REGINA
-V-
SUSAN HILDA MAY
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SKELETON ARGUMENT
ON BEHALF OF THE APPELLANT |
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(Prepared for 30 November 2001)
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| 1.1 | PRELIMINARY AND CONTEXTUAL MATTERS | |
| 1.2 | The Appellant relies upon the closely reasoned and documented submissions contained within the Statement of Reasons submitted by the Criminal Cases Review Commission. | |
| 1.3 | Susan May was convicted of the violent murder of her elderly aunt for whom she was the principal carer and had been for some years. She also cared for her elderly mother and the care of the two ladies was her principal concern and occupation. | |
| 1.4 | Over the years she had been given very substantial sums by both mother and aunt. No evidence was adduced that she felt herself under financial pressure at the time of Hilda Marchbanks' death or that she had spoken of looking forward to inheriting the half share of Mrs Marchbanks' assets which she was due to receive under the terms of her Will. It may be significant that the Appellant had a number of alternative sources of money to pursue before contemplating the violent killing of a woman to whom she had been close for the whole of her life. In particular Mrs Marchbanks had jewellery valued at £5.000.00; shares valued at £11,000.00 and a house. Mrs May had Power of Attorney over her aunt's affairs. It would have been open to her to dispose of the jewellery; sell- the shares or mortgage the house. | |
| 1.5 | The Appellant was in the habit of visiting her aunt several times each day and supplying and preparing food for her. Other than Mrs Marchbanks herself she would be present at the house in Tandle Hill Road, Royton, far more often than anyone else. It follows that apart from Mrs Marchbanks no-one was as likely as the Appellant to have left fingermarks at the house in the normal course of events. | |
| 1.6 | Clearly a family member may be the person responsible in many cases of homicide and the Police must consider that possibility at the outset. The precise movements and activities of the Appellant were a matter of necessary and legitimate investigation but the possibility that Mrs Marchbanks had been killed by burglars who may not have expected to find anyone sleeping downstairs was self-evident. The need for the meticulous gathering and evaluation of evidence was apparent. | |
| 1.7 |
Before turning to consider the investigations of the C.C.R.C. and the
present Grounds of Appeal it may be useful to consider the basis upon
which the Prosecution case was eventually presented to the Jury at trial.
Five points are conveniently summarised at pages 1-3 of the Judgment
at the first Appeal on the lst February 1997 To that list should be added the dominating evidence as to the spending of money from both mother and aunt. |
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| 1.8 | The Court of Appeal regarded motive, opportunity and alleged lies as of small significance. They regarded handprints and the remark to D.S. Rimmer as the important aspects of the Prosecution case. As the Judgment made clear the whole focus of the first Appeal was directed to the possibility that contrary to the account she gave in interview and effectively at trial the Appellant may well have touched the body of her aunt on the morning of 12th March 1992 and thereafter transferred fingermarks in blood to those points on the wall which runs alongside the bed and towards the kitchen. A number of expert witnesses were called by the Appellant. Particular aspects of the matter raised at that Appeal included the possibility that the Appellant had forgotten touching the body and the forensic possibilities of blood being transferred to the walls at 9.00 a.m. on the 12th March. | |
| 1.9 | The present Appeal is based primarily upon the rigorous researches of the C.C.R.C. It does not depend upon fresh expert evidence of opinion but upon close scrutiny of material which was either not known to the Defence or of which the Defence did not then appreciate the significance for good reason. | |
| 2.1 | FORENSIC EVIDENCE/BLOOD MARKS ON THE WALL | |
| 2.2 | The three marks on the wall adjacent to the bed of Hilda Marchbanks were at trial, and remain on Appeal, at the centre of the case. At the time of trial the state of the evidence was that only the mark near the light switch M.SNI4 was proved to be in human blood. According to Michael Davie, Forensic Scientist, the first and second mark JH l and J-H2 had reacted positively to a presumptive test for blood. In the opinion of Javaid Hussain who applied chemicals to enhance the marks for the purpose of fingerprint examination the marks were in blood but it could not be said whether the blood was human or animal. Mark JHI was found to bear the finger and palm print of the Appellant's right hand; mark JH2 bore a left hand print which could not be attributed: mark MSN14 was a thin smear showing no signs of any print. | |
| 2.3 | It was the very heart of the Prosecution case that the Appellant had attacked her aunt and that in the course of smothering her a struggle had developed in the course of which Mrs Marchbanks' face was scratched. It was contended that those scratches would have produced sufficient blood to produce first a set of right hand finger and palm prints, then a left hand print and finally a smear near the light switch. The suggestion was that after committing murder the Appellant found it necessary to support herself and feel her way along a wall in a small house with which she was intimately familiar. | |
