No: 00/225/W1
Neutral Citation Number: [2002] EWCA Crim 904
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Tuesday 26th March 2002
B E F O R E :

LORD JUSTICE AULD

MR JUSTICE CURTIS

and

MR JUSTICE NEWMAN

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R E G I N A

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GERARD MARY KAVANAGH

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040   Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR MICHAEL MANSFIELD QC & MR JAMES H GREGORY appeared on behalf of the APPELLANT
MR PETER BIRKETT QC appeared on behalf of the CROWN

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JUDGMENT
1.	LORD JUSTICE AULD: On 28th September 1990 before His Honour Judge Rhys Davies, QC, and a jury in the Crown Court at Manchester, the appellant was convicted of the murder of his wife and sentenced to life imprisonment. On 15th March 1993 the Full Court, presided over by the Lord Chief Justice, refused his renewed application for leave to appeal against conviction.
2.	In brief, the facts were as follows. In the afternoon of 19th September 1989 the appellant alerted his neighbours to what appeared to be the suicide of his wife at their home while he had been collecting one of their children from nursery school. Her dead body was found on the floor in an upstairs bedroom. She had clearly been strangled. The main issue at the trial was whether the appellant had strangled her or she had committed suicide by strangling herself. There was circumstantial evidence and medical evidence supporting the prosecution case, and some evidence, in addition to that of the appellant, of her volatility, depression and possible suicidal tendencies. The medical evidence showed marks on, and internal bruising in, her throat, consistent with manual strangulation. There were also marks of a ligature having been around her neck, which the appellant claimed to have cut away in an attempt to resuscitate her. The uncontradicted evidence at trial of a Home Office pathologist, Dr. William Lawlor, was that her death had been caused by manual strangulation, possibly contributed to by the ligature, and that it was extremely unlikely to have been self-inflicted.
3.	The appellant now appeals against the conviction of murder upon a reference by the Criminal Cases Review Commission on the basis that fresh evidence, if received by the Court, would show that Dr. Lawlor's evidence effectively precluding suicide is open to question. We are grateful for the Commission's Statement of Reasons.
4.	In a little more detail, the facts before the jury as revealed by the evidence were as follows. The appellant and his wife, the deceased, had three young children. On 19th September 1989 at 1.15 p.m. the family took the eldest child, Aaron, for his first day at nursery school. The staff at the school told them to collect Aaron at 3.00 p.m., it being his first day there. After all the other children had left school the appellant arrived to collect Aaron. Shortly after arriving home, he dashed from the house shouting to neighbours in distress and requesting help. He said that his wife had killed herself. A neighbour telephoned the emergency service. The call was logged at 3.39 p.m. Police and ambulance crew who arrived found the deceased on her bed. She was dead and a towelling dressing gown belt was around her neck. There was a note by the bedside which read: “I set you free”.
5.	The prosecution evidence consisted, first, of two teachers at the nursery school to which the family had taken Aaron that day. Mrs. Cull, the teacher at the school, said that, when the family arrived, the deceased appeared to be very relaxed. The 3.00 p.m. pick-up time was explained, but by 3.15 p.m. Aaron was still there. At 3.30 p.m. the bell in the school rang, and as children, infants and junior school, passed by Aaron still had not been collected. She noticed that it was 3.35 p.m. when the appellant appeared at the school. She did not know what time he left with the boy. She relied for her timing on the school clock. She said that the appellant appeared to be normal and she did not notice anything unusual about him when he called to collect Aaron. She certainly saw no blood on his face or hands.
6.	Mrs. Jones, another teacher, gave the same timings and said that by the time the appellant arrived all the other children had gone. It was 3.35 p.m., she said, at the earliest, 3.40 p.m. at the latest. She spoke to the appellant about being late, and he told her, untruly as it later turned out, that he had a slow puncture.
