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Thursday,
15th January 1998
Summing-up (continued)
and the jury began their deliberations
(In the absence of the jury)
MR JUSTICE HIDDEN:
I am grateful, Mr Parkins, for the notes that have been handed in
to me which are very helpful. I have just had them a moment or two
and I have gratefully read them.
MR PARKINS:
I am sorry it was not typed up. There was not time.
MR JUSTICE HIDDEN:
Of course not. I realise the position. As to the direction regarding
jury protection, I had in mind a different formula.As to the directions
as to the evidence of Jackie Street I am satisfied that your submissions
are right in relation to the direction as printed by the judicial
stipendiary board can only be a referable to evidence called by
the prosecution although it does not say so.
MR PARKINS:
Indeed.
MR JUSTICE HIDDEN:
By the use of the word "sure". I told you yesterday that
I was thinking of using the words "of the view" and I
see you have used those words in your possible draft. I have come
to the conclusion that "of the view” is lawyers language
and the simple word "think" is probably better. What I
propose to do is to give them the direction as in the suggested
directions of the Board but substituting the word "think"
for "sure". I think that gets across everything that you
have put in your commendable suggested directions.
MR PARKINS:
Thank you, my Lord.
MR JUSTICE HIDDEN:
The one for the jury protection is not in court. It is being typed
at the moment, but basically it follows what I have said to the
jury before and says that the jury must not in any way take the
jury protection as adverse to any defendant. I think it says that
and amplifies it a bit more. Would that suffice for you?
MR PARKINS:
Certainly, yes. I would like to adopt some of the words that your
Lordship used at the beginning, looking back on it saying that there
has been no suggestion, and so on.
MR JUSTICE HIDDEN:
Yes.
MR PARKINS:
Particularly in the light of the unfortunate incident some weeks
ago.
MR JUSTICE HIDDEN:
I had not thought of adding that.
MR PARKINS:
I had not added it because I imagined that it having been dealt
with in the way it was and the reaction of the jury, as it were,
uninvited by them saying that at that early stage, not in any way
holding it against any defendant and perhaps not necessary to rehearse
it once more.
MR JUSTICE HIDDEN:
Yes.
MR PARKINS:
That is why I have not included it in my proposed draft.
MR JUSTICE HIDDEN:
I think you are right not to have included that. I think you are
equally right in the suggestion that perhaps it might be as well
to strengthen it in that way in the light of the tube station incident.I
will read it out so it is on the note and so Mr Munday can hear
it, what you suggested. I do not know I have you have passed it
to Mr Munday.
MR PARKINS:
No. We had a very brief exchange, I mean a pleasant one, in the
Mess this morning.
MR JUSTICE HIDDEN:
That does not surprise me. I will read it so that Mr Munday can
hear it: "These are very serious allegations. When made in
cases such as this it is often considered wise for the jury to have
protection. This is done simply as a precaution. At no stage has
there been any evidence, suggestion or even suspicion that any of
the three defendants has either directly or indirectly sought to
interfere with any of your number."
MR PARKINS:
As short as that.
MR JUSTICE HIDDEN:
Mr Munday.
MR MUNDAY:
I am not going to add to that.
MR JUSTICE HIDDEN:
That is helpful.In relation to the notes put before me for Mr Whomes.
MR PARKINS:
Mr Etherington is here.
MR JUSTICE HIDDEN:
All save the Winnibago are matters that I intend to cover briefly.I
intend to tell the jury that it would not be right and fair to take
the question of the letterbox as a point against Mr Whomes because
there was no question asked of Dennis Whomes. I propose to deal
with the Scarlet Edgar piece of evidence in relation to ferry times
correcting my "G" from "Gordon" to "Gail"
and indicating his evidence that he had asked that Scarlet it was
whom he had received the information from that £15,000 was
the upper limit.Equally, I propose to deal with the 18.59 call and
Whomes’s case that it did not connect. All he got was static.
Therefore for the purpose he may have had in mind to talk about
it in his evidence was not being talked about. Certainly, the call
was not relevant. May I just check my note of what I propose to
say in relation to Mr Whomes. Those are the matters that I have
already written out to deal with.As to the defendant Steele.
MR PARKINS:
My Lord, I again put in note form what I submitted to your Lordship
yesterday afternoon.