| 2.4 | In support of the proposition that all three marks were deposited at the time of the murder the Prosecution relied upon the evidence of Mavis Brady, the cleaner (See Grounds of Appeal 1.9). Her evidence was unfortunately inaccurately recited to the Jury in the course of the Summing-Up. The Appellant refers to the full transcript of the evidence of Mavis Brady at 4 in the Respondent's bundle. It is the case for the Appellant that the level of cleaning achieved by Mrs Brady was modest at best. | |
| 2.5 | When the Trial Judge came to sum up the matter he invited the Jury to ask themselves "whether as a matter of sensible inference....... it must follow that all the marks were put there at the same time" and on the basis of the evidence of Mr Hussain were "as a matter of overwhelming probability in human blood". (S-U 38D) | |
| 2.6 | 2.4 Initially on Appeal the point was pursued
on behalf of the Appellant that the first two marks could well have been
deposited at a different time from the third mark and that all three marks
could well have been of the Appellant's "As I listened to all the talk about animal blood I did wonder how one could -imagine handprints with animal blood on them could have got on the wall...... Perhaps that is an inappropriate comment to make or an irrelevant one". It has now been discovered that included in the unused material is a "Craftsman Paper Bag". This was a paper bag found in the kitchen bin containing meat scraps and tea bags which gave a positive reactive test for blood. It was found by Mr Hussain on 24th March. Although it was sent to the laboratory with an instruction form to "establish whether marks on the outside of the bag are blood and what are contents of the bag". No such tests were carried out (see S of R 9.76). It seems clear that the answer to the question posed by the Judge may lie in the preparation of food in the kitchen by the Appellant. This could readily lead to finger impressions of the Appellant in animal blood being left on the wall between the kitchen and lounge. It would appear that the possibility that animal blood emanated from the preparation of food was never contemplated in the course of the trial. It should also be noted that the presence of a bovine blood stain was established on a dress belonging to the Appellant but never mentioned at trial. |
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| 2.9 | Given the extent of the blood prints found at JH I and JH2 it is submitted that they are much more likely to arise from the preparation of a meat dish and very hard to explain on the basis of blood arising at the point of homicide which would hardly be expected to be in any volume and then only upon one or more fingertips. While the amount of blood needed to produce all three marks was said on Appeal to be 2ml or a salt spoonful (see Judgment: 1 0) the point to be made is the extent or width of the marks at JHI and JH2. It is submitted that scratches, such as may be discovered, on the photographs of the deceased, would not produce blood upon fingers as may be seen in Photograph | |
| 2.10 | It is submitted that had the Jury been aware of the mark MJD28 above the radiator and of the nature of the "Craftsman Paper Bag" they would not have heard comments about animal blood and the overwhelming probability that all three marks were in human blood which must inevitably have affected their deliberations to the detriment of the Appellant. | |
| 2.11 | The provenance of the smear close to the light switch MSN14 remains problematic. The matter is reviewed in close detail in the Statement of Reasons at 9.4 onwards. It is not possible at this stage for the Appellant to advance categoric assertions as to how and when that smear was deposited. What can be done is to identify those many aspects of the evidence gathering which may reasonably cast doubt on the evidence given at trial by Detective Superintendent Kerr that the third mark MSNI4 was present on the wall on the morning of 12th March. | |
| 2.12 | The failure of Peter Fitton to video any of the three marks is noted at Statement of Reasons 9.15 and at 9.17 his present reaction cited. Moreover the still photographer, Mr Naylor, did not photograph the mark MSNI4 on the 12th March. Given the critical importance of the marks individually and collectively it is submitted that the court may properly be concerned at the absence of any comprehensive photographic record of the evidence at the critical time. | |
| 2.13 | While it remains unclear to the Appellant
what injury was the cause of the extensive bloodstain on the pillow by
the left side of the head of the deceased to be seen on photographs 6
and 7, it is now accepted by the Respondent that when the body was examined
or moved a small amount of wet blood contaminated the pillow alongside
her head. The possibility exists that by chance the mark MSN14 was deposited
at about the time the body was examined or recovered. According to Detective Superintendent Kerr he touched the injured cheek of the deceased and the pillow on arrival at the house in spite of the fact that he had been called to a suspicious death and arrived after ambulance personnel had been in the room. Although in his very short witness statement Detective Superintendent Kerr speaks of opening the curtain directly after touching the cheeks of the deceased and then examining the wall he speaks of seeing "what appears to be bloodstained marks on the wall" and gives no description or indication as to how many and where located. In his evidence at trial he was questioned on the point and spoke of seeing three separate areas of what appeared to be blood by reference to photographs put to him. He did say that they were not as clearly visible as the photographs indicated. |
