ground D of her grounds of appeal asserts that the trial judge
was wrong to permit her and later Hewins to be cross-examined on documents
which were inadmissible against each of them. Mr Pitchford and Mr Mansfield
submitted that in general it is impermissible for prosecuting counsel to
cross-examine one defendant by reference to a record of interview or a
statement made by another defendant, or by reference to any other document to
which the witness is not a party, although of course questions can be based on
information drawn from those various sources. In fairness to both Mr Rees and
the trial judge it is right to say that some of the authorities in relation to
this branch of the law post-date this trial, and have not been widely reported,
but the principles are now, as it seems to us, quite clear. In
(1989) 89 Cr App R 258 the appellant was cross-examined by reference to a diary
found in the possession of his girl friend which was inadmissible against him.
He was repeatedly asked what the writer meant by her entries, and at page 262
Lord Lane CJ said -
seems to us there are two objections which should properly be made to that line
of cross-examination. First of all it is quite improper to ask a witness to
explain what a third party means by a document written by that third party ....
Secondly, perhaps more importantly, it is, in our judgment, quite improper for
counsel to take in his hands a statement which is inadmissible vis-a-vis the
witness whom he is cross-examining, let alone allowing the jury to have a copy
of the statement in their hands whilst he is doing that, and then to ask the
witness to explain, almost sentence by sentence, the highly damaging
statements, inadmissible against him, which the maker of the document had
is of course perfectly possible and perfectly proper for questions to be put in
cross-examination such as ‘were you in such and such a public house on
such and such a day? Were you with such and such a person?’ But to link
it, as was done here, with the contents of a document inadmissible against the
witness being cross-examined was, in our judgment, a matter which should not
v Hickey and others
30th July 1997 unreported, the Carl Bridgewater case, complaint was made of
persistent improper cross-examination of one defendant by reference to
statements made by other defendants which were inadmissible against him. At
page 277C of the transcript Roch LJ, giving the judgment of the court, stressed
that the validity of such criticisms can only be assessed by having regard to
the context in which the questions were put, but at 279B he continued -
and impressions must inevitably play a large part in the jury’s
assessment of and reaction to the evidence as it unfolds before them. For
questions in cross-examination to create the impression (even inadvertently)
that a particular piece of evidence is evidence relevant to the case against
the defendant when it is not, is unfortunate, as it misrepresents the
court then examined the way in which cross-examination was conducted in that
case, and condemned it. The technique was, as it seems to us,
indistinguishable from that used by Mr Rees in this case. Finally, in
 Crim LR 570, the defendants and a co-accused were charged with reckless
arson after a fire which caused serious damage to a church. When Gray gave
evidence the judge allowed the prosecution to cross-examine him by reference to
Evans’ interview, which indicated that Gray was with Evans when the
co-accused was recruited to go and set fire to the church. One of the grounds
of appeal was that the cross-examination was improper because its effect in
relation to Gray was to confer on Evans’ interview a status which it did
not enjoy. Counsel for the prosecution contended in this court that the
technique used was legitimate and commonplace. He argued that no damage was
done because if the defendant being cross-examined rejected what was being put
to him that was an end of the matter, but Hutchison LJ, giving the judgment of
the court, rejected that submission, saying -
think that the cross-examination cannot have been undertaken with any
expectation that the witness might admit or adopt those parts of Evans’
interview. The general effect of it (whatever the intention) seems to us to
have been to deploy what Evans had said in interview as though it were evidence
and thus denigrate or otherwise undermine the witnesses own account. ...... it
was, to borrow the words used by Roch LJ, a cross-examination which created the
impression that the prosecution were relying on Evans’ interview against
Gray ‘by equating its evidential status with that of evidence given by
the prosecution witnesses’ when in truth it was no evidence at all
against Gray. ...... of course we are not saying that it is never appropriate
to ask a witness a question about what appears in the interview of a
co-defendant; there may be particular circumstances in which that is
permissible. What is certainly inappropriate, as the case of
and the observations of Roch LJ in
show, is to use the interview, or statement, or whatever other inadmissible
document may be in question, as though it were evidence in the case against the
defendant being cross-examined. Certainly in a case such as the present where,
as we have indicated, there can have been no sensible expectation that Gray was
going to adopt what Evans had said, such cross-examination should be strictly
avoided. If it is not avoided, the judge’s task in making the jury
understand the evidential status of the interview or statement or whatever it
may be is made very much harder, and real prejudice may be caused to the case
of the defendant against whom it is inadmissible.”