MR JUSTICE HIDDEN:
As to the first, mentioning specific telephone calls, I think that
is not really a matter of correction.
MR PARKINS:
Those admissions arose during the course of evidence. They were
suggested as being omissions which the Crown readily agreed to,
but the importance certainly of the first one is obvious because
it is being suggested that it was Mr Steele who had initiated the
contact with Nicholls, certainly on the 5th November. That clearly
is not so if one includes the omitted Nicholls to Steele call at
-- I have forgotten the time.
MR JUSTICE HIDDEN:
20.46.
MR PARKINS:
Yes. That is why we said that goes beyond a mere omission; it points
to a particular issue.
MR MUNDAY:
I do not recall ever suggesting to Mr Steele that on 5th November
he initiated contact. If I am wrong, the record will show but I
do not recall that, neither does Mr McGuiness.
MR JUSTICE HIDDEN:
Thank you.As to 3, Mr Parkins, my note and my recollection of the
way Mr Steele was giving evidence about 23rd August early morning
calls was that it was not just the 4.36 call;it was also one after
2 o'clock in the morning.
MR PARKINS:
That is one I dealt with specifically yesterday, but certainly dealing
with those calls and really the point is not the timing of them.
The fact they were early morning calls and the fact that he was
giving alternative reasons for the calls as opposed to conflicting.
MR JUSTICE HIDDEN:
I see that point. My recollection, I will check it before we have
the jury, was that is the way the evidence did emerge. First gave
the first (inaudible) and then gave the second.
MR PARKINS:
I must check again if there is a dispute between us. Your Lordship
sees the point of the submission.
MR JUSTICE HIDDEN:
Yes.I see the point of 4. 5 seems to me to be rather argument.
MR PARKINS:
Again, I include it because it was part of our submission yesterday,
for the sake of completeness.
MR JUSTICE HIDDEN:
6 seems to state the position fairly. Mr Munday, I think you are
happy with that, are you not?
MR MUNDAY:
My Lord, I cannot recall what 6 is.
MR JUSTICE HIDDEN:
The firearms matter of shortening the shotgun.
MR PARKINS:
I have added to what I said yesterday.
MR MUNDAY:
I have not seen it.
MR JUSTICE HIDDEN:
I will read it but I think it is not material because I only propose
to tell the jury that it was a sawn off pump action shotgun, without
adding the reminder. I will deal with it since it is before me.
It says,
MR MUNDAY:
"The evidence of John Burns did not suggest that a pump action
shotgun cannot be shortened. The effects of his evidence was that
any shortening of the barrel would have involved shortening of the
magazine and the consequent reduction in the number of cartridges
which the magazine could hold."It appears to me that the point
at the moment does not need to be elaborated. At the moment all
I propose to say is that the evidence of Mr Burns, the evidence
of Mr Jasper(sic.) Was that the pump action shotgun was shortened.
MR PARKINS:
Certainly, that was his evidence.
MR JUSTICE HIDDEN:
Sawn off; and leave it like that.In relation to 7, that is the one
that I have some slight doubt about. As I reads, Mr Parkins, you
are saying: "In reminding the jury in relation to the Felixstowe
ferry on the 7th/8th November. PC Long said Steele had given, we
submit that because the evidence is disputed. The jury should also
be reminded of what Steele said to customs officer Bragg in the
interview at Ipswich police station on the 8th November. There is
a difficulty about that: That evidence was not given.
MR MUNDAY:
No.
MR PARKINS:
I am in error.
MR JUSTICE HIDDEN:
I have already reminded the jury of what Steele himself said about
it.
MR PARKINS:
Oh certainly, yes. Mr Steele’s evidence is clear on the point.
MR JUSTICE HIDDEN:
So that I shall --
MR PARKINS:
I wonder if your Lordship would consider adding just a small part
to that. In dealing with what Long said the explanations were, the
fact that there disputed moreover of course --
MR JUSTICE HIDDEN:
I shall be saying that they are disputed.
MR PARKINS:
Thank you, my Lord. As a matter of record, no evidence that any
notebooks containing or any note of that conversation was ever given.
MR MUNDAY:
There is a difficulty with that: This was never raised. The point
that should be taken should have been taken prior to the evidence
being led. Your Lordship can see from the record it we did not lead
it because it was objected to. The stance taken by the defendant
at that stage. Your Lordship knows what happened to Mr Whomes. The
same would have happened, would be our submission, had he not adopted
the stance he did.