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| 2.14 | Mr Davie in his statement dated 8th July 1992 referred to three apparent smears of blood, two of which appeared to be fingerprints. The matter is reviewed at Statement of Reasons 9.40. Mr Davie has told the Commission that initially he did not concern himself with bloodstaining. He has now agreed that he was wrong when in his first statement he stated that he had noted three small fresh bloodstains on the pillow which had been deposited on the main dried area of bloodstaining at about 13.30. He now agrees that he may have been mistaken and that this blood was may have been produced at the tiime the body was removed later in the afternoon. He was assisted in his work at 24 Tandle Hill Road by Joanne Ashworth who made notes which did include reference to "3 areas of possible fingerlhandprints in blood. KM + VE. Not heavy staining. Left for F.P. people". The words KM + VE were added to the plan prior to the first Appeal. | |
| 2.15 | It is submitted on behalf of the Appellant
that the accuracy of Detective Superintendent Kerr, Mr Davie and Joanne Ashworth is in issue. There is a lack of underlying precision in their evidence as to the presence of all three marks JH1, JH2 and MSN14 at the time of their arrival on the morning of 12th March 1992. |
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| 2.16 | As to the marks JH1 and JH2 the records concerning Mr Davie's treatment of these marks is analysed at Statement of Reasons 9.55. Certain apparent deficiencies in treatment, description and recording of those marks which were physically removed from the wall by D. S. Hooley on 29th April 1992 are there reviewed. The significance may be and the position is that at the stage of the first Appeal JH I gave a negative reaction to the presumptive test for the presence of blood (whether human or animal). | |
| 2.17 |
It is submitted on behalf of the Appellant that the summary conclusions of theCommission set out at Statement of Reasons 9.74 are valid and substantially undermine the safety of the conviction in this case. |
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| 3.2 | STATUTORY PROTECTION/INTERVIEWS | |
| 3.3 | From the outset Detective Superintendent Kerr was anxious to discover the origin of the finger marks on the wall. Even if they proved to have been deposited by the Appellant and in the blood of her aunt that would not advance a case of murder if she were to say that she touched her aunt (as Kerr himself had done) on discovering the body on the morning of 12th March. | |
| 3.4 | It is submitted on behalf of the Appellant that she fell under strong suspicion from the start and was not afforded statutory protection under the Police & Criminal Evidence Act. If she had declined to speak to the Police or alleged that she touched her aunt on the morning of 12th March 1992 there would have been no case against her. | |
| 3.5 | In his witness statement (13th May 1992)
Detective Superintendent Kerr explains: "I have been in the Police service for 25 years and have attended many scenes of burglaries. In the case of 24 Tandle Hill Road, the displacement of items in the house, the lack of evidence of any point Of entry and the fact that certain items which I would normally expect to be stolen had been left I was not wholly convinced that a burglary had occurred." While such an opinion may be regarded as simplistic and not envisaging the possible reaction of an intruder, or intruders, who did not expect to find someone sleeping downstairs it shows clearly that the Appellant must have been a serious suspect from the start of the investigation. |
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| 3.6 | An indication of that approach may be seen in the statement of D.S. Rimmer dated 15th May 1992. There she describes questioning the Appellant about her relationship with Christopher Ross which she then insisted was only platonic. That explanation was put to the Jury as an important corroborative lie at trial but the very questioning on the matter shows that the Police were not then, on 14th March, merely checking background information from the Appellant but actively seeking to find evidence which might incriminate her. | |
| 3.7 | The matter is reviewed by the Commission
at Statement of Reasons 9.109. It is significant that in the notes taken
by D.S. Rimmer which were subsequently used to compile the three written
statements of the Appellant only one point is written in capital letters. DID NOT TOUCH HER OR HER FACE That was reported to the incident room in a report dated 13th March 1992 and must have been clearly appreciated by the Senior Investigating Officer, Detective Superintendent Kerr, from that date. The conversation which gave rise to that entry in the report cannot be recreated but from that point onwards the Appellant was committed to that account. |
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| 3.8 | It is also to be noted that the Policy Log
for 13th March 1992 records the first necessary line of enquiry. T o enquire into the family background of the deceased re possible motives for a domestic murder." That approach was confirmed and underlined on the following day when it is stated that the question of family or persons known to the deceased will be fully explored before turning to the second option" (namely a burglary "gone wrong) On the 15th March, the focus was on the Appellant specifically "Commence sequence of events for Susan May. This to be compiled from completed Action only". It is abundantly clear that the Appellant was a suspect in every reasonable
sense of the word from the outset. Unfortunately no formal statement
was taken from her until the 19th March. In the statement prepared on
that date and on the following day 20th March only background issues
are dealt with. There was no good reason for such a delay in taking
a statement from the Appellant. |
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| 3.9 | It appears that by Friday 20th March, Detective
Superintendent Kerr had been informed that the print on JH l had been
identified as that of the Appellant.