Having set out the law we have to apply we turn now to look at what happened in
the present case.
Volume 25 of the transcript prosecuting counsel deployed Sullivan’s
statement of 16th February 1996 as a springboard for an attack on the character
of Clarke. Mr Rees now submits that no damage was done because Clarke accepted
Sullivan’s assessment. In fact she did not do so. Having shown some
initial willingness to do so she then firmly rejected the assessment, and the
jury was left to contrast the oral evidence of the witness with the printed
record they had in front of them, showing what Sullivan had said about her.
Similarly, in Volume 26 at page 30D Clarke was questioned about what Sullivan
had said about Carly John -
Just look at Page 344, please, bottom line: ‘I know that Carly is afraid
of both myself and Donna as we both have a reputation for fighting’. Yes?
Do you accept that Carly John was afraid of you?
That’s Denise’s opinion.
I am asking you whether you agree with it?
I don’t know.
Think about it, please, an answer ‘I don’t know’ is not very
I don’t know, I can’t say what Carly thinks because I don’t
know what Carly thinks.
Was she afraid of you?
I don’t know.
Did you have a reputation for fighting?
unspoken invitation to the jury was to accept Sullivan’s assertion that
Carly John was afraid of the witness even though that assertion had no weight
at all as evidence against Clarke.
to Volume 25, we see at page 49 a statement made by Sullivan to the police
being used as the back drop for a series of questions about the critical period
when the fire was started.
If we just look, please, at 351 in the statement of Sullivan, do you see about
6 lines down a sentence beginning ‘on reaching Mark’s home, Donna
told us that she was going home to fetch some washing for Mark to do for her as
her washing machine was broken’. Is that true or not?
It is not true is it?
In fact, what you told Denise Sullivan and Carly John was that you were going
home to check on the children, was it not?
counsel cannot have expected the witness to agree with any version of the facts
which undermined her alibi, and the only point of referring to Sullivan’s
statement at this stage can have been to unsettle the witness, and to remind
the jury of the contrast between what she was saying and the account given by
Sullivan which, in due course, in considering the case against Clarke, the jury
would be told by the judge to disregard. In dealing with this critical period
of time perfectly proper questions were interleaved with references to
Sullivan’s statement in a way which cannot in reality have failed to give
the statement a status that it did not enjoy. For example at 50C -
In fact, you never went home that night to check on the children, did you?
And even when you left Mark Morris’s and saw the fire, you were not
going to go and check on the children, were you, you were going home to read
the letters, you told Mr Pitchford?
Yes, but I was in my house with my children, wasn’t I?
You were not going home to check on the children, were you, or do you want to
change the version you gave last week?
Its the same thing, isn’t it, going down to my house to read the letters
and check on the children at the same time.
Go back to the statement: ‘she then left us and walked in the general
direction of her home which is situated behind Mark’s home and to the
right, although I did not see Donna go into her home’. Yes?
That is true, is it not?
You did leave Carly John and Denise Sullivan at Mark Morris’s.
Volume 27 prosecuting counsel returned to what Sullivan had said to the police
on 16th February 1996 when enquiring into Clarke’s affair with Shaun
Hibberd, and its effect upon her relationship with Diane Jones. At page 8B the
transcript reads -
Please go to page 343. Of course, we are now talking about a time when
Sullivan has eventually told the police that you did leave at Auntie
Margaret’s and were out of sight for some minutes and you did not go into
Mark Morris’s with them, you understand the point in time where we are
at, do you not?
‘I am aware from talking to both Donna and Diane that they hated each
other’. Is she wrong about that?
So you say you did not hate her?
Right about Diane Jones’s feelings towards you, but wrong about your
feelings towards Diane Jones?
‘As a result of the affair with Shaun.’ And then she describes
... and I am not going to go through them ... she describes some incidents that
you had told her about, there is the machete incident, the horse incident, and
then this incident, halfway down the page: ‘Another incident was when
Diane called at Donna’s and found Shaun in the house.’ What
incident is this?
I don’t know what she is talking about.
Come on, Miss Clarke.
I don’t know.
Which incident is this, when Diane Jones caught Shaun Hibberd at your house?