MR JUSTICE HIDDEN:
I do not think, Mr Parkins, I can go at this stage into a matter
that was not raised in evidence. I shall direct the jury that it
is disputed.
MR PARKINS:
It is disputed.
MR JUSTICE HIDDEN:
I shall remind them of that.
MR PARKINS:
Yes, thank you, my Lord.
MR JUSTICE HIDDEN:
There is nothing else to raise is there?
MR PARKINS:
Not in terms of jury matters, my Lord, no.
MR JUSTICE HIDDEN:
I am grateful to you all. I will check my own note and make appropriate
alterations.
( The Court adjourned for a short time )
( In the presence of the jury )
MR JUSTICE HIDDEN:
First of all this morning, members of the jury, may I make some
corrections to a few of the things I said yesterday.First, the question
of good character and the direction I gave you in relation to Mr
Corry. There are always in cases these days two limbs to good character.
I gave you the first but forgot to give you the second so I must
remind you of the first and second now so that you have the full
direction on good character.You remember I was telling you that
Mr Corry is to be treated as a man of good character and I told
you that good character by itself cannot provide a defence to a
criminal charge but that it is evidence you should take account
of in his favour in the following ways. I told you about the first
one. I will tell you again. In the first place, the defendant has
given evidence. As with any man of good character, it supports his
credibility. That word really means believability. That is a factor
which you should take into account in deciding whether you can believe
his evidence.I should have gone on and I do now to tell you about
the second limb. What I should have told you yesterday and tell
now you now nearer to when you go out so that is probably a good
thing, in the second place, the fact that he is of good character
may mean that he is less likely than otherwise might be the case
to commit this crime now. So, those are the two ways in which you
take into account good character: First, in relation to his credibility,
and second in relation to the likelihood or otherwise of his committing
the crime now. It is for you to decide what weight, I direct you,
you should give to them, in this case those factors. In doing this,
you are entitled to take into account everything you have heard
about the defendant, including his age, which is 45, his occupation
which you have heard about in relation to dealing with motor vehicles
and being a sprayer, and his unflambouyant lifestyle.That is the
direction in relation to good character.A second alteration I have
to make is in the direction I gave you in relation to a defendant's
lies to the police and customs.I gave you that direction only in
relation to Corry and Whomes. Corry, what he said in the two interviews
he had on the afternoon of 8th November, and Whomes in relation
to what he said on the beach at Felixstowe ferry. The one as to
Corry still stands in relation to what he was saying in his interviews
about the boat trip being for testing the boat and the computer,
but in relation to Whomes I dealt with two pairs of what were said
to be lies told on the beach at Felixstowe ferry in the early hours
of 8th November: One set one pair PC Crick, one set one pair to
Sergeant Long. Those to PC Crick still stand. PC Crick said that
Whomes had said he had been diving with his brother, John Whomes,
and his brother had left 10 minutes ago taking the wet suits with
him in a white Peugeot. Those still stand in relation to the defendant
Whomes, but the other pair of answers I gave you were those in relation
to what Sergeant Long had said in evidence were answers he received
to questions of what they had been doing.The evidence is that they
were said to Sergeant Long not by Whomes but by Steele, therefore,
you should not consider them when looking at the defendant Whomes.