7.	The prosecution case then turned to the evidence of a number of the family's neighbours. The first, a Mr. Williamson, had arrived home that day at about 3.00 p.m. He remembered that within fifteen to twenty minutes after his arrival home his wife went to bed feeling unwell. A few minutes later he heard bangs at his door. It was the appellant, with blood around his mouth, seeking help because his wife “had done something”; such was Mr. Williamson's evidence. He called the emergency services immediately but did not leave the house.
8.	Another neighbour, Mrs. Porter, heard banging on her door after 3.00 p.m. She saw, when she looked out, the appellant turning away at her gate. He said to her “Come and help me. She is all blue”. The appellant, she saw, had blood on his face and hands. She did not go with him, but she made a '999' call. She learned then that Mr. Williamson had already made such a call. It appears that the log of Mr. Williamson's call had been destroyed by the time of trial, but Mrs. Porter's call was logged, and that record remained and it showed that she called at 3.39 p.m., that is to say, only about four minutes after, on the evidence of the two teachers, the appellant had left the nursery home to take Aaron back home.
9.	A cleric, the Reverend Dowell, was visiting parishioners in a neighbouring house when he became aware of some untoward noise outside. He thought it was about three-quarters of an hour after his arrival at the house, which he put at about 3.00 p.m. He went outside and saw the appellant with blood on his mouth. The appellant said to him,”She's committed suicide, Father. Help me”. He accompanied the appellant to the house and upstairs and saw the deceased. His assessment was that the appellant was distraught. He said that he felt for a pulse but was not sure whether there was one. He saw the appellant then attempt to give his wife mouth-to-mouth breathing and press on the deceased's chest to revive her. He continued to be very distressed and kept calling out his wife's name.
10.	Police arrived within a few minutes in response to the telephone calls, a number of officers arriving at 3.44 p.m. One of them, Woman Police Constable Windmere, saw the appellant holding what she thought was a dressing gown cord tied in the middle with a knot. She went upstairs and attempted resuscitation with another officer, unsuccessfully. She noticed when she did so a piece of cord underneath the deceased's chest and another by the bed, where the appellant had been sitting shortly before. She took possession of it.
11.	Another officer, Police Constable Bowman, recalled the position of the body, lying on the floor with its head towards the door. He noticed blood around the deceased's mouth and nose. Downstairs he asked the appellant what had happened. The appellant said “She's killed herself. She's tried it before”. When asked why, the appellant said that he was late to collect the kids and they had had a row. He never thought she would do this. In response to further questions, he said that he had only been gone ten minutes; that when he had come back he had found her in a corner with a cord tied around her neck. He said that he could not get it off - it was too tight - so he got a knife and cut it. He tried to give her the kiss of life. He said that she had been depressed lately. He never thought she would do this, and was calling out, in the presence of the officer, “Why did you do it, why did you do it, Lorraine?” He then showed the officer the knife he had used to cut away the cord from around his wife's neck.
12.	The officers, searching the scene in the bedroom, eventually found three pieces of dressing gown cord which had clearly been cut. There was further questioning of the appellant. He said that he had gone out to collect Aaron from the nursery, and he put the timing at 3.10 p.m. He said that he called out when he got back and there was no response. He went upstairs and he thought his wife had fainted. He turned her over, saw the thing around her neck, so went and got a knife to cut it off. He tried mouth-to-mouth resuscitation, but nothing happened. He then ran outside for help. She must, said the appellant, have committed suicide. Then the officer, who had noticed a note on the table by the bed, saying “I set you free”, asked the appellant if he thought that she had committed suicide because of the note; to which the appellant replied, “What note?”The appellant then said again that they had had a row, a row about him being late to pick Aaron up from the nursery. At that stage the appellant began to cry. Very shortly afterwards he was arrested on suspicion of being involved in the death of his wife.
13.	The police officers carried out and instigated a number of investigations. First, they undertook a number of journeys by bicycle from the house to the school, taking different routes. The shortest timing was two minutes and fifteen seconds, and the longest three minutes and twenty-three seconds. So it was a very short bicycle ride from home to school.
14.	A scenes of crime officer found a hank of hair on the bedroom floor not far from where the deceased had been lying, but it was not examined to ascertain whether it had been torn from the scalp with force.
