NI: NI woman knowingly abandoned appeal against murder conviction
A woman convicted of the murder of two individuals has had her application to nullify the abandonment of her appeal in respect of one of the murders rejected.
The applicant, Mrs Hazel Stewart, was convicted of the murder of her former husband Mr Trevor Buchanan, and the wife of her former partner,Lesley Howell, in March 2011.
The murders, which occurred in 1991, had originally been dubbed suicides. Mr Buchanan and Mrs Howell had been found in a car, with autopsy reports revealing that both had died by carbon monoxide poisoning.
However, many years after the death the husband of Lesley Howell, Mr Colin Howell, confessed to being responsible for both deaths.
He revealed details of the murders and of the sexual relationship which had existed between him and the applicant Mrs Stewart.
He explained that he had killed his wife by carbon monoxide poisoning, before placing her in the car. He had then driven to the applicant’s home, where he killed the applicant’s husband Mr Buchanan and placed him within the car too.
Mr Howell pled guilty to the murders, and acted as a witness at the trial of Mrs Stewart.
He claimed that the applicant had assisted in the murders by giving her husband sleeping tablets, and covering up the murder. He further stated that the applicant understood the plan and was willing to co-operate.
Mrs Stewart did not give evidence in her trial, but evidence was adduced by the Crown of what she told the police during a number of interviews under caution.
The police interviews revealed that over the course of questioning Mrs Stewart radically altered her account, eventually admitting that she knew of the plan to murder her husband and Lesley Howell.
The applicant went on to appeal her conviction in relation to Lesley Howell, but her counsel made clear that no appeal against the conviction for the murder of Trevor Buchanan was made.
However, in 2014 the applicant filed further grounds of appeal in relation to the murder of Trevor Buchanan.
The current proceedings concerned the applicant’s wish to pursue those further grounds, and her assertion that the abandonment of the appeal should be declared a nullity as she had not authorised it.
The applicant had three fresh grounds of appeal which she wished to pursue.
These were firstly that the trial judge had failed to act in accordance with the principles set out in R v Makanjuola 1 WLR 1348, and should have directed the jury to look for supporting evidence of guilt before acting on the evidence of Mr Howell, who was an accomplice in both murders.
Secondly, it was alleged that the trial judge had inaccurately directed the jury as to the applicant’s good character.
Thirdly, she alleged that the trial judge failed to properly direct the applicant in relation to the significance of the lies she had told over the years in relation to the crimes.
Delivering the judgment of the Court of Appeal, Gillen LJ first considered the issue of abandonment.
The Court outlined the rules on abandonment, as being contained within Rule 16 of the Criminal Appeal (NI) Rules 1968, and noted that the counsel for both parties were in agreement on the legal principles of abandonment, as contained within cases such as R v Medway QB 779, R v Grey 2 Cr. App. R. 30, R v Grace NIJB 113,R v Shawn Edward Offield EWCA Crim 1630, R v Lambert EWCA Crim 154, R v Elrayess EWCA Crim 2252, R v Nelson Richards EWCA Crim 3330, R v RL EWCA Crim 1913 andR v Paul James Smith Crim App R 1.
These sources of law clearly identified the rules as being that the abandonment can be nullified if the court is satisfied that the abandonment was not the result of a deliberate and informed decision.
Gillen LJ also noted the relevant case law on when an appeal can be re-opened, such as R v Rafferty, unreported, Nicholson LJ 26 May 1999, R v Walsh NICA 4, R v Walsh NICA 7 and R v Yasain EWCA Crim 277.
It was noted that appeals should only be re-opened in cases where the original appeal can be regarded as a nullity, or where owing to some defect in the procedure the appellant has, on the first appeal being dismissed, suffered an injustice where for example he has not been notified of the hearing of the appeal or counsel has been unable to attend.
In the present case, the Court found that a number of meetings had occurred between the applicant, her solicitor, her husband and two sisters, and her senior counsel.
While the Court was willing to accept that the applicant may never have been expressly told that abandonment constituted dismissal of the appeal, the Court could not accept that she would not have been aware of the course of action,
Indeed, the Court noted that “She heard her counsel state in open court, presumably on instructions, in the extract mentioned above at paragraphs 5 and 6 of this judgment that the appeal was without foundation.”
Given the Courts’ belief that even if the appeal had proceeded, it would have been dismissed, it was found that “even had she been informed that the abandonment constituted dismissal, she would have followed precisely the same path that she did.”
While this decision effectively terminated the issues before the Court, it was considered in the public interest that the Court made clear that even if the abandonment had been nullified, the new grounds of appeal were without foundation.
The Court found that the case of R v Makanjuola; R v Easton 2 Cr App R 469, contains a rule that there may be circumstances in which as a matter of discretion, a judge should urge caution in relation to a particular witness.
The applicant’s counsel contended that a sufficient caution had not been issued in relation to the evidence of Mr Howell.
The Court found that due to the fact that there was supporting evidence to that of Mr Howell’s, and that therefore the need for any warning was diluted, with the Judge correctly exercising his discretion.
On the second ground of appeal, the Court noted that the guidelines as to directions that should be given on good character are contained withinR v Vye; R v Wise; R v Stephenson, 97 Cr. App. R. 134, which has been reviewed recently in R v Hunter and Others EWCA Crim 631.
It was found that “a direction as to the relevance of a good character to the likelihood of a defendant’s having committed the offence charged is to be given where a defendant has a good character whether or not he has testified or made pre-trial answers or statements.”
In the present case, it was noted that both the prosecution and defence counsel had agreed with the Judge when notified of the proposed contents of his charge to the jury on the issue of good character.
Further, it was found that the Judge gave a perfectly adequate charge which acknowledged her lack of previous convictions and highlighted their importance when assessing credibility.
Finally the Court considered the submission that a Lucas Direction had not been correctly made.
A Lucas Direction arises from the case of R v Lucas, QB 720 , and requires judges to made certain directions when the defendant has lied to the police.
Namely, they should inform the jury that the lie is only evidence of guilt if they are satisfied it was made deliberately, that people may lie for other reasons than to cover their guilt, and that lies alone are not enough evidence to convict.
The Court again noted that the defence counsel had been aware of the Judge’s intended direction at the time and had not raised any issue with it.
Furthermore, it was found that the Judge correctly directed the jury on the issue.
Thus, the Court determined that the appeal against Mrs Stewart’s murder of Mr Buchanan was abandoned and therefore dismissed. They found no grounds for declaring the abandonment a nullity, and even if they had done so, the fresh grounds of appeal were without foundation.