Diane Jones have (sic) never been to my house.”
prosecuting counsel cannot have expected Clarke to agree with Sullivan’s
interpretation, or even to provide information which would be of any value if
in due course Sullivan were to give evidence herself, and whatever may have
been the intention of prosecuting counsel the jury in reality must have been
led to measure Clarke’s answers against the inadmissible written record
of what Sullivan said to the police.
then drew the attention of the witness to a statement made by Hewins on 26th
October 1995, which was also inadmissible against Clarke, and so he was able at
page 10C to put this question -
So both Sullivan and Hewins have got it wrong when they describe you telling
them of an incident when Diane Jones came to your house?
unspoken invitation to the jury was to side with the majority.
asking a number of questions based on Hewins’ interview of 14th February
1996 Mr Rees put his challenge at page 13B in this way -
The fact is, Sullivan was right when she said you hated Diane Jones and Diane
Jones hated you, that is right, is it not?
Hewins was right when she told the police that there were loads and loads of
rows between you, is that not right?
again the jury was, at least by implication, being invited to prefer witnesses
whose evidence was not admissible. Similarly at page 15D -
Of course, Annette Hewins was seeing you -- and I am sorry to repeat myself
-- daily at this time, was she not?
Let us just see what she says about this to see to what extent you agree with
it. Page 21. Hewins says: ‘I thought she liked him,’ - meaning
Shaun Hibberd, yes?
‘What do you think she felt about him? Well, I thought she really liked
him, you know, she thought, well, I thought, well, she thought the world of
him. I’d even had said that I thought she loved him like, do you know
what I mean.’ Where would Hewins get that impression from, Miss Clarke?
I don’t know, that’s her opinion.”
Clarke denied that before she began to go out with Shaun Hibberd she used to
look like a gypsy she was reminded of what Hewins had said to that effect in
her interview on 14th February 1996.
on Mr Rees used Sullivan’s interview of 2nd November 1995 to suggest that
in reality Clarke was very scared of what was going to happen when Simon Owens
was released from prison. The witness and the jury were reminded of what
Sullivan said about the correspondence passing between herself and Clarke,
which seemed to be in sharp contrast to Clarke’s evidence that she was
not fearful of Owens’ release.
page 34G of Volume 27, when the witness denied wanting to visit Shaun Hibberd
in prison, and wanting no contact with “Ossie” Mr Rees mounted an
immediate challenge by reference to Sullivan’s interview of 2nd November
Please look at Denise Sullivan’s bundle, still dealing with your
relationship with Shaun Hibberd and your feelings towards him because, as you
know, I am suggesting you are not telling the Jury the truth about your
feelings towards Shaun Hibberd. Please turn to Page 19, this is an interview
on the 2nd November: Casey says to her: ‘What does Donna feel for Shaun?
Have you got that?
‘Well she likes him, you know. Just like him? Yeah, she did like him.
In a big way? I don’t know so much because before she used to say,
‘I really like him a lot.’ But you know she hasn’t said much
about him now like, I know she still likes him though.’ Correct?
Would you agree with what is said there?
Oh, you would not?
I liked him, yes.
You liked him but you are saying you did not like him a lot, is that it?
I liked him, yes.
What do you disagree with in the passage that I have just read out to you?
I liked him.”
the jury is being invited to contrast the assertions of the witness with what
Sullivan said to the police.
and again what Sullivan had said in interview was put to Clarke, extracts which
she was never likely to accept and did not in fact do so. For example, at
Volume 30 Page 50G Mr Rees quoted this passage from Sullivan’s statement
dealing with what happened when Sullivan and Clarke got back to Clarke’s
home at 6.30 am on the day of the fire -
was only then that I noticed that Donna had changed her clothing from those
which she had on prior to the fire. She now had on an orange or peach coloured
V-shirt and different trousers, although I cannot recall what colour the
trousers were. Donna must have changed her clothes before we entered her house
at 6.30 because she did not change them while I was at her house.’ Do
you agree with that?
Clarke could not have agree that she changed her clothes
that early morning return home, but the jury was reminded that Sullivan had
Volume 29 from page 88 onwards generous extracts of Sullivan’s interview
of 14th February 1996 dealing with the critical period from 1.35 am at Mark
Morris’s home are quoted verbatim, and at page 96D the account given by
Sullivan is linked with Carly John’s evidence, thus using inadmissible
evidence to support evidence which was admissible as an explicit basis for
cross-examination of the witness.
Please turn over to second paragraph: ‘I would like to say that although
Donna had left us to go and get some washing for Mark to do, I did not see her
bring back any washing into the house. Donna then said that she wanted to take
some washing that Mark had done for her earlier in the day and she asked us to
go with her. We agreed and Mark walked us to the front door, Mark opened the
front door and I walked out first. Before I go any further, I’ve just
remembered that when Donna originally left us at Mark’s house it was for
her to go and check on her children and not to collect washing’ Yes?
