Richard Whittam QC appeared for the prosecution in the appeal that was referred to the Court of Appeal by the Criminal Cases Review Commission.
The Court of Appeal [The President of the Queen’s Bench Division, Dame Victoria Sharp; Mr Justice Sweeney and Mrs Justice May] dismissed the appeal and confirmed “…the ultimate question for our consideration……is whether the material causes us to doubt the safety of the conviction.”
On 28 January 2005, at the conclusion of a two-month trial in the Manchester Crown Court before McCombe J and a jury, Gordon Park was unanimously convicted of the murder of his wife Carol Park some 28 ½ years previously, in the summer of 1976. He was sentenced to life imprisonment with a minimum term of 15 years.
On 25 January 2010, which was his 66th birthday, Gordon Park committed suicide in HMP Garth.
It was an extraordinary case.
Carol Park went missing from the matrimonial home, a bungalow called ‘Bluestones’ in Leece, near Barrow-in-Furness, on Friday 16 July 1976 or Saturday 17 July 1976. She made no contact with anyone after that time.
Some 21 Years later, on Saturday 10 August 1997 amateur scuba divers noticed what appeared to be a bag resting on silt some 24 – 27 metres down at the bottom of Coniston Water, in the Lake District (around 20 miles from Leece), at a distance of about 200 metres from a beach on the eastern shore near Bailiff Wood. The bag was close to a steep drop into water over 50 metres deep. On Tuesday 13 August 1997, the divers returned, raised the bag and brought it to shore. On realising that it contained human remains, they called the police. The bag contained the body of Carol Park.
Gordon Park was arrested on 24 August 1997 and was charged with murder the following day. On 6 January 1998, following the written opinion of counsel, Mr J.A.Price QC, who concluded that there was no realistic prospect of conviction on the evidence then available, proceedings against the appellant were discontinued.
Nearly six years later, in late 2003, fresh counsel, Mr Alistair Webster QC, reconsidered the matter and advised that there was now sufficient evidence to prosecute.
In the very broadest outline, the prosecution case was that the appellant had murdered Carol Park, had bound and wrapped her body and had thereafter used his local knowledge, boat and boating skills to deposit her in Coniston Water.
The defence case was that the appellant, who was a man of exemplary good character, had not murdered (or ever been violent towards) Carol Park. On Saturday 17 July 1976 he and their three children had gone to Blackpool for the day. Carol Park was due to accompany them but did not do so because she was unwell. When he had returned home, Carol Park was not there. There was no sign of forced entry or disturbance but her wedding and engagement rings, which she always wore, were on the bedside table. Gordon Park asserted that Carol Park must have left him, as she had done previously.
The facts are set out in more detail in the judgement, but the jury were satisfied that, despite the passage of time between the murder of Carol Park and the recovery of her body 21 years later, Gordon Park had murdered his wife.
The appellant had sought to appeal against his conviction in 2008, but the full court refused his renewed application for leave to appeal.
The CCRC Reference is based on what is described as the “cumulative effect” of four separate reasons, summarised in the Reference as follows:
(1) The prosecution failure to disclose evidence of a prosecution witness’s continued use and supply of drugs, capable of undermining the credibility and reliability of his evidence.
(2) The prosecution failure to disclose evidence of Dr Tapp’s contemporaneous opinion regarding the ability of the axe found at the appellant’s house upon his re-arrest in 2004 to have caused the injuries to Carol Park’s face and teeth, which undermined “the constant implication [at trial] that….the climbing-axe could be the murder weapon”.
(3) New DNA evidence derived from samples taken from the inside of knots to the ropes binding the body, indicating the presence of male DNA inconsistent with the appellant.
(4) The renewed importance of the expert evidence of Dr Moncrieff, referred to above, deployed at the application for leave to appeal in 2008.
The CCRC concluded that, in the light of the above, “the balance of the case [had] shifted to such an extent” as to merit a Reference to this court.
By the time the appeal was heard the appellant abandoned the DNA point as having no merit.
As Richard Whittam submitted, there was a compelling circumstantial case against the appellant, and any suggestion that Carol Park had either simply left the matrimonial home or had otherwise disappeared was fanciful.
The case is significant, not just because of its factual notoriety, but because the Court of Appeal again considered the approach to be taken in cases where there had been a failure by the prosecution to disclose material to the defence or fresh evidence.
The core submission for the appellant involved an attack on the central reasoning of the decision of the House of Lords in Stafford v DPP, which the Respondent argued was subsequently upheld by the House of Lords in R v Pendleton, and was followed by the Privy Council in Dial and another v Trinidad and Tobago and in many cases in this Court – including Burridge, Mushtaq Ahmed and Noye.
Richard Whittam submitted that the jury impact test was not the correct ultimate question. Rather, he argued, the ultimate question for the Court was whether the undisclosed material and/or fresh evidence causes the Court to doubt the safety of the conviction [see the judgment §§165-167].
The Court accepted Richard’s submissions and concluded that the law in relation to the Court’s approach to non-disclosure appeals and fresh evidence appeals is the same and is both settled and clear. The ultimate question is not (as argued on behalf of the appellant) the jury impact test – which is simply a way in which the court can test its view as to the safety of the conviction in a difficult case. Rather, the ultimate question is whether the non-disclosure and/or fresh evidence relied on in this appeal causes the Court to doubt the safety of the conviction.
The full judgement is available here.
Media reporting included:
BBC, ‘Lady in the Lake’ murder: Gordon Park’s conviction upheld:
ITV, Court upholds Gordon Park conviction over ‘lady in the lake’ murder:
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