15.	Then or later the note found on the back of a letter on the table by the bed, which had said “I set you free”, was examined. It bore no fingerprints. The evidence of the handwriting expert was that the writing was limited in amount and, as a result, it was not possible to identify its author to the exclusion of all others. However, he said that it corresponded closely with specimens of the deceased's handwriting and differed significantly from specimens of the appellant's handwriting. He gave as an opinion that, as between the deceased and the appellant, the deceased and not the appellant wrote the note.
16.	The doors were examined. It was found that the back door was unlocked and that there was no sign of forced entry to the premises. The house was not examined for fingerprints.
17.	Dr. Moore, a forensic scientist, examined the deceased's clothing. There was a tear along the right sleeve of her blouse and tears in her skirt. There was nothing to show that tears, which were recent, came from a struggle, as opposed to the way in which she was manhandled during attempts at resuscitation. He reconstructed the three pieces of belt and showed that they had been tied with a 'granny knot'. There was a smear of blood on the belt, and tests showed it came from the deceased rather than the appellant or someone else. The knife the appellant had indicated could have been used to cut the belt when tied around the deceased's neck. There was a towel bearing extensive bloodstains, but there was no evidence about how the blood got there or when. There were no fibres from the towel impacted around the deceased's mouth. There was no examination for scrapings from her nails and there was nothing to compare with the fibres on her clothing.
18.	The appellant was interviewed. He said that when they had taken Aaron to school that day the mood between them was quiet. The television was on. And when he left at 3.10 p.m. he left his wife and the other two children in the living room. He took his bicycle with a baby seat. He remembered being asked at the school by the teacher to be earlier next time. He said that he went straight home and it was then about 3.20 p.m. He walked in the back door, having knocked at the front and received no answer. He was worried. He described finding the deceased and trying to lift her on to her side, but she was heavy. He noticed discoloration to her face and a bath robe tied around her neck. He just noticed it was very tight. He could not get his fingers underneath it and he tried to push them down the side of her neck. He demonstrated how he had tried to resuscitate her. He told the police that his wife had made previous suicide attempts, including with a towelling belt. He said that his sister knew about it. It had been just before his father died shortly before. She also had a temper and banged her head. She had consulted the doctor about it. The appellant did not suggest at that stage that anyone else could be involved in her death. He told the officers that they had argued shortly before he went out to pick up Aaron. They had argued because he was going to be late in doing that. He said that he had been watching television and had got carried away with a programme. He denied having strangled his wife or having had anything to do with her death.
19.	There was a good deal of evidence about the general relationship between the two of them and the background of their family life.
20.	The family's general practitioner, Dr. Shaw, said that he had last seen the deceased on 17th July, that is to say, about two months before. She had been weepy, agitated and feeling depressed. She said that she felt irritable; the children and her husband were getting her down. She said that she was not feeling suicidal. He prescribed medication. He described previous visits by the deceased to his surgery. She had asked on one occasion about seeing a psychiatrist, and arrangements were made, but seemingly she did not attend. Dr. Shaw spoke about visiting her at home on 8th August, where he found her more like her old self, this time cheerful and chatty. He mentioned many other previous consultations over the previous year or so when he had treated her for headaches, depression and possible post-natal depression.
21.	Mrs. Duncan, the appellant's sister, spoke of previous conversations with the appellant about his wife attempting suicide by tablet overdose. She said that she had spoken to the deceased about it, who said that she had been fed up at the time. Mrs. Duncan offered to help her. She said that about three weeks before the deceased's death the appellant had visited her and said that he had found the deceased with a cord around her neck and blue in face. He said that he had undone it and got her together again. Mrs. Duncan spoke of talking to the deceased about this and telling her to see someone about it and warning her that if she was going to do this sort of thing, one day she would slip up. She also spoke about the deceased's proclivity from time to time to lose her temper and kick at doors.
22.	A next-door neighbour, Mrs. Holmes, spoke of previously hearing the deceased shout and scream; she believed her to be volatile. She said that she had never heard any sounds of violence. Both the appellant and the deceased were very good with children. She described the appellant as a very loving husband and father, who did as much for his wife as he could.
