Court of Appeal in Northern Ireland Decisions

Background facts

Ms OK

(1)   This witness was the daughter of the deceased and the accused. Her name was originally O Anne Mawhinney but she changed her name to KK in approximately 2006.  As noted above, at the date of the death of the deceased, she was approximately 6 years old.  MsKK was interviewed by the police on 29 May 1995, the day after the death of the deceased.  At the trial MsKK maintained that she had no recollection at all of that interview or its contents.  MsKK was cross examined by Mr Lyttle about certain portions of that interview and it seems that, ultimately, the prosecution agreed that relevant sections of that record could be admitted in evidence as exhibit D1.  The precise basis upon which that agreement was reached is not entirely clear, particularly in the context of the witness firmly maintaining a denial that she had any recollection at all of the interview in question.  Understandably the learned trial judge raised the question of admissibility and it may be, without being specifically articulated, that the trial proceeded on the basis of an agreement between the parties in accordance with Article 18(1)(c) of the Criminal Justice (Evidence) (Northern Ireland) Order 2004.

(2)        During the course of her police interview on 29 May 1995 KK described how she had got up at about 8.30 am, her sister J had arisen at 10.15 and her mother and father at about 11.00.  She said that she saw her mother going into the bathroom and going to the toilet.  She said her mother then got into the bath and when KK went in to use the toilet she observed that her mother was still in the bath asleep and snoring.  She said that when she first entered the bathroom her mother was sitting in the bath with the water up to between her stomach and her chest.  The second time she went in to use the toilet her mother was lying straight up and down in the bath.  Miss KK told the police that she used the toilet and went over to her mother and put her ear to her mouth to see if she was breathing.  She discovered that she wasn’t and, after sitting for a “wee minute” she then called for her father.  She told the police that, upon the second occasion she had entered the bathroom, when she went to check her mother’s breathing her mother’s head was below the water, her eyes were closed and the water was up to nearly her eyes.  She had lifted her mother’s head.  She called her father up to the bathroom. He lifted her mother out of the bath and put her down on the floor.  She said that he put her on her back and was pushing his hands into her stomach.  Her father then told her to phone for an ambulance.  During the course of the same interview it appears that MsK gave an account of the movements of her mother, herself and her younger sister on the Saturday prior to her mother’s death.  That seems to have been an accurate and detailed account which, to some extent, was corroborated by the taxi driver who had taken them into town upon one occasion. 

(3)        In July 2009, during a clarification interview in February 2010 and in a summary statement in October 2010, MsKK gave a very different account to the police.  That account formed the basis of the evidence that she gave during the trial.  MsKK described her home life to the jury confirming that her mother had a drink problem, that there was always shouting in the house and that her mother would have bruises inflicted by her father.  She said that on 28 May 1995 she had got up early, gone downstairs and sat on the sofa.  She had watched television until she had heard someone moving upstairs.  She then went upstairs and saw her mother sitting at the end of her bed in her bedroom.  Her mother told her that she was going for a bath and that, if she wished to, she could join her in the bathroom.  They went into the bathroom and MsKK sat on the toilet seat while her mother ran the water and got into the bath. She did not recall that she appeared to be drunk.  According to MsKK, her mother started singing her favour song ‘Danny Boy’ and she then heard her father coming up the stairs.  She said that her father entered the bathroom and closed the bathroom door behind him securing it with a bolt.  She said that her father had a wooden object in his pocket.  She said that her father went over to her mother and appeared to push her under the water.  When her mother pushed herself back up her father took the object out of his pocket and seemed to hit her with it.  There was a splatter of blood on the back and side walls of the bath. Her father put the object back in his pocket and appeared to push her mother back down under the water.  She told the jury that her mother seemed to struggle but “not with any sort of or not with a lot of energy.”  Her legs were sort of kicking but not with much success.  She said that after a while her mother’s movements ceased, her father stood up and walked out of the room.  MsKK said that she had gone over to her mother and shaken her shoulders and said “wake up mum”.  When there was no response from her mother she knelt down beside the bath crying.  Her father then returned to the bathroom, picked her up by the arm, took her into the bedroom and told her to stay there.  After a while her father returned, took her downstairs to the front room and told her to say that they had been on holiday and had found their mother in the bath when they had returned. Over the intervening years Ms KK gave significantly varying accounts of this incident including during examination by a psychologist and in a school essay.  Understandably, MsKK was subjected to a searching cross examination by Mr Lyttle with regard to the differences and inconsistencies between her 1995 police interview, the psychologist and school accounts, the subsequent interviews in 2009 and 2010 and her evidence to the jury. She was also closely questioned about apparent inconsistencies between her testimony and the forensic evidence e.g. the absence of significant deposits of blood in the bathroom, the lack of a relevant injury to the deceased, the fact that the top of the deceased’s head was not wet and why there was not more evidence of splashing on the bathroom carpet if there had been the degree of struggle that she described. She was also asked why she apparently continued to enjoy a normal relationship with her father for some significant time after the incident if she had witnessed him killing her mother. Without exception her responses were “I don’t know” or “I can’t remember.”