You should consider them in looking at the defendant Steele.Steele
it was, according to the evidence of Sergeant Long, who said, "We
have been fishing," and when the lack of fishing tackle was
pointed out said,"We have been pleasure boating".The direction
I gave you in relation to lies still stands but of course because
only one pair of those answers on the beach was given by Whomes
and the other pair was given by Steele in their evidence the direction
applies to all three defendants.You remember in relation to Corry
there is no contrary evidence as to what he said about testing the
boat and the computer in his afternoon interviews of 8th November,
but the evidence of what was said by Whomes and by Steele is contested
by both of them. You remember that Whomes said he did not make those
remarks to PC Crick; Steele said he did not make those remarks to
Sergeant Long. Steele says that he did not and told you in evidence
that he had not said that to Sergeant Long on the beach, and in
the afternoon he had said to customs officers that all he had said
at the beach was his name and address. That was the only information
he had given, so you have to decide those disputes of fact. You
have to decide, and this was the legal direction I gave you, first,
whether the defendant, in each case Whomes and Steele, whether a
defendant did tell those lies. Were they lies? If you are sure in
either or both cases that they were lies you go on to consider another
matter, but if you are not sure in either case that they were lies
then you ignore the matter. If, however, you conclude in the case
of Whomes or Steele, or both, that they were lies, consider why
a defendant lied. The mere fact that a defendant tells lies is not
in itself evidence of guilt. A defendant may lie for many reasons;
they may possibly be innocent ones in the sense that they do not
denote guilt. For example, there can be lies to bolster a true defence,
to protect someone else or out of panic and confusion. If you think
there is or may be an innocent explanation of those lies then you
should take no notice of them. It is only if you are sure that a
defendant did lie and did not lie for an innocent reason that his
lies can be regarded by you as evidence going to prove guilt in
supporting the prosecution case. I have given you all that direction
before and it is convenient that I have repeated it now. What I
told you before applied only to Corry and Whomes. It does not; it
applies to Corry, Whomes and Steele. The three aspects I have indicated:
Corry's written interview on the after November 8th, Whomes and
Steele for what they are said to have said to PC Crick, in Whomes'
case and Sergeant Long in Steele's case, on the beach at Felixstowe
ferry in the early hours of the morning.The next two corrections
may I take you to where I am afraid my use of initials let me down.
I told you, of course, about the double Hs in connection with the
Halfway House and the Hungry Horse but this is in connection to
N and W which when I write it fast tend to look alike. I told you
in relation to Colin Bridge that he said he had Whomes's home number
and mobile number written down at one time but did not know them.
That was a mistake. I looked down and read my "N" as a
"W". What Bridge actually said was he had "Nicholls's”
home number and mobile number written down at one time but did not
know them. He was not talking about Whomes's number which I said;
it was Nicholls's number he had. Second, again using initials, this
time though the letter is "G". It relates to the evidence
of Mr Whomes as to who got his ferry tickets to Ostend. I read my
"G" as meaning Gordon Stevens. I should have realised
that "G" did not mean Gordon Stevens. It meant Gail, Mr
Whomes's wife. He told you in evidence-in-chief that Gail had got
them and he corrected that in cross- examination to say Scarlet
had them. What he had said earlier about Gail getting them was a
slip. His evidence was that Scarlet got the ferry tickets, Scarlet
not Gail, and his evidence was that Scarlet also had checked up
on what was the maximum amount of money that he could bring back
and told him it was £15,000. So that bit of evidence is nothing
at all to do with Gordon. He had not said Gordon; in-chief he had
said Gail but he did not mean Gail. His final evidence to you on
what he had meant to tell you before was that it was Scarlet who
got the tickets and Scarlet who checked up on the amount he could
bring back. Next, in relation to the evidence of Jackie Street,
I reminded you that as she did not come to court her evidence had
certain limitations, and I drew your attention to them and told
you to consider her evidence in the light of,those limitations.
That direction still stands but I added a final sentence and in
that final sentence I used the words "are sure" when on
mature consideration the right words are not "are sure";
the right words are "think". What I said to you was you
must consider the evidence of Jackie Street in the light of those
limitations. You should only act upon it if, having taken those
matters into account, the limitations, you nevertheless think that
it is reliable. The operative word, members of the jury, is "think".
Put out of your minds concepts about being "sure". You
should only act upon it if, having taken those matters into account,
you nevertheless think that it is reliable. One or two matters now
to refer to very briefly. You remember Whomes's evidence about the
letterbox at Dennis Whomes's which he knocked on, went round the
back and thought he shouted through. He was shown Exhibit 301 and
he agreed in Exhibit 301, the photograph, the letterbox was not
on the door but was on the wall. I reminded you of that yesterday.
I reminded you also of his answer that Dennis could have changed
the door. I think I also ought to have reminded you that the photograph
was produced by the prosecution very late in the case and in particular
it was produced after Dennis Whomes had completed his evidence.