23.	Mrs. Hogg, another neighbour, thought the deceased was under strain, tired and down a lot. She appeared to be fed up with the appellant. She also mentioned that the deceased had left home for a short period in July of that year and had attended a woman's refuge for a few days.
24.	Then there was evidence from two sisters from a nearby convent. One, Sister Blake, described the deceased as volatile - in an emotional seesaw. She blew up at small things beyond the level of most people. She was depressed. She, the nun, regarded the incident of a tablet overdose as an insincere attempt at suicide. The other Sister, Sister Star, spoke of visiting the house a number of times. She said that the deceased had not complained about ordinary things any more than most folk. She was aware of the appellant having returned home one day being very distressed because he found his wife all dressed up in her best clothes, which apparently alarmed him or surprised him. She spoke of the appellant's father having died two weeks before the deceased's death, and that this was a matter which clearly had upset, not just the appellant, but also the deceased. She spoke of the deceased having remarked that she was not good enough for the appellant and that he would be better off without her, and that she seemed very down.
25.	There was medical evidence from Dr. Lawlor, the pathologist, giving details of the nature of the injuries he had found on post-mortem and a view as to the cause of death. He described the following: a very faint line around the deceased's neck when he first examined her. Above that line there was evidence of cyanosis, petechial haemorahhages in the eyelids, as well as in neck, facial skin and scalp. These were, he said, classic indications of death from asphyxia. He also found two bruises to the left and right sides of the neck of recent origin. They were consistent with localised pressure damage to the surface and underlying tissue. There were also two tiny scratches below an ear which could have within caused by a fingernail. There was an abrasion in line with the mouth and another below the right eye. These could, he said, have been caused by contact with a rough surface. There was a recent two by three centimetres bruise extending from the inside of the lip towards the outside. The side surface of the lip had a cut or split, which indicated contact with the teeth. In Dr. Lawlor's view, that injury could have been caused by a punch or a slap; the defence suggested it could have been caused by the deceased having become unconscious and falling from her original position. There were scalp hairs impacted into the mouth on the right side towards the back of the mouth. The deceased had long hair, so the hair could have been forced in at the time the injury occurred or have been forced in as a hand was held over her mouth. There were recent bruises on the back of the upper part of the right forearm and bruising to the lower limbs, consistent with firm grasping, prodding or poking by fingertips. There was also a recent graze to the top of the right shoulder.
26.	The doctor then went on to describe injuries which formed an important part of his assessment of the cause of death. He said that the underlying neck tissues revealed twenty-five separate bruises, consistent with firm compression with fingers. They were at varying layers. They were consistent with manual strangulation. He considered that the number indicated gripping on at least three occasions. In order to cause death by asphyxia, pressure had to be applied, he said, for thirty seconds or longer, continuously, by whatsoever cause - manual strangulation or by ligature. He said that what he found could not have been caused by self-inflicted manual strangulation. He did not think a ligature or cord around the neck could have caused such internal bruising. The only other evidence of significance were small bruises within the muscles of the scalp.
27.	Dr Lawlor said that the cause of death was strangulation, that the ligature may have contributed to death, but the predominant feature was manual strangulation. He did not consider the bloody towel found at the scene contributed to his findings or the overall picture. There was no sign of inhalation of any fibres from it. There was no damage to the voice box. That did not exclude manual strangulation because the deceased was under forty and it was elastic. He found an area of engorgement above the line of the ligature. He said that he had not dealt previously with a case of self-strangulation; however it was known that this occurred infrequently. The literature, he said, indicated that it was rare. He said that a granny knot was commonly used by people who sought to strangle themselves by ligature in hanging. He said that it was possible to inflict quite serious damage by finger pressure to one's neck. But, as he put it, it was “more than unlikely” that the deceased could have inflicted the neck injuries herself. He added that damage could take place if a person tried to free an obstruction that he or she had tied around the neck. He concluded that the cause of death was manual strangulation because of the number and severity of bruises in the neck tissue. He said that the chance of self-inflicted manual strangulation was extremely unlikely. He said that he did not think it was a reasonable theory.