Nevertheless a third statement was taken from her in which she said
"I did not |
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| 3.10 | It is submitted that the third statement on the 23rd March was taken solely to ensure that the Appellant committed herself to an account in which she did not touch the body of her aunt and that both that statement and subsequent interviews under caution could and should have been excluded or edited under Section 78 of PACE. See R v Neil (-]994) CLR 441. | |
| 3.11 | It is to be noted that under Paragraph 1 1.2A of the 1995 version of Code C of PACE significant statements defined as those capable of being used in evidence against a suspect are to be put to the suspect after caution at the outset of an interview. Had that step been taken the Appellant's Solicitor would have been better equipped to advise the Appellant whether to answer questions. | |
| 4.11 | STATUTORY PROTECTION/SCRATCHES | |
| 4.2 | See Paragraph 2.2 of the Grounds of Appeal
and Statement of Reasons 9.83 to 9.97. The remark alleged made by the Appellant to D.S. Rimmer and confirmed by D.C. Ogden on 18th March 1997 was a critical element of the case against her and was so regarded by the Court of Appeal. It was alleged by the two Officers that the Appellant remarked after supplying fingerprints .... "Do you know the scratches on my aunt's face, can they get stuff from down your fingernails at forensics." According to D.S. Rimmer she immediately afterwards reported the remark to Detective Superintendent Kerr who instructed her to make a note in her pocket book although the matter was not entered on the Holmes database. The allegation made against the Appellant was that while it was apparent that there was blood on the face of the deceased it would not have been possible for her to see scratches and that no indication that there were any scratches on the face of the deceased had been disseminated by the Police. |
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| 4.3 | In evidence and trial D.S. Rimmer claimed to have been "astounded" when the remark was made. It is significant that the first of the three witness statements was prepared the following day, but the alleged remark was not put to the Appellant until she was interviewed under caution much later when she firmly denied making the remark and asked if it had been written down. | |
| 4.4 | Examination of the notebook of D.C. Ogden undertaken by the Commission has now revealed an entry for 16th March 1992......... To 42 Dogord Road, Royton to speak to Anne Mellor and Susan May informed re cause of death, bruising on head hand over mouth". Plainly this had been an explanation given to the Appellant at that time. It is not possible now to establish what detail was given. In any event in the absence of any suggested weapon the possibility of scratch marks is self-evident. In fact the extent of the suggested scratch marks said to be present is slight as the photographs indicate. | |
| 4.5 | At trial the Appellant said that during
one of her informal conversations with D.S. Rimmer prior to the 18ih March
she had enquired whether it would be possible to obtain forensic evidence
from beneath her aunt's fingernails. The Defence case had to be that D.S.
Rimmer had fabricated or misreported the account she gave of events on
the 18th March. The matter is reviewed by the Trial Judge at page 41A
to 48F of the Summing-Up and no complaint is made about the treatment
of the matter. However, its importance may be seen from its proportion
of the Summing-Up as a whole, namely 8 out of 55 pages of transcript. The effect of the evidence as against the Appellant was not simply to raise a grave point of evidence against her but to double its potential force in that her denial was then advanced as a lie corroborative of guilt. |
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| 4.6 | It is interesting that the reaction of the
Appellant when the matter was finally put to her in interview, namely
to deny and ask where the matter was recorded should anticipate a clear
breach of Paragraph 1 1. 13 of Code C of PACE , which requires that ...... .. a written record shall be made of any comment by a suspected person, including unsolicited comments, which are outside the context of an interview but which might relevant to the offence. Any such record must be timed and signed by the maker. When practicable the person shall be given the opportunity to read that record and to sign it as correct or to indicate the respect in which he considers it inaccurate. Any refusal to sign should be recorded." |
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| 4.7 | Although not formally annotated as a suspect until 23rd March the Policy Log establishes that the Appellant was under suspicion from the outset. Given that D.S. Rimmer declares that she was astounded by the remark then the Appellant was a clear suspect from that moment and should have been so treated. Not only should she have been invited to see and agree the alleged note and to record her reaction but any further conversation with her by the Police should have been in the form of an interview under caution. | |
| 4.8 | It is submitted that the alleged breach of Paragraph 11. 13 should have led to the exclusion of the evidence which would have substantially weakened the Prosecution case (in the light of the analysis of relevant evidence by the Court of Appeal). | |
| 5.2 | MOTIVE | |