Gwen Mawhinney

(1)        Gwen Mawhinney is approximately 53 years of age.  She met the appellant in or about April or May of 1997 and married him on 31 October 1998.  They had one son born on 22 February 1999.   She said that, initially, the appellant had told her that his previous partner, the deceased, had died of cancer.  She said that in or around September 1997 when they were living in Suffolk the appellant had returned to Ireland for a week and, in his absence, she was contacted by a woman in the pub where the appellant had been working.  It appears that the appellant had fallen out with his employers and had left that employment.  Gwen Mawhinney said she was informed that papers had been found under the appellant’s bed at the pub which indicated that he had been charged with the murder of his former partner.  When she tasked the appellant about this information she said that he explained that he had been falsely accused and had spent 3 months on remand in the Crumlin Road prison.  She said that he was very aggrieved about this accusation and frequently discussed it with her thereafter, especially after he had been drinking.

(2)        Ms Mawhinney said that they eventually moved back to Ballymena and, at some time in or around 2002, during a further conversation relating to the appellant’s alleged persecution by the police, he mentioned for the first time that the deceased had suffered a fractured skull.  She said that she then said to him, “Well did you kill her or didn’t you?” to which he responded that he would tell her later.  She said that this conversation had taken place in mid- afternoon at a time when neither of them had been drinking.  Ms Mawhinney said that the matter arose again in conversation later that evening after their son had been put to bed.  At that time, she said that they had both consumed a couple of cans of beer.  She asked the appellant again whether he had killed the deceased and he replied that he had.  He told her that he had taken the kids down to Wilma’s because he was doing a job on some guy’s van and when he returned to the house he found Lorraine drunk and asleep in the bath.  He said that he pushed her head under the water, walked out of the house and got on with whatever he had to do.  He then returned to the house “made out” or pretended to resuscitate his partner and then called the ambulance.  He said that, at that time, the children were already down at Wilma’s.  When she asked how he had got away with it she said that the appellant explained that the police were stupid and that they had accepted the accuracy and validity of a receipt indicating that he was buying motor parts at Pennybridge at the time that his partner was said to have been killed.  According to Gwen Mawhinney, when he was relating this account, the appellant was cold displaying no emotion whatsoever.  She said that after that confession they carried on ‘as normal’, laughing and joking, that they had a few glasses of wine and went to bed.  Gwen Mawhinney said that the topic did not arise again in detail but the appellant would make occasional “digs” saying such things as “you are my wife you can’t testify against me”.

(3)        The relationship between Gwen Mawhinney and the appellant deteriorated and in April 2008 she initiated proceedings for divorce.  In June 2008 Gwen Mawhinney said she got drunk and phoned the police in Cambridge to report the accused’s alleged confession.  She said that, in the morning, when she was sober, she had made a similar phone call to the police at Ballymena.