28.	So much for the prosecution case in evidence.
29.	The appellant gave evidence, repeating much the same account he had given in interview. This is what he said. He did not know the route to the school very well. When they took Aaron there he was on the bicycle and the deceased pushed the others in a buggy. He thought they took the same route back home. They did not wear watches. He had been watching a television programme and the deceased had come in from the kitchen and told him that he would be late. They argued because he just wanted to carry on watching for a bit. He could not remember what the programme was. The teacher told him not to be late in future. He told her that he had a slow puncture, but that was untrue; he did not have one. He did not know why he said that. He disputed that he was as late as Mrs. Cowell said, namely 3.35 p.m. He said he got to the school at about 3.20 p.m.
30.	When he arrived home with Aaron and there was no reply at the front door, he went round the back and found one of the children in the living room. He looked around the house and then into their bedroom. There he saw the deceased lying on the floor with her feet towards the door. He tried to pick her up and noticed the thing around her neck. He moved her so that her head was towards the door. He could not get the thing off, so ran downstairs to get a knife. He got his fingers inside it and cut it. He gave her mouth-to-mouth resuscitation, and there was a gurgling in her chest, but he could not get anywhere so he ran for help. He spoke to a few people. Then he asked the Reverend Dowell into the house and stayed in the bedroom trying to help the deceased until the police told him to leave. The appellant said that there had been a previous occasion when he had seen the deceased with something around her neck. They had talked about it. She had said she was depressed and fed up and had tried to kill herself. He had released the knots on that occasion and they were not tight. She used to try to hurt herself, banging her head and pulling her hair. He referred to the occasion when he came home one day and found her in her best clothes, he said, with a man in the house. He said that she was a good mother. He did not know if she was anxious about Aaron's first day at nursery school. She had been quiet all day. He said that it took him about five minutes to get to the school. He thought he had been gone ten to fifteen minutes.
31.	That completed the defence evidence.
32.	The timings spoken of by the teachers and the appellant differ. They put his arrival at the school only four minutes before one of the calls to the police alerting them to his wife's death. The relevance of the different timings goes to the issue whether the appellant could have done all the things he said he did on his return home from nursery school: trying to resuscitate his wife, cutting the cord off her neck, running outside and seeking help and so forth, unless he had killed her before he went to the nursery school. There was not time, so the prosecution maintained, for him to have done all those things within what must have been a few minutes after his return from the nursery school before alerting the neighbours. On his account, he had arrived at the nursery school earlier than the school teachers said and there would have been time for him to make all those attempts at resuscitation before seeking the help of neighbours and, through them, the police.
33.	Mr. Michael Mansfield, QC, on behalf of the appellant, has invited the Court to receive, under section 23 of the Criminal Appeal Act 1968, fresh evidence from two distinguished pathologists, Professor Bernard Knight and Professor J Crane on the issue whether the deceased could have strangled herself, and from Professor David Canter, a Professor of Psychology with considerable experience of the study and investigation of suicide and “equivocal” deaths, on the need for caution before concluding that someone has committed suicide.
34.	As to the first of those issues, the pathology of the deceased's death, there is no doubt that she died from strangulation. The two questions are: first, whether the strangulation that caused her death was manual or from the ligature or both; and second, whether she was strangled to death by another or could have done it herself.
35.	As we have said, Dr. Lawlor's evidence was that manual strangulation was the effective or predominant cause of death and that it was extremely unlikely that she could have done it herself. That was, as the Judge said, when beginning to remind the jury of his evidence, “a very important aspect of the case”.