So there is actually no evidence before you of what was the state
of Dennis Whomes's door on 6th December 1995. In the absence of
such evidence, you may think that bearing in mind the burden of
proof is on the prosecution, the fair way to deal with that evidence
is not to assume that the door was in 1995 as it is now and so not
to use that as a point against Mr Whomes. Another matter in relation
to Mr Whomes concerns the 18.59 call when he was using his telephone
at 18.59 on 6th December. His evidence was as to two things. One,
why he was ringing. I reminded you of what he said the purpose of
the call was and I need not do it again. The other as to how long
the phone was used and what happened, what he heard. His evidence
to you was that he did not get through, that call at 18.59. All
he got was static and therefore he discontinued the call. Therefore,
there is no question in his evidence of him saying any things. He
did not actually get to talk to Darren Nicholls and how long it
would have taken for him to explain the things he said he was phoning
for is not material to his evidence. Another thing to remind you
of is the fact that the fuel from the Texaco filling station at
5.01 that night was according to Exhibit 270 and 271 4 Star, and
you remember Mr Steele's evidence that it was put into the Renault
21. I told you about the Rav 4 but I did not tell you about the
High Lux, but you will remember that the High Lux took diesel not
4 Star and it was the High Lux which, on the prosecution case, was
being used that night, and for instance was at the Halfway House
hotel. A little matter about the Burlington Hotel and the damage
to the fire alarm. You remember the Belgian lady said the damage
to the fire alarm was paid for on a credit card. There was not evidence
that that was so because the credit card statement itself said that
what was paid was 6,750 Belgian Francs and that, you know from the
other exhibits, was the cost of the rooms. So there is no evidence
that a credit card was used to pay for the fire alarm damage of
the hotel. It is not a very important point, members of the jury,
you may think but I thought it better to remind you of it nonetheless.The
evidence of Mr Faber as to what he saw looking in the holdalls,
I referred to orle of the weapons yesterday as a pump action shotgun.
That was his evidence but it was that it was a sawn off pump action
shotgun.
MR PARKINS:
My Lord, sorry to interrupt. It was Mr Jasper not Mr Faber.
MR JUSTICE HIDDEN:
I am grateful. I had "Faber" in my note. It was Mr Jasper,
as everybody remembers, and I apologise for calling him by the wrong
name.We are almost at the end of our trail at this stage, members
of the jury, but there will still be some further directions of
law.In turning to those directions of law it is right that I start
with one of the most important. It is just on the question of jury
protection. You have, I know, become totally used to the concept.
It is a step that is taken in a number of these cases and as I told
you right at the start of this case it must not be used in any way
adverse to any of these defendants. These are very serious allegations
and when made in cases such as this it is often considered wise
for the jury to have protection. This is done simply as a precaution.
At no stage of this trial has there been any evidence, suggestion,
or even suspicion that any of these three defendants has either
directly or indirectly sought to interfere with any of your number.
I know full well that you would not dream of using it for any adverse
purpose for any defendant but I have to remind you of what you already
know that it would be totally wrong to consider that the question
of jury protection should be used in any way against any of the
defendants. I am sure that you would not dream of so, using it in
any event. Normally in a summing-up at this stage there might come
a recapitulation of the arguments advanced for the prosecution and
for the defence, but we have been at this case for four and a half
months, almost to the day, starting on the 1st day of September
and tomorrow will be the middle day of January. Were I now to start
reviewing the contents of each of the very good speeches that were
made by the prosecution and the defence not only would it be an
insult to your intelligence after all this time, but it would also
add days to this already over-long summing-up. You will forgive
me, I know, perhaps with a sense of relief, if I do not embark on
such an exercise but merely give you the nutshell of the different
cases in a paragraph each. When one summarises one is bound to miss
things out and so it is only meant to be the very barest of nutshells.
You have been listening to this case for a very long time. You have
been noting carefully and have shown a complete grasp of the issues
raised in this case, but let me give you the nutshell nonetheless.
The prosecution case as to Count 1 is that there was here an agreement
to smuggle cannabis resin, in particular; that it was an agreement
between each of these three defendants and that there is the clearest
possible evidence of it in their landing at Felixstowe ferry in
the early hours of 8th November and in what each of them said and
did not say to the police and customs that day by way of explanation
for their appearance there. The prosecution say they have proved
five trips across the North Sea, the middle three being the ones
when drugs were bought back on the RIB: The first making the contact
with John Stone and leaving the money which was used for the second;
the last being the trip at that time on the RIB to retrieve the
money that had been paid for what has been known as the duff cannabis.
