Friday 1 May 2020

Gordon Park (deceased) v R - The Lady in the Lake case

Coniston Water
The Court of Appeal (Criminal Division) - Dame Victoria Sharp P, Sweeney and May JJ - has given a detailed and lengthy judgment in the Gordon Park (Lady in the Lake) case - Gordon Park (Deceased) v R [2020] EWCA Crim 589. The case was discussed in this previous post 27 October 2018.

Basic background:

As reported by The Guardian 1 May 2020, Carol Park, a teacher, went missing in Leece, near Barrow-in-Furness, Cumbria, in July 1976, and Park claimed she had gone to live with another man. Amateur divers found her body in Coniston Water in 1997.

Gordon Park was arrested and charged with her murder, and spent two weeks in prison on remand, but the case against him was dropped in 1998 on the grounds there was not enough evidence to prosecute.

Detectives later uncovered fresh forensic and geological evidence said to link him to the crime and he was found guilty at Manchester crown court in 2005. 

The court of appeal dismissed
an appeal against Park's conviction in 2008.

Following his death at HMP Garth in Lancashire, his family continued to campaign for his conviction to be overturned and applied to the CCRC.

The judgment:

The court's judgment contains a detailed history of the case and, at para. 94, sets out the grounds of appeal that were considered by the court:

1.  The prosecution failed to disclose evidence of the use and supply of drugs, capable of undermining the credibility of the prosecution witness Michael Wainwright (MW), who gave evidence that the appellant had confessed details of the murder to him in the prison exercise yard.

2.  The prosecution failed to disclose evidence of Dr Tapp’s expert opinion that undermined the consistent implication that the appellant’s (ice-axe), exhibit 1 at trial, could be the murder weapon.

3.  New expert evidence is available to the effect that the appellant’s ice-axe was not used to cause facial injuries to the deceased.

4.   The expert evidence of geologist Dr Moncrieff presented to the Court of Appeal in 2008, that the expert evidence given at trial to the effect that (the) rock found near the body did not match rocks found near the lake but did match rocks from ‘Bluestones’ (Gordon Park’s home) was unfounded, has importance in the context of the new grounds of Appeal.

One reason why the Criminal Cases Review Commission referred the case related to "new scientific evidence showing that Gordon Park was not a contributor to the DNA preserved within knots of the rope used to bind Carol Park's body. This ground was abandoned because the appellant, after further consideration, concluded that the evidence did not support, even arguably, the proposition that it undermined the safety of the conviction - whether by implicating another or by exculpating the appellant.  Instead, the Ground 3 set out earlier was put forward.

Ground 1 is considered at paras 104 to 118 and at 179 to 191

Ground 2 is considered at paras 119 to 143 and at 192 to 207

Ground 3 is considered at paras 144 to 153 and at 208 to 214

Ground 4 is considered at paras 154 to 158 and at 215 to 223.

Legal argument concerning the approach to new evidence appeals can be seen at paras 159 to 167.

The court concluded that the ultimate question in non-disclosure appeals and fresh evidence appeals is whether the non-disclosure and/or fresh evidence relied on causes the court to doubt the safety of the conviction (para 178).

The court held that grounds 2 and 3 had no merit. 

On ground 1 - the court concluded that, even without the jury knowing about the non-disclosed information about MW coming off heroin in 2004 and his drug offending in 2004/5, it is highly unlikely that they relied on his evidence at all.  Further, even if they did rely on MW's evidence to some extent, Ground 1 viewed in isolation did not cause the court to doubt the safety of the conviction because of the strength of the prosecution case. Note also para 188 where the court noted that the trial judge (McCombe J) had warned the jury of the need for extreme caution in relation to MW’s evidence, and detailed both what he had said and many of the problems with it. And, at para 189, the court said - "Having considered all these matters, and the fact that the prosecution case was always principally based on a mass of circumstantial evidence, we have concluded that MW’s consistency, credibility and reliability were all destroyed at trial (even without the appellant having the material now relied upon) and to such an extent that it is (to say the least) highly unlikely that, in convicting the appellant, the jury relied on MW’s evidence at all."

Nonetheless, the court considered Grounds 1 and 4 in combination. For this purpose the court took the approach most favourable to the appellant - i.e. that the jury that the jury might have relied on MW’s evidence to some extent and that deployment of the material in cross-examination might have undermined his credit even more.

The court's evaluation led to the conclusion that the combination did not cause it to doubt the safety of the conviction.

The appeal was therefore dismissed.

CCRC Reference 26 October 2018

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