36.	Mr. Mansfield's criticism of Dr. Lawlor's evidence, in the light of the fresh evidence that he invited the Court to receive, was that it focused almost entirely on manual self-strangulation and its impossibility, and not on the true cause of death, strangulation by the ligature and the greater possibility of it being self-administered. He invited the Court to consider de bene esse: first, a report of Dr. J.M. Torry, a Consultant Histopathologist whom the appellant's solicitors had instructed to conduct a second post-mortem, to advise and to attend the trial, but whom they did not call to give evidence; and second, reports prepared by Professor Knight and Crane respectively for the appellant and the Criminal Cases Review Commission. Before turning separately to the evidence that each could give, we should summarise the general effect of what they all say. It is first, and contrary to Dr. Lawlor's evidence to the jury, that, though an attempt at manual strangulation occurred, the final effective cause of death was strangulation by the ligature. And, second, Dr. Torry and Professor Crane reject as a realistic possibility that the deceased could have first attempted manual self-strangulation and then have completed the task with the ligature, and Professor Knight, while maintaining that it was possible, described it as “vanishingly remote”.
37.	We turn first to the potential evidence of Dr. Torry which, as Mr. Mansfield rightly acknowledged, is not “fresh” evidence within section 23(2)(d) 1968. Dr. Torry gave the following conclusion as to the cause of death in a witness statement prepared on 27 October 1989 in advance of the trial:
“... The findings at post-mortem were characteristic of death by strangulation. A ligature had been placed around the neck and knotted twice. The ligature was not available for examination but the clean line dividing normal skin below the ligature mark and the skin with petechial haemorrhages above the ligature mark strongly indicate that the terminal event was strangulation by ligature.” 
38.	In a letter to the appellant's solicitors in February 1990 - still before the trial - he added: first, self-strangulation by ligature, not amounting to hanging, was possible; second, that the visible finger marks on the neck could not have been caused by attempts to free the ligature; third, that it was “highly improbable” that the many bruise in the deep tissues in the neck had been caused by cutting the ligature; and fourth:
“... This woman was manually strangled, probably during a struggle where the hands had to re-applied thereby causing more bruises than are normally found in such cases...
The logical conclusion here is that after an attempt at manual strangulation, causing deep bruising, the process was converted to one of application of a ligature which proved fatal.” 
39.	Given that conclusion, it is not surprising that counsel for the appellant did not call Dr. Torry to give evidence on his behalf at the trial.
40.	However, Dr. Torry, in his letter, added a further comment on which Mr. Mansfield set some store:
“The only alternative explanation with any credibility is that following an attempt at manual strangulation, which did not work, the deceased then applied a ligature to herself with sufficient motive to see the process through - and this is, in the experience of so many of my colleagues, uncommon.” 
41.	Mr. Mansfield submitted that if the jury had had evidence of this possibility, albeit remote, that the deceased could have attempted manual strangulation without success and then applied a ligature, they might have acquitted.
42.	The report of Professor Crane, dated 25th May 1999, is to the same general effect as Dr. Torry's witness statement. He stated his view that death was due to ligature strangulation and concluded:
“... it is my opinion that an attempt was made by a third party to manually strangle this woman and that during the course of the attack she was struck once on the mouth. A ligature was then applied to the neck and knotted and that it was this which was responsible for her death.” 
43.	In a further report to the Commission, dated 19th November 1999, Professor Crane accepted the possibility of a person injuring himself or herself in an abortive attempt at self-strangulation, but added:
“It is, in my experience, extremely unusual for a person to try to manually strangle themselves [sic] and to do so in such a way as to inflict so many bruises. In fact, generally speaking, self-inflicted bruises are extremely uncommon. In this particular case it is my view that the extent and multiplicity of the bruising very strongly militates against these bruises being self-inflicted. The appearances are typical of those seen in manual or attempted manual strangulation effected by a third party. In almost twenty years as a forensic pathologist I have seen some cases of self-strangulation with a ligature but I have never seen bruising of the type seen in the case caused by the person themselves [sic].
... self-strangulation with a ligature is quite possible but I think in this case it is remote and fanciful to suggest that the deceased first tried manually to strangle herself and then when this was unsuccessful has then effected the process using a ligature.” 