The three trips when the prosecution say the RIB was used to cross
the North Sea, in two of them the Crown say the RIB had on board
the defendant Steele and the defendant Corry and Mr Whomes was involved
in the receiving of the load and dealing with the boat when it came
in. The other one, the Crown say, on board that trip at that time
were the defendant Steele and Nicholls. They point to the tickets
and to the telephone schedule as evidence of the absences of the
relevant defendants and of their failure to use what they otherwise
were using frequently: Their mobile telephones. As to Count 2, 3
and 4 the prosecution case is that there was a falling out between
Steele and Tate and a threat by Tate on the life of Steele. They
say that Tate, Tucker and Rolfe were lured by Whomes and Steele
to that lane on 6th December and were then killed by shotgun cartridges
fired into the back of their heads. As to Count 5, they say that
after the killings Nicholls at Steele's request got him a fresh
shotgun, fresh because the one that had been used was said to have
been ground up, and took it to him at Meadow Cottage. They say it
was in December or January that Nicholls last touched the gun and
that was in the roof of Meadow Cottage. Thereafter, Nicholls did
not do anything about the gun, and in particular did not tell the
police about it. He said it was no plant. In relation to all the
counts in the indictment the prosecution case is that despite all
the legitimate criticism that can be made of Darren Nicholls, that
criticism is valid but his evidence, they say, from the witness
box was reliable and can be believed.The defence of Whomes and Steele,
in a nutshell, to the allegation of agreement to smuggle cannabis
is there was no such agreement. Steele never took the RIB across
the North Sea on any smuggling trips; the RIB was bought as a diving
vessel and was to be used as such when it had had sea trials. The
trip which ended on 8th November was a trip for sea trials which
was daubed by mechanical failure. It was not a smuggling trip. Their
case is that the account given by Nicholls is a lying one. They
point that all that is to be said against Nicholls is a matter that
you should consider, everything including his previous criminal
activities, both those for which he has convictions and more particularly
for those that he has not, his later and more recent criminal activities
including the criminality with Detective Constable "A".
They point to the taped conversations with Detective Constable "A"
between him and Nicholls. They point to what Nicholls said in the
third interview having been told he had to tell the truth but nonetheless
minimising his involvement by not telling it. They sum up in their
arguments what you heard for days quite rightly because it is necessary
to test matters in the evidence that Nicholls gave in this court.
They urge you to say that you cannot believe Nicholls in the light
of those facts. They refer to the great caution that I advised you
to use in looking at Nicholls's evidence at the beginning of this
summing-up. They say that Nicholls has blended fact and fiction
and been prompted or guided by dishonest police officers, Mr Winston
and Mr Brown in the interviews, and the taking of the statements.
They suggest that the telephone schedules are deliberately dishonest.
They say that there are not innocent errors; the errors are made
deliberately to be misleading. As examples of that they point to
telephone calls that are not there, admissions on the telephone
schedule early on at tab 4 pages 7 and 9, in relation to calls on
the 5th and 6th November: One at 20.46 and one at 16.36. Those are
examples that they put before you of omissions. What they say about
the omissions are that they are deliberate and meant to mislead.
Corry's defence to the early charge he faces, Count 1, the smuggling
one is that there was no such agreement. A trip which ended on November
8th was a trip which took with Steele for him, Steele, to do the
sea trials on the boat and on the computer. His counsel makes the
same criticisms of the evidence of Nicholls and says Nicholls in
telling his tale has sought to protect his friends and in particular
Francis Reid. He alleges that it was Reid who was the one involved
in what Nicholls says happened, not Corry.All of them rely on the
defence of alibi. I remind you as a matter of law as I have done
already, and this will be for the last time, that the word alibi
means someone was elsewhere. I remind you of the direction of law
that the prosecution has to prove the defendant’s guilt so
you are sure of it. He does not have to prove he was elsewhere.
The prosecution must disprove the alibi. Also, I remind you that
coming to the conclusion, if you do, that the alibi is false would
not be the end of it. Even if you conclude the alibi was false that
does not of itself entitle you to convict the defendant. It is a
matter you may take into account but you have to bear in mind that
an alibi is sometimes invented to bolster a genuine defence. As
to the murder charges, counts 2, 3 and 4, the defence of Whomes
and Steele is one of alibi. They say they were not in Work House
Lane at the time the deceased were killed and had nothing to do
with it. They draw attention to the lack of Scientific evidence
as to the time of death. They say the evidence of Rebecca Carter
as to the time she saw the Range Rover, the evidence of Kevin Tarbuck
as to what he saw, mean that the prosecution cannot disprove their
alibi. They point to the evidence of William Jasper and Steven Rogers
as raising the possibility that someone else killed those men at
about midnight. As to Count 5 against Steele, the shotgun, Exhibit
103, he says that Nicholls could not have put the shotgun into the
roof when he claims to have done. Had he done so, it would have
fallen straight down because there were no ceilings there then.
