Case No: 2000/3764/X4
Neutral Citation Number: [2003] EWCA Crim 1373
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT READING 
THE HON. MR. JUSTICE LATHAM
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20 May 2003

Before :

LORD JUSTICE AULD
MR. JUSTICE KEITH
and 
MR. JUSTICE SIMON
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Between :

	GERALD MALONEY	Appellant	

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	REGINA	Respondent	
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Mr D P Fisher QC & Mr D P Armstrong for the Defence
Mr A Redgrave QC & Miss S R Paneth for the Crown

Hearing dates : 14th & 15th April 2003
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Auld: 

1.	This is an appeal by Gerald Maloney, on a reference from the Criminal Cases Review Commission, against his conviction on 25th January 1994 before Latham J and a jury in the Crown Court at Reading of the murder of his wife, Janet Maloney. On the morning of 16th January 1993, Mrs. Maloney was found crushed to death under the appellant’s Jaguar car, which was embedded in the front of the bungalow in which they lived in Bucklebury in Berkshire.  The prosecution’s case was that, at about 10 p.m. the night before, he had deliberately and in a drunken rage driven the car into the driveway of the bungalow over the prone body of his wife, killing her.  The defence case was that the appellant had not known that she was in the driveway and had driven over her accidentally.   The critical issue, as the Judge directed the jury, was whether, when he drove towards and over his wife, he knew that she was on the drive in his path.
2.	The Commission’s reference is to enable the Court to decide whether to receive the evidence of Dr. Richard Lambourn, a forensic scientist specialising in accident investigation, with a view to considering whether there is a real possibility that the appellant drove over her accidentally and, therefore, whether the conviction is unsafe on that account. There has been a previous unsuccessful appeal to the Court against conviction.