44.	Professor Knight, in his report to the appellant's solicitors of 5th February 1996, stated that he too was in no doubt whatsoever that the ligature had been placed around the deceased's neck during life and that it had been the terminal event, that is, the immediate cause of her death. He discounted the practical possibility of manual self-strangulation, but raised the possibility of an unsuccessful attempt at it followed more successfully by self-application of a ligature. He saw, as he put it, “no impediment” to such a possibility; equally, he saw none to the possibility of someone else having followed the same procedure. Professor Knight was shown a copy of Professor Crane's views. And in further reports of 22nd July 1999 and 30th March 2001, he expressed agreement with those views save as to the bruising of the tissues of the neck having necessarily been caused by a third party. He adhered to the possibility of a failed attempt at manual self-strangulation followed by successful self-strangulation by a ligature, but acknowledged that it was “almost vanishingly unlikely” that the deceased herself caused all her deep neck bruises. His last words on the subject were that “the possibility, however remote, seemed a 'legitimate hypothesis'“.
45.	Mr. Mansfield submitted that the outcome of all this new information, if received as fresh evidence by the Court, is that it is theoretically possible for a person to set about committing suicide, first by an unsuccessful attempt at self-strangulation causing the sort of deep bruising of the neck seen in this case, and then to finish the job by self-administration of a ligature. The effect of Dr. Lawlor's evidence at the trial, he submitted, was to deprive the jury of the opportunity to consider that hypothetical possibility.
46.	Mr. Peter Birkett, QC, for the Respondent, described the case as a classic one for a jury, with a great deal of evidence going either way. However, on the pathological evidence, present and potential, he said that Professor Knight's views are not discernibly different from those of Dr. Torry which were available at the trial or from those of Professor Crane. The only variation was a theoretical and fancifully remote possibility that the deceased could have manually caused the bruising by an unsuccessful attempt at self-strangulation and then have followed it by a fatal self-administration of the ligature.
47.	In our view, Mr. Birkett's contention is sound. Whilst Dr. Lawlor may well have given the jury the wrong impression, for reasons he has since given, that the only mechanism of strangulation for them to consider was manual, the widespread deep bruising to the neck required the jury to consider manual self-harm as part of the strangulation process. And it is apparent from further medical information now available that the chances of self-inflicted strangulation by ligature following any such self-inflicted injuries are as or more “extremely unlikely” than those of a self-inflicted manual strangulation as Dr. Lawlor said in his evidence. In our view, this further information from all three experts, even if we were to exercise our discretion to receive what was in substance already available through Dr. Torry's report at the trial, would not afford any ground for allowing the appeal. Accordingly, we are not prepared to receive the information as fresh evidence.
48.	In concluding that the conviction is not unsafe on that first issue, we should also draw attention to the fact that the prosecution case did not depend wholly on the pathological evidence. There was much circumstantial evidence, to which we have referred, supporting the prosecution case. There were also considerable pointers, to which we have also referred, the other way. It was for the jury to resolve the issues raised, in the light of all those matters and the pathological evidence as to neck and other injuries of the deceased. The medical evidence as it stands, and as it would have stood if we had received as fresh evidence the further material on which the appellant sought to rely, would not materially change that position.
49.	The second issue turns on information that Mr. Mansfield invited the Court to receive as fresh evidence in support of his contention that the verdict is unsafe. It is a review of Professor Canter into the circumstances in which people kill themselves. As Mr. Mansfield acknowledged, in opening his submissions on this issue, the attack on the safety of the conviction for want of this evidence at trial cannot stand on its own; if his first ground fails then so, effectively, must this. However, we should deal with the issue shortly.
50.	Professor Canter's review is, as Mr. Mansfield emphasised, neither a psychological autopsy nor a psychological report on the deceased; so it is not, on that account, caught by the judgment of this Court in R. v. Gilfoyle, 20th December 2000 (as yet unreported). Mr. Mansfield characterised it instead as “an expert insight into suicide” and sought to rely on it on the issue strongly debated in argument at the trial as to the likelihood or unlikelihood of the deceased having committed suicide.