Steele says that the progress of the work was such that it was not
possible to hide the gun where and when Nicholls said he did. The
defence say that there was no ceiling up there; the trellis had
not been taken down. Part of it jutted up into the roof space, so
there could have been no roof there to hide the gun. Those are all
arguments put in a nutshell, members of the jury. You will have
in mind having listened very carefully to the way those and other
arguments were deployed for the prosecution and for the defence.
You really are now coming to the last words. First of all, I have
to give you two pieces of advice, not directions (you do not have
to follow them if you do not want to) and two directions. The advice
may be unnecessary because it relates in the first case to the appointment
of a foreman. You have been together so long that you may already
have appointed a foreman, but if you have not, you may think, it
is entirely a matter for you, that that really ought to be where
you start when you get to your jury room this morning. The word
foreman means a person. It does not have to be a man, it can be
a man or a woman. The reason why it has been found useful in these
courts is that you all know that if two or three are gathered in
a room there will come a time if they are talking about something
they are interested in when someone begins to talk at the same time
as someone else. You can get by on that if it is two or three but
it is not so easy if there are twelve. You will find if you elect
a foreman and channel your discussions through him or her then two
things will follow. One, you will get along quicker, not that speed
is important. It is just a matter that helps discussion because
not everybody is speaking at once. Secondly, the person who has
the lightest voice or the shyest manner will still get the chance
to put their views forward. So you may think elect a foreman first.The
other piece of advice is what to do about questions. Obviously,
you have twelve individual memories and quite often your twelve
individual memories will be able to pool to deal with anything you
are wondering about as to what was said in the evidence or what
was said in a direction of law, but if there are times when your
twelve memories cannot agree and there is a matter you want resolved
about what was said by a witness or what was the direction of law
then you are thoroughly entitled and I would expect that you would,
if that is the situation, ask a question. If you do, get your foreman
to write it down on a piece of paper, give it to the usher and it
will be brought out to me. I will then read it to counsel and we
will discuss what the right answer should be and hopefully agree
on it and I will have you back and answer the question.That is a
direction to you as to what you are to do if you want to ask a question.
Obviously, it is not given to you with the intention that you should
instantly go back to the jury room and weigh me down with buckets
of paper, but it is an indication to you of the way to do it. I
will be quite happy to deal with the any questions you may raise.The
next two directions are directions and they are I hope the last
things I shall be saying to you before you retire.They relate to
the question of unanimous verdicts and in relation to your retirement
and the distinction between this building and the hotel. First of
all, unanimous verdict. You will probably know this from your reading
of the newspapers, but I have to give you the direction nonetheless.
You must reach, if you can, a unanimous verdict. As you may know,
the law allows me in certain circumstances to accept a verdict which
is not the verdict of you all. Those circumstances have not arisen.
It may be that they do not arise but they have not arisen yet so
when you retire I must ask you to reach a verdict on which each
one of you is agreed, all twelve. Should, however, the time come
when I can accept a majority verdict then I will call you back into
court and give you a further direction. Lastly, the question of
your retirement. You know that you are all going to a hotel at the
end of the evening on the assumption that you will still be considering
your verdict at that stage. You have brought together to court your
equipment for this day yesterday and I know not if you have brought
anything extra today. What happens about the hotel? Can you continue
with any discussion once you leave here about the case? The answer
is a flat: No, I am afraid. I am not really afraid because experience
has shown it is batter to keep separate what you do here in the
privacy of your jury room and what you do in the hotel. So there
is to be no discussion by any of you with anybody in the hotel of
anything to do with this case. It is taboo, I am afraid. I have
to tell you that it is the essence of the jury system that you should
reach your verdicts when you are together in your jury room with
the jury bailiff outside to ensure your complete privacy. You must
decide this case on the evidence and arguments that you have heard
in the court. You must not seek any further evidence or information
about the case. Not merely should you not discuss the case with
anyone outside your number, but you should not discuss this case
at all, even among yourselves once you have left court today until
you return to your room tomorrow. You will have the jury bailiffs
there with you at the hotel and they have first to be sworn and
I would ask that be done now.