Basically there, she is saying the same as Carly has said, hasn’t she?
Which is not true.
You say it is untrue.
Please move on to Page 366, this is the retraction statement that she gave,
halfway down the last paragraph: ........”
Volume 30 Page 9 Mr Rees perfectly properly reminded Clarke of the evidence of
Carly John that when Sullivan was crying after the fire Clarke had said to her
“come on, it doesn’t matter.” Clarke denied saying “it
doesn’t matter”, and she was immediately reminded of what on that
topic Sullivan had said to the police. The whole issue of Clarke’s
reactions to the fire and her belief as to whether Diane Jones and her children
were in the house was explored through the medium of what Sullivan had said.
For example at Page 11H -
If you look at the next paragraph: ‘For a week after the fire,
Donna’s personality changed. She cried often. She was very withdrawn.
I was surprised at this because of her hatred for Diane.’ You were
crying because of the enormity of what you had done, were you not?
No, I hadn’t done nothing, and everybody was crying.
The killing of the two children ------
I didn’t kill nobody ------
As well as Diane Jones.
I didn’t kill nobody. I never set fire to nothing. I’m innocent.
I haven’t done nothing wrong.
‘However, after the time she became more of herself again and has become
as hard a person as she ever was.’
Denise has never seen me upset, so how can she say?”
at Volume 30 Page 29C -
‘I do not know how Donna got there. She did not pass me at any time. I
then walked up to Donna and asked her for a cigarette for Deane. She then
joined us and gave Deane a cigarette. I told her that Diane and children were
in the house and she started crying. She said, “Who told you
that?’ I said, ‘Tammy.’ She then said to Tammy, ‘They
can’t be. I’m sure.’ Tammy said, ‘Yes, I heard Diane
crying for somebody to help her.”’ Did you say to Tammy,
‘They can’t be’?
You did not?
‘Donna then said, “Come on, let’s get out of here.”
Did you say that?
‘We then walked along the path between Tammy Jones’s house and
Marigold flats and stopped in the small car park which is situated behind the
first row of flats in Marigold Close. I cannot remember the exact words of
what we said, but we then had the following conversation. Donna said, I
can’t believe the children and Diane are in there . They’re not
supposed to be in there. She’s in bingo.’ Yes?
Did you say that?
Did you say something like that?
No. But you’re saying how can she get out?
Did you say, ‘I can’t believe the children and Diane are in there.
They’re not supposed to be in there. She’s in bingo’?
You see, Sullivan is suggesting that you thought the house was empty, yes?
by implication, the jury was being invited to accept that what Sullivan had
said was right.
did not give evidence, so when Hewins gave her evidence everyone knew that what
Sullivan had said to the police was not going to be adopted by Sullivan in the
witness box. It could not therefore form any part of the prosecution case
against either Clarke or Hewins, but nevertheless Mr Rees, when cross-examining
Hewins, used Sullivan’s material just as he had done when cross-examining
Clarke. At times the object may well have been genuinely to see if the witness
would agree, or to seek to strengthen the case against Sullivan, or to
demonstrate collusion between the defendants, but for the most part the object,
and certainly the effect, can only have been to cause the jury to take into
account inadmissible material when evaluating the evidence of the witness.
Other written material,
inadmissible against Hewins, was used as an aid to cross-examination in the
same way, in particular letters passing between Clarke and Sullivan, between
Clarke and Ossie, between Clarke and Jason Hibberd, and the record of
Clarke’s interview with the police. So, at Volume 18 Page 15 when Hewins
denied knowing that by June 1995 Sullivan had become Clarke’s best
friend, Mr Rees immediately referred the witness and the jury to
Sullivan’s interview -
Can you just look briefly at Denise Sullivan’s interviews for a moment?
I want to see whether what she says is right or not so far as you are
concerned. Page 243, please. Top of the Page. Do you see the question,
‘Recently from, say, the middle of last year, you’ve been quite
close to Donna, haven’t you? (A.) Yeah. (Q.) Would you say that you would
spent most your, most of your time with her? (A.) Yeah. (Q.) Would you say it
would be fair to say that you would see her most days of the week if not every
day? (A.) Yeah. (Q.) And you would spend a large portion of the day and/or
the evening with Donna? (A.) Yeah. (Q.) Would you go out shoplifting
together? (A.) Yeah.’ All right?
Did you know that, that Denise Sullivan spent most of her time with Donna
Clarke from the middle of 1995 onwards?
