Park (Deceased) v R.

The ultimate question on an appeal based on non-disclosure or fresh evidence is whether the material causes the Court of Appeal to doubt the safety of the conviction. The possible effect on the trial jury is a useful check in a difficult case, but does not replace the court’s own assessment.

Disclosure failures concerning a prosecution witness or expert will not make a conviction unsafe where the witness’s credibility was already destroyed at trial, the disputed matter was not advanced as part of the prosecution case, or the remaining circumstantial case remains very strong. Fresh expert evidence which corrects one feature of the evidence does not assist if it does not undermine the material factual conclusion relied on at trial.

Gordon Park (Deceased) was convicted in 2005 of murdering his wife, Carol Park, who disappeared in 1976 and whose body was recovered from Coniston Water in 1997. His renewed application for permission to appeal was refused in 2008. After his death, the Criminal Cases Review Commission referred the conviction under section 9 of the Criminal Appeal Act 1995; his son continued the appeal.

The appeal relied on alleged non-disclosure concerning a prison witness’s drug use and an expert’s view of a wooden ice-axe, fresh expert evidence on that axe, and geological evidence which undermined a prosecution expert’s suggested link between a rock and the former matrimonial home. The issue was whether, separately or cumulatively, that material rendered the conviction unsafe.

1. Appeal dismissed. The court had no doubt that the conviction was safe.
2. The governing question in both non-disclosure and fresh-evidence appeals is whether the material causes the court itself to doubt the safety of the conviction. The possible impact on the jury is a means of testing that conclusion in a difficult case, not the ultimate test.
3. The prosecution should have disclosed the 2004 information that Wainwright was coming off heroin. The court also considered de bene esse later information concerning his drug offending. But his credibility and reliability had already been destroyed by the extensive cross-examination, the inherent defects in his accounts, and the warnings in the closing speeches and summing-up. It was highly unlikely that the jury relied on him. The non-disclosure did not affect safety.
4. The prosecution should have disclosed notes of Dr Tapp’s pre-trial opinion about the wooden ice-axe and obtained a further statement from him. However, the prosecution did not contend, and the jury were not likely to infer, that the wooden ice-axe was the murder weapon. Its relevance was the coincidence between Wainwright’s account and the appellant’s ownership of an ice-axe. The pathologists did not exclude the axe as a possible cause of the bony facial injuries.
5. The later odontological evidence showed that the dental damage resulted from decomposition. It did not undermine the material pathological conclusion that the wooden ice-axe could have caused the bony facial injuries. The court formally declined to receive the fresh evidence because it afforded no ground for allowing the appeal.
6. The geological evidence concerning the rock was wrong, but it was only one contested and problematic strand. The evidence excluding other perpetrators and inculpating the appellant remained very strong. Even on the appellant’s most favourable case on the remaining grounds, their cumulative effect did not cause doubt as to the conviction’s safety.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2020] EWCA Crim 589.
• Criminal Cases Review Commission: referred the conviction under section 9 of the Criminal Appeal Act 1995 on 26 October 2018.
• Court of Appeal (Criminal Division): refused the appellant’s renewed application for permission to appeal against conviction in 2008: [2008] EWCA Crim 2963.
• Manchester Crown Court: unanimously convicted the appellant of murder on 28 January 2005 and imposed life imprisonment with a minimum term of 15 years.