| 5.3 | Extensive evidence was admitted at trial in relation to financial matters as the suggested motive for homicide. It was contended by the Prosecution that having improperly abused the trust of her aunt, mother, sister and children in dissipating their cash resources she had a clear motive to kill her aunt in order to secure her half share in her aunt's house and remaining assets. To that conjecture was linked the assertion that she was anxious to be in a position to continue to lavish gifts upon her younger married lover, Christopher Ross, in order to retain his affection. | |
| 5.4 |
In the absence of any evidence that she actually has such concerns or had ever expressed any anxiety to receive more money from the deceased or anticipate her inheritance, the evidence admitted was speculation rather than motive. Its impact was to gravely damage her character and diminish her credibility as a witness in that: (a) The topic dominated the trial. See Summing-Up at 15D when Mr Justice Hutchinson says ...."It did occur to me that it is the topic which has actually occupied us for more time than any other. That is to say the point about money and motive". No warnings to the Jury as to prejudice against a woman who may have "helped herself to money with rather too free a hand and beyond what she was entitled to" (16D) or pointing out (16G) that "It could be said of almost any of us that we have interests in this or that relative dying if we are a beneficiary under the will....... could repair the unfair damage caused by the detailed investigation into Susan May's finances. On appeal (Judgment page 3) the Court said: "Nor does item 1 (opportunity) carry the prosecution very far. Motive opens the door to proof of murder and so does opportunity. But neither separately nor together do they amount to an important element of proof." (b) Introduction of the evidence enabled Prosecution Counsel to devote some 70% of his questions to financial and related issues which were used not to establish motive but to blacken her character. In transcripts of cross-examination on 29th April 1997 -[3E] "You have had the bulk of your Aunt's money?" -[5C] "Did you ever ask Aunty to sign blank cheques?" -[5E] "Did you ever sign your Aunt's name on cheques?" -[13] Having said in Police interview that she had spilt coffee over
her mother's N & P Reserve Account passbook which was the reason
for cutting out and pasting over one page to another she now said that
it was done to prevent her alcoholic sister learning that she (Susan
May) had received more money not balanced by a similar sum to her. The impact of the detailed scrutiny of her personal and financial background was to destroy her credibility by the time the Jury turned to consider the circumstances of the actual homicide. (c) The admission into evidence of financial schedules unfairly focussed the attention of the Jury to a speculative area which would do much to invite disapproval but little to assist in the determination of the right verdict. (d) In the edited interviews placed before the Jury propositions were advanced which went far beyond motive but pointed to dishonesty in relation to the use of the resources of her aunt, mother, children and sister. -[84] "I want to leave you in no doubt that the evidence points
to you taking money from your aunt and not just a few pounds". |
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| 5.5 | It is submitted that the impact of the speculative evidence as to motive was introduced without proper foundation. It dominated proceedings in the view of the Trial Judge and was of little account in the judgment of the Court of Appeal but was such as to render the conviction of the Appellant unsafe. The extent and degree of the vilification of the Appellant was calculated to drive the Jury to a wholly unjustifiable and unwarranted hostile attitude to the Appellant which was unfortunately not redressed by the calling of character evidence on her behalf. | |
| 6.1 | ALTERNATIVE SUSPECTS | |
| 6.2 | This matter is raised at Paragraph 6.1 of the Grounds of Appeal where a series of enquiries made by the Police is set out. In the ordinary course of events it would be immaterial to the safety of a conviction that prior to the charging and conviction of an appellant other lines of enquiry were pursued by the Police. The distinction in the present case is that as part of the case against the Appellant it was advanced by the Prosecution that the crime scene did not indicate a true burglary but rather a "faked' burglary. | |
| 6.3 | Against that background it would have been appropriate for the Jury to have been made aware of the fact that there had been another similar unsolved murder recently in Mytholmroyd and that on the 29th February 1992 an elderly lady named Alice Chadwick had been attacked in her home not far away. | |
| 6.4 | The sighting of a red car by Paul Oakley has never previously been connected directly or indirectly with the Appellant. | |
| 6.5 | The real significance of the other lines of Police enquiry is that they existed, they were pursued and they were abandoned when the Police decided that the Appellant was the guilty party. It is submitted that insofar as the Prosecution confidently asserted that the 'burglary' was 'faked;' and the Jury were not made aware of any other realistic lines of enquiry, an excessive significance may have attached to the evidence against the Appellant. | |