Page 23D Mr Leighton Davies for Hewins pointed out that as the judge had said
to the jury “many weeks ago” the contents of a co-defendant’s
interviews are not evidence against another defendant, but Mr Rees was allowed
to proceed uninterrupted. He justified doing so by saying -
is the evidence in the case of Denise Sullivan, first. Secondly, I want to
find out whether this defendant agrees with it or not.”
first of those reasons was irrelevant when cross-examining Hewins. The second
could be relevant but all too often there was no realistic prospect of
Volume 18 Page 24 Mr Rees made skilful use of Sullivan’s statement of
18th February 1996 to implant the idea in the jury’s mind that there may
have been a fuel container in the passenger compartment of the Sierra car on
the evening of 10th October 1995, something of which there was no direct
evidence, and which Hewins denied -
Do you remember you said that you carried a fuel container, but not in the car
‘On these occasions I’ve seen a black fuel container both in the
car and in the boot of the car. This container is usually full.’ Did
you keep the container mostly full or not?
No, I never kept a container with petrol in my car.
‘And is mostly kept near the front passenger seat.’
No, if ever I was in the car, I always had the can in the boot. I never had
the can inside the car.
Can we just look at that sentence then. You accept that you did have a black
fuel container, did you?
Yes, I remember seeing a black -- I remember seeing a black can once or twice,
You saw it once or twice?
I never took no notice of cans because my husband always had cans, do you know
what I mean?
She is right that there was a black fuel container?
Oh, I’m not saying she could have seen one in the boot, yes.
But, she is wrong when she says it is usually full and mostly kept near the
front passenger seat?
later in his cross-examination Mr Rees returned to the topic of the black
petrol container which had been found in the Sierra on 14th February 1996 -
Found in the front passenger well.
The Fiesta was my car and the Sierra my husband used to use.
Where Denise Sullivan said she used to see a petrol container.
Denise had never seen a petrol container in my car. She may have seen one
with Phillip when he’s given her a lift, but she’s never seen one
when she’s been with me.
So, she is wrong about that, is she?
again, as Mr Mansfield submitted, the jury was reminded of the inadmissible
material to support the wholly unsubstantiated proposition that there was a
petrol container in the passenger compartment of the Sierra on 10th October
Volume 19 at Page 12E Hewins denied ever taking drugs, and was at once referred
to a letter from Clarke to Ossie in which it was said that “Netty is on
the billy”. Hewins was known as Netty, and billy was another name for
“speed” or amphetamine. There was not even a suggestion that
Hewins had seen the letter at any material time but, inadmissible though it
plainly was, it was being used to discredit her.
Volume 19 Page 54, by reference to Clarke’s interviews, Hewins was
cross-examined about Diane Jones’ threat to tell Ossie about
Clarke’s affair with Shaun Hibberd. Hewins said she knew of no such
threat. She was then asked to look at Sullivan’s bundle in which
Sullivan in answer to a police officer say that she had heard that such a
threat was made, and Mr Rees continued -
Are you sure she didn’t tell you, like she told her friend Sullivan?
No she never told me. She told me that Ozzy’s family had written to
Ozzy, but she didn’t tell me that Diane was going to write to Ozzy.”
implication clearly was that it was the inadmissible information from Sullivan
that was to be preferred, and as can be seen from this sort of question at Page
So it appears as though Denise Sullivan has got a totally different impression
from you, doesn’t it?
Denise and Donna were close in a different way.”
was then taken to Clarke’s interviews, to letters written by Ossie to
Clarke, and to letters exchanged between Clarke and Sullivan. She said more
than once that she had never seen any of them, but questions in relation to the
contents of the letters persisted, not least in relation to the letter written
by Clarke to Sullivan on 2nd October 1995 which, the prosecution contended,
foreshadowed the fire. So at Page 71A -
Can we just have a look at the other side of this page please to see if you
can help the jury on some of the expressions that are used, from your
experience of the Gurnos and Donna Clarke. ‘Howdy partner. I’ve
had your letter. Glad to hear you are getting the rest you need cos, Lacey,
when you get out, believe me, you’re going to be on a full fucking
mission with me, muling these Bronx street.’ Now, a mission can mean
violence, can’t it?
Well, I’ve never heard the word mission until after the fire.
You’ve never ....
When Denise come out and I started bothering ... Denise started coming
shopping with us, and that’s when I used to hear it.
You have never heard the word mission until after the fire?