(4)        Gwen Mawhinney was also closely cross examined by Mr Lyttle.  She was questioned at some considerable length about her evidence that the accused had said he had pretended to resuscitate the deceased, about whether she had ever seen the papers said to have been found in the pub, the amount of alcohol that she and the accused had consumed when she alleged that he made his confession, why she had described herself as “pissed out of her head” when they went to bed that night, why she had done nothing about bringing the alleged confession to the attention of the authorities for approximately 6 years and the extent to which her eventual report to the Cambridgeshire police was stimulated by the fact that she was drunk, that the accused had a new girlfriend and that he had failed to adequately assist her in terms of maintenance and paying off the mortgage.  During cross examination Gwen Mawhinney confirmed that, after reporting the matter to the police and her subsequent interview, after which she had been advised not to contact him, she had encountered the appellant in the town of March in Cambridgeshire in or about July 2009.  She agreed that it had been an amicable meeting, that they had gone for a cup of coffee, they had met again on the following day when she had helped him jump start his car and that they exchanged telephone numbers.  She accepted that she had also lent him £10. 

The appellant, William Mawhinney

(1)        The appellant was originally interviewed as a potential witness. He made a statement to the police on the date of the deceased’s death, 28 May 1995, purporting to give an account of his movements on the Saturday and Sunday.  In that statement he claimed that on Saturday 27 May 1995 he and his two daughters had gone with his brother, Raymond, to spend the day and night at a caravan at Portrush.  He accepted in cross examination that account was lies and explained that he had made it up because, at that time, the children were subject to a Fit Person Order which did not permit them to be left in the unsupervised care of the deceased.  He agreed that he had left them in her care on the Saturday while he had gone fishing.  The appellant was subsequently interviewed by the police under caution in 1995 when he explained that his statement about going to Portrush had been a lie.  During the course of that interview he said that when he returned home from fishing he found the deceased lying on the kitchen floor and noticed that she had wet herself.  He told the police that the grabbed her by the wrists and trailed her across the living room and up the stairs.  It seems that was something that he done on a few previous occasions.  He told the police that on the Sunday morning he had presumed that the deceased was in the front room sleeping and he had gone down to make breakfast for the children.  He said that the deceased had reappeared and there had been an angry exchange in the course of which he had seized her by the throat pinning her against the wall.  He then left the house with the children in order to assist his brother.  He said that he returned to the house sometime around 9.00 and found that the deceased had drowned in the bath. 

(2)        The appellant was interviewed again in 2009 subsequent to the report from Gwen Mawhinney when he gave a further account containing a number of matters that were totally inconsistent with the account that he had given to the police in interview in 1995.  The appellant made the case that he had continually asked the police to be shown his 1995 interviews which represented an accurate account but that his requests to refer to that record were denied for a significant period.

The grounds of appeal

(a)        That the learned trial judge was wrong in law to admit the evidence of the interviews of the appellant conducted by the police at Antrim between Monday 20 July and Thursday 23 July 2009 and the alleged confession to Gwen Mawhinney. 

(b)        That the learned trial judge was wrong in law to refuse the application on behalf of the appellant that there was no case to answer at the conclusion of the case for the prosecution. 

(c)        That, having regard to all the circumstances, this court should have a “lurking doubt” or “a reasoned and substantial unease” about the conviction of the appellant and should, therefore, come to the conclusion that his conviction was unsafe. 

The admission of the accused 2009 interviews

“Normally proceedings are fair if a jury hears all the relevant evidence which either side wishes to place before it, but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet, or where there has been an abuse of the process, e.g. because evidence has been obtained in deliberate breach of procedures laid down in an official code of practice.”

The learned trial judge did not consider that the appellant would be unable to challenge any conclusion that the prosecution sought to urge as a result of any alleged discrepancy between the 1995 and 2009 accounts.  During the course of the 2009 interviews he had made it perfectly clear that, owing to the period of time that had elapsed, he wished to refresh his memory from the contents of the 1995 interviews – a facility that had been denied to him by the police.  The learned trial judge observed that it would be for the jury to determine in due course, the extent to which any alleged discrepancies might be due to the frailty of memory over time or some other explanation.  In the circumstances, he refused the application. 

“In short, my Lord, for the purposes of this application there is prima facie evidence from the ABE (available best evidence) interview that drink was taken at the time of the alleged confession and by the time they went to bed by their own assessment, they were ‘pissed out of their heads’.”

By way of response the prosecution was permitted to call Gwen Mawhinney to deal with the matter.  She did so and was cross examined on behalf of the accused by Mr Lyttle.  The learned trial judge then heard detailed legal and factual submissions from the prosecution and the defence. 

