Kelly v R

A trial judge is not required to use a particular direction on circumstantial evidence. The necessary directions depend on the case and evidence, provided the jury understand that guilt must be proved beyond reasonable doubt and do not substitute speculation for inference. A specific false-alibi direction is required only where there is a real risk that the jury will treat a false account as proof of guilt. Disclosure of material relevant to a witness’s possible motive should be made. Non-disclosure does not make a conviction unsafe where the omitted material could not realistically affect the jury’s assessment of whether the witness was telling the truth.

The appellant was convicted of murdering Kim Driver following a trial before Coulson J at Bradford Crown Court. He received life imprisonment, with a minimum term specified under section 269(2) of the Criminal Justice Act 2003.

On appeal, he alleged that the summing up lacked necessary directions on circumstantial evidence, alibi and caution before relying on the evidence of Paula Nugent and her relatives. He also contended that the prosecution’s failure to disclose an earlier fraud investigation concerning Ms Nugent made the trial unfair and the conviction unsafe.

1. Appeal dismissed. The summing up was clear, accurate and sufficient to enable the jury to decide the evidence fairly. The later disclosure failure did not render the conviction unsafe.

2. A judge need not give a prescribed direction on circumstantial evidence. The court followed McGreevy v DPP [1973] 1 WLR 276 (HL): the form of a summing up depends on the particular case, so long as essential directions are given. The jury had been directed on the burden and standard of proof, the need to consider all the evidence, and the distinction between proper inference and speculation. This was not principally a circumstantial case. Its central issue was whether the appellant had confessed to Ms Nugent and Mrs Morgan.

3. No further warning was required concerning the neighbour’s sighting of a car. The judge identified the competing arguments about the registration number, timing and cell-site evidence, and left the factual issue to the jury. Nor was a false-alibi direction necessary. The appellant’s assertion that he was with Ms Nugent was inseparable from her evidence that he was alone and confessed on his return. The jury could not rationally convict merely because his account was false.

4. The judge was not required to give a general caution before the jury could act on Ms Nugent’s, Mrs Morgan’s or Siobhan Morgan’s evidence. The summing up adequately identified the alleged motives to lie and the defence case that the women had acted together. The jury’s task was to decide their reliability and, ultimately, whether the evidence against the appellant might be false.

5. The fraud investigation into Ms Nugent should have been disclosed. If adduced as bad-character evidence, it lacked the substantial probative value required by section 100 of the Criminal Justice Act 2003. It could, narrowly, have been relevant to a suggested motive to implicate the appellant falsely. However, Ms Nugent had already been cross-examined on her admitted fear that she might face an allegation of murder. Fear of a fraud charge could add nothing material. The omitted material could not affect the jury’s assessment of truthfulness, so caused neither unfairness nor an unsafe verdict.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction: [2015] EWCA Crim 817.
• Bradford Crown Court Coulson J convicted the appellant of murder on 9 February 2011 and imposed life imprisonment with a minimum term of 14 years.