51.	On the one hand, the defence had relied on the following pointers to suicide; Dr. Shaw's evidence of the deceased's history of periodic depression and inability to cope; the appellant's mention to his sister of having found her in August or early September of that year with a cord tied around her neck in an apparent attempt at or gesture of suicide; his sister's account of her warning the deceased about such behaviour; the evidence of the two nuns about her volatility and of her depression just after the appellant's father's death at the beginning of September, including a comment that the appellant would be better off without her; evidence of neighbours of her volatility of mood; and the suicide note found in the bedroom.
52.	To counter the suggestion of suicide, the prosecution relied, in addition to other circumstantial evidence pointing to murder, on the following main factors: Dr. Shaw's evidence about the deceased's attitude suggesting that, though she had not been depressed, she had not indicated suicidal tendencies; and the unlikelihood of her killing herself when her eldest child was about to return home from his first afternoon at nursery school.
53.	The Judge, in his summing-up up to the jury, rehearsed the competing arguments on this issue and the evidence and factors relied on by each side, prefacing a brief summary at the end with the following comment and question:
“There is the evidence, Members of the Jury, that related to the background of the two people of whom we have heard. Does that assist you as to your decision as to what in fact took place on that particular day?” 
54.	Mr. Mansfield's complaint is that the issue was canvassed without evidence from anyone with experience of suicides or of how people behave before taking their own lives. It is a subject, he said, outside the experience of the vast majority of laymen and lawyers, and the jury should have been given some expert assistance on the matter. He proffered Professor Canter's review as the sort of assistance that could have been given, one, without pretending to resolve the ultimate issue, that could have assisted the jury in evaluating the various arguments.
55.	Professor Canter's review has been helpfully condensed by Mr. Birkett into the following propositions: people may commit suicide for a variety of reasons; it is difficult, if not impossible, to predict if or when a person might commit suicide; lay opinions on the likelihood of suicide can be very misleading; and even clinicians may find it difficult or impossible to predict whether someone might or might not commit suicide. Professor Canter concluded his review by stating that, for a jury, a decision as to suicide “would be even more difficult without the assistance of professional guidance.” We mean no disrespect to the Professor when we say that the only guidance he can have had in mind is, as George Bernard Shaw might have put it, “You never can tell.”
56.	We acknowledge the considerable advances over the last two or three decades in psychiatric and psychological research and knowledge and in the forensic use of those disciplines. However, we do not consider that Professor Canter's proposed evidence as indicated in his review would have afforded the jury with information likely to have significantly widened their understanding of the difficulties of judging the likelihood or otherwise of suicide. Applying the test of Lawton LJ in R.v. Turner (1974) 60 Cr. App. R. 80, at 83-84, the message, as distinct from the supporting detail, of Professor Canter's review is not scientific information that is likely to be outside the knowledge and understanding of a judge or jury. Or, to paraphrase Farqhuarson LJ in R.v. Strudwick and Merry (1994) 99 Cr. App. R. 326, at 331, there was nothing on this aspect of the case on which the jury required expert assistance. Accordingly, we do not receive Professor Canter's review as fresh evidence under section 23 of the Act. Though detailing research in the field, it does not lead to a conclusion of an expert character that could have assisted the jury in their own assessment of the evidence overall on the issue. It would not, in any event, have afforded any ground for regarding the jury's verdict as unsafe.
57.	We should not leave this issue without venturing a suggestion. When the issue is homicide or suicide and the factual evidence is such that there is scope and need for a jury to consider the likelihood or otherwise of the victim having been suicidal, judges should draw juries' attention to the unpredictability of human nature in such cases. Outwardly happy and contented people may commit suicide without warning. Those who are deeply unhappy or depressed or mercurial in temperament may have more resilience than their behaviour suggests. In the end, all a jury can do is look at the signs each way and keep in mind, along with evidence as a whole and the burden of proof, that, from such signs on their own, “you never can tell'.
58.	For the reasons we have given, we do not consider that the jury's verdict would have been affected by the material sought to be advanced as fresh evidence. We regard the verdict as safe and, accordingly, dismiss the appeal.