“There is nothing in the evidence or in human experience to suggest that the consumption of a couple of cans would have loosened the tongue of a person with the accused’s age and size and according to the undisputed evidence of Mrs Mawhinney, considerable experience of alcohol consumption.  Further his alleged promise to ‘tell her later’ whether he killed Lorraine was, according to Mrs Mawhinney, made before any alcohol at all had been consumed.  In short, there is no evidence of the consumption of the quantity of alcohol alleged to have been consumed by the accused or the witness before his alleged confession was a circumstance likely to render that alleged confession, if indeed it was made, unreliable.  I have been satisfied of that by the prosecution beyond reasonable doubt.  Accordingly, the objection under Article 74.2(b) to the admission of the alleged confession in evidence is rejected.”

The learned trial judge also rejected a subsidiary objection to the confession evidence made by Mr Lyttle under Article 76 noting that, during the course of the main trial, Mr Lyttle and his junior would be able to attack the reliability and veracity of the evidence of Ms Mawhinney by comparing and contrasting several aspects of her evidence relating to the confession.

The defence application for a direction of no case to answer

“There are undoubtedly a number of worthwhile jury points that if accepted arguably diminish the credibility and/or reliability of elements of the evidence of OK.  There are major inconsistencies between her witness statement as a 6 year old child made just after her mother’s death and her evidence in this trial.  There are also inconsistencies in aspects of the accounts that she has variously given during the intervening years and there are discrepancies between aspects of her evidence in the trial and that given by other witnesses.  Her central evidence, that her father the accused killed Lorraine Mills is supported by Gwen Mawhinney the accused’s wife who has given evidence that the accused admitted his guilt of Lorraine Mills’ killing to her.  In relation to that witness there are also useful jury points including the failure to inform anyone and carry on living with the accused as though nothing had been said for a period of 6 years until following the discovery by her that the accused was in another relationship and while facing eviction from her home she telephoned the police while in an intoxicated condition to make a report.  These are merely examples of some of the jury points that undoubtedly are open to be made by the defence on the prosecution evidence.  But I must remind myself that I am not the jury and save in a very clear situation I must not usurp its function by halting a trial at the close of a prosecution case.  Whether a witness is truthful is nearly always a question for the jury and I do not consider that the nature and quality of the evidence of Gwen Mawhinney taken as a whole is such that any reasonable tribunal would be forced to the conclusion that the witness was untruthful.  Nor do I consider that her evidence of the alleged confession was unconvincing to such a point that a jury properly directed and weighing all the surrounding circumstances could not properly convict upon it.  Similarly in the evidence of KK.  The jury will plainly have to decide whether the contradictions between her 1995 statement and her evidence at the trial are or are not explicable and whether taken with the other evidence in the case for both prosecution and defence, and both confirmatory and discrepant, the case has been proved to the requisite standard.  In my estimation the sum of the prosecution evidence in this case plainly does not fail the second limb test of Galbraith and on the contrary constitutes a quintessential case to be decided by a jury.  I accordingly reject the application.”

“15.     There are occasions when a witness retracts a previous assertion and the result is that it is simply impossible to say which is true.  Sometimes there are cases where it is clear that the retraction is likely to be correct and the original assertion probably untrue.  There are other cases when the manner in which evidence is given by a reluctant witness only serves to confirm the truth of the previous assertion.  If a jury might reasonably take that is what is happening then the decision of whether that has occurred is for the jury and not for the judge.”

Was the conviction of appellant unsafe?

“But obviously if you were to conclude that she is mistaken and that what really happened is contained in what she told the police in 1995, then whether genuinely mistaken or deliberately lying does not matter.  Obviously you could not rely on her evidence to you, on the other hand if you conclude that had this 6 ½ year old child gave the police in 1995, this detailed account because she was afraid of her father, and it was not true, then the position would be different.”

“At the end of the day, members of the jury, you’re going to have to make your own assessment of the evidence of these three witnesses and decide who you believe about what.”

We do not consider that the learned trial judge could be faulted for adopting such an approach. In accordance with the decision in Pollock we have anxiously and carefully scrutinised and analysed the evidence but, having done so, we have not been persuaded that this conviction is unsafe.