I haven’t heard Donna saying it, no.”
a few questions later 71F -
‘Muling the Bronx streets.’ Muling can mean using violence on the
streets, can’t it, or hadn’t you used that expression or heard that
Not really no.
Not at all?
Not really no, that I can think of.”
one level it can be said that Mr Rees was simply seeking the assistance of the
witness to produce definitions of local words and phrases, but in reality she
was being tarred with the contents of the document which she claimed never to
have seen, and the prosecution was in no position to prove otherwise. When he
came to sum up in relation to the letter of 2nd October 1995 the judge did not
give the jury any specific warning that any inferences drawn from it could not
be used against Hewins who did not write or receive it, or (so far as was
known) ever see it, and to whom it did not even refer.
have spent some time dealing with what we regard the wholly unacceptable
cross-examination technique used in relation to both Clarke and Hewins, but we
must emphasise that the passages of transcript set out in this judgment are
only examples of passages in respect of which both Mr Pitchford and Mr
Mansfield have justifiably complained. In our judgment ground D of
Clarke’s grounds of appeal and ground 4 of Hewins grounds of appeal are
established, and the fact that each defendant was improperly cross-examined day
after day in a case where so much depended on their response to the
circumstantial evidence deployed against them makes it impossible for us to say
that in either of their cases we can now regard their convictions as safe. It
is no sufficient answer for the prosecution to say, as they do, that the trial
judge warned the jury that answers given by one defendant in the absence of the
other are not evidence against that other. In reality admissible and
inadmissible evidence were so intertwined that it was impossible for the jury
to apply the judge’s warning as they should have done.
conclusion makes it unnecessary for us to consider in any detail the remaining
grounds of appeal, but we should indicate in passing that we were not impressed
with any of them. The trial judge gave adequate directions to the jury as to
how they should approach the evidence of Carly John (Clarke’s ground F)
and we are not satisfied that there was any material misdirection of law or
fact in the summing-up (Clarke’s grounds G & H, and Hewins grounds
6). Mr Leighton Davies took a perfectly sensible forensic decision not to
adduce the additional evidence which Mr Mansfield invited us to consider in
relation to the interpretation of the video tape, and the evidence of Marcus
Journeaux would have added nothing of any substance to Hewins’ case
(Hewins ground 3).
only other point worth considering at this stage is the alleged inconsistency
of the verdicts. We accept that the Judge’s directions as to
manslaughter as a possible alternative verdict in relation to count 1 made it
in law logically impossible for the jury to convict the appellants on count 4
without also returning a verdict of at least manslaughter, if not murder, in
relation to count 1. But the judge rightly directed the jury that, because of
what is sometimes known as the doctrine of transferred malice, there could in
reality be no possibility of different verdicts in relation to counts 1, 2 and
3, and it seems to us highly probable that the jury were understandably
reluctant to convict either appellant of serious offences in relation to Diane
Jones’ children, not least because it was clear from the evidence we have
cited in this judgement that Clarke was distraught when she heard that the
children had died. Counsel for the appellants made no criticisms of the
Judge’s directions in law in relation to count 4, nor realistically could
they do so, and were it not for the grounds of appeal we have found to be
established the fact that the jury was generous in the way that it dealt with
counts 1,2 & 3 would not in the circumstances of this case lead us to
question the verdicts in relation to count 4 (Clarke’s ground I and
Hewins’ ground 2).
as set out earlier in this judgment there are other grounds of appeal which
have been established, and which have led us to the conclusion that the
convictions on count 4 cannot stand. In the case of Hewins one of her
successful grounds of appeal is that in reality there was no sufficient
evidence to prove the case against her, so in her case it would not in our
judgment be right to order a re-trial. In the case of Clarke the position is
different. There was in our judgment a clear case to answer, and the appeal
has only succeeded because of what happened when she was being cross-examined,
a sequence of events which distorted the conduct of the case. We therefore
order that in her case there should be a re-trial on count 4. A new indictment
will be required, but, having regard to the verdicts of the jury on counts 1, 2
and 3 and our conclusions in relation to ground I of Clarke’s grounds of
appeal we do not consider that counts 1, 2 and 3 of the present indictment can
or should be revived. It is however open to the prosecution to include a count
reflecting the present count 5 if it is considered appropriate to do so.
We accordingly direct that a fresh indictment be preferred by Friday 26
February -- that is to say Friday week -- and that Clarke be re-arraigned on
that indictment within two months of today's order. We propose that the
hearing be at Cardiff to commence on 13 April 1999.
aid was granted for leading and junior counsel and for a solicitor. An
application for bail was refused
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