(The jury bailiffs were sworn)
MR JUSTICE HIDDEN:
Members of the jury, if you would now follow the jury bailiffs to
your room.
(The jury retired to consider their verdict at 11.05 am).
MR MUNDAY:
My Lord, may I raise two matters. The first is the jury will only
have the copies of exhibits that they have in their bundles. I wonder
whether my learned friends would give any thoughts on whether any
portion on any list that they now have should not go to them if
they ask for them. I cannot think of any document that should not
be given to them if they ask for it. If there are any if they would
let me know and see if the request comes. It may be a matter that
may need a direction from your Lordship.
MR JUSTICE HIDDEN:
That sounds sensible planning in advance. I would be grateful if
counsel would consider this morning whether there is anything exhibited
they should not see if they ask for it. I certainly cannot think
of anything.
MR MUNDAY:
My Lord, the second matter is this. Your Lordship yesterday indicated
that the jury would return to their Court Room assuming that they
are away overnight at 9am. May the Bar seek help.
MR JUSTICE HIDDEN:
No. I did not give a time. I think I said 9 or some time such, for
instance I do not even know where that hotel is.
MR MUNDAY:
My Lord, no.
MR JUSTICE HIDDEN:
Therefore, I do not know about travel arrangements, how long it
will take.
MR MUNDAY:
My Lord, the concern of the Bar was whether of course the Bar should
be here.
MR JUSTICE HIDDEN:
I can understand that being a concern of the Bar, of course. I had
not thought of the time they should be here. When I consider the
time I shall consider the travelling arrangements, but I expect
I shall come to the conclusion that it ought to be about half past
nine. Since nothing will have been discussed since they left the
court building it is unlikely that there will be a request at the
beginning of the day. One cannot rule that out because they may
agree towards the end of the day that they want to ask a question
and decide they will do it the next morning. So I will have it investigated
what the travel time is. When I know what the travel time is I will
let the Bar know what time it is, then let the jury know.
MR MUNDAY:
My Lord, I am grateful.
(The court adjourned)
(In the absence of the jury)
(The jury were brought into court)
MR JUSTICE HIDDEN:
Members of the jury, I think that is enough for today and so I have
arranged for you to come into court because you are looked after
at your hotel tonight by four jury bailiffs. Two have already been
sworn. The other two have to be sworn now and that has to be done
in court.
(The jury bailiffs were sworn).
MR JUSTICE HIDDEN:
Members of the jury, that completes today's sitting. As you know,
you are forbidden, I am sure you would not want to, from continuing
with your deliberations. You can start again when you come tomorrow
morning. The timings I think will be that you should be in your
room at about 9.30, at sometime between 9.30 and 9.45 and once you
are in your jury room then you can start your considerations again.
In the meantime, you have just to switch off and have a good quiet
night out, I hope. If you would like to leave now you will be able
to follow the bailiffs.
(In the absence of the jury)
MR JUSTICE HIDDEN:
Mr Munday, Mr Parkins, Mr Etherington, Mr Maidment, when the court
is closed in a minute you will hear the time mentioned of 9.45.
That is the formality because that is the time when the court sits
in theory the jury should be in their room but bearing in mind that
it is unlikely that something will happen at the first minute and
that if something like a note should appear from the thoughts of
the previous night there is no need for counsel to be here until
10 o'clock. What I would propose to do if the jury are not agreed
during tomorrow, and they may well not be as it might be a lengthy
retirement, I have not needless to say attempted to forecast how
long they will be; that would be fruitless but if by the evening
the jury still have not reached a verdict I propose to send them
off at some time like this or it may be a little earlier after a
full day from about 9.30 to about 4 or 4.30. As to the arrangements
for the time after tomorrow, as you understand, the Court will sit
on Saturday if the jury are not agreed tomorrow. The Court will
not sit on Sunday so that Members of the Bar can make their own
family arrangements. For Saturday there will be a cafe in the building
that is open to provide refreshment if we get to Saturday. That
is the timetable as I see it. I hope that helps everybody to make
your own arrangements and I will rise now.
(The Court adjourned until the following day)
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