The prosecution’s case and evidence
3.	There were two major and complementary pieces of evidence on which the prosecution relied as proof that the appellant’s explanation of an accidental killing was a lie.  The first was the appellant’s description of his wife walking in the roadway just beyond their home as he turned into the driveway, forcing open the five-barred wooden gate with his car and running over her prone body just behind it.  The prosecution maintained that that description was so internally contradictory and inconsistent with eye-witness evidence of what happened just before he drove into the driveway as to render his account of an accidental killing impossible. The second piece of evidence upon which the prosecution relied was in response to the appellant’s story that, as he drove into the driveway, the gate was wholly or almost wholly shut so as to obscure his wife’s body on the ground behind it.  The prosecution maintained that that could not be true, relying on expert evidence that his car could not have pushed the gate open sufficiently to let him drive in.  Before he drove in, the prosecution maintained, he must have left the car to open the gate or his wife must have opened it for him; either way, he could not have been unaware of her presence on the drive before he drove over her. 
4.	The appellant and his wife had lived together since 1977 and had married in 1982.  They were financially secure and, for the most part, had a close and loving marriage.  There was no evidence that the appellant had any general motive to harm his wife.  We say “general” motive because, as we have said, the prosecution’s case was that on the night of her death he drove his car over her in a drunken rage – a rage that resulted from an argument shortly before in a public house. 
5.	There is little or no dispute as to the material facts on 15th January 1993 leading up to and within a short time before the appellant ran over his wife.  Apart from a break in the afternoon, the appellant had been drinking heavily in the public house since lunchtime that day.  His wife accompanied him back there in the early evening and, over the next two or three hours, both of them had a lot to drink. The argument began towards the end of the evening, seemingly because of his dancing with another woman and/or of her dancing with another man.  They continued the argument in the car park outside, and shortly afterwards Mrs. Maloney returned to the bar.  She was clearly angry, took her handbag and left.  She then set off to walk home, a distance of about half a mile.  Shortly afterwards the appellant, notwithstanding the amount he had had to drink, set off behind her in his Jaguar car.
6.	From the evidence of a passing motorist, Mrs. Lever, and on the appellant’s own account, he appears to have caught up with his wife walking on their off-side of the road. This was about 150 yards short of their bungalow, which was also on their offside of the road.  He stopped and got out of the car and tried to speak to her.  They argued again.  He attempted to grab her.  She pulled free and he fell into the ditch at the roadside.  She then continued to walk towards the bungalow.  Eventually, and with some difficulty because of a leg injury, he got back into the car and drove slowly – at hardly more than walking pace - after her. Following slowly behind him was a vehicle` driven by Mr. Harbord-Hammond, with his wife as a passenger.  Mr. and Mrs Harbord-Hammond could see what must have been Mrs. Maloney illuminated in the Jaguar’s headlights as she walked ahead of the Jaguar.  She was readily visible to the Harbord-Hammonds and identifiable to the appellant because of her blonde hair. They all proceeded in that fashion until the appellant, a few cottages short of the bungalow, pulled over towards the offside of the road, seemingly to allow the Harbord-Hammonds to pass him on the nearside.  They did that just before the Jaguar reached the driveway to the bungalow, at which time Mrs. Maloney had passed the driveway and was continuing to walk on up the road.  When they passed her the Jaguar was some ten yards behind her and she was still illuminated by its headlights.  That was the last they saw of the Jaguar and of her.
7.	The appellant, in interview and in evidence, gave the following and similar account to that of the Harbord-Hammonds about this part of the story.  As he approached the bungalow he saw a woman, who he assumed was his wife, walking on up the road past the driveway entrance. He then turned right at some speed into the driveway and crashed into the closed or nearly closed gate.  He did that partly in order to attract her attention to get her to come back and also to avoid having to get out of the car to open it because of pain from his leg injury.  He then crashed into the front wall of the bungalow, unaware of having run over anybody or anything in the driveway. He got out of the car, shouting, “Come back, Janet.  I’ve put my car in the wall, I’ve hurt my leg”.  She did not come and, as she had the only house key, he forced open the front door by banging a gas cylinder against it and went to bed.  Later that night some friends from the public house called and, at his request, looked for Mrs. Maloney, but without success.  He concluded that she must have gone to stay with her sister and went to sleep.
8.	In the morning other friends of the appellant and his wife went to the bungalow.  They saw the Jaguar embedded in its front wall. One of them saw a powder compact and Mrs. Maloney’s credit card on the grass some six to eight feet from the nearside of the vehicle.  Another was greeted by the appellant, who appeared to be upset and angry.  He said, “I’ve found her; I’ve killed her ….”  He indicated his wife’s body under the car and shouted, “She’s not really dead. Get the car off her.  This is a nightmare. What have I done?”  To the first police officer called to the scene he said, “I can’t believe it”.  
9.	A scene of crime officer, who arrived shortly afterwards, found Mrs. Maloney’s body under the middle of the Jaguar with the feet to its front and offside and head to the rear and nearside.  The key to the front door of the bungalow was under her left hand.  Subsequent examination of the scene and of the body indicated that she had been lying on the ground just inside the gateway and with her head toward it when the car ran over her, and that it pushed her along the drive as it continued forward into the front of the bungalow.  The pathologist concluded that she had died of crush injuries to the chest, but noted that there were also bruises to the head that might have been caused by contact with the car’s tyres or by blows putting her to the ground.  The pathologist found no sign on the body, and a forensic scientist found no sign on the front of the Jaguar or on the gate, that either had knocked her down. So, as the Judge directed the jury, on the evidence it was clear that Mrs. Maloney had been on the ground when the car first went over her.  
10.	The scene of crime officer found a torn handbag in the hallway of the bungalow and what appeared to be some of its contents and two odd earrings scattered on t`he grass to the nearside of the Jaguar.  The appellant said, in interview, that he must have taken the handbag inside, having found it on the grass the night before. 
The appellant’s evidence
11.	The appellant gave the account in evidence that we have summarised, of the resumption of the argument with his wife on the road home and driving straight through a closed or nearly closed gate that obscured from his vision her body on the ground inside it.  This is how he described that part of the story in his evidence in cross-examination, as recorded in the unchallenged note of prosecution junior counsel, Miss Sarah Paneth:
“I hit gate to attract her attention.  I assumed she’d walked past – reason was to attract her to come back.  That’s what I thought was Janet.  I don’t know if carrying a handbag.  I don’t know why I ended up inside the bungalow.  When I hit the gate, probably cracking of timber and then the gate dug in.  It moved, I gave it some more gas, next thing I knew it was in the wall of the bungalow.”
He said that he had pushed open the gate before with a Ford Granada car, forcing it from the closed to an open position.  As a possible explanation for his wife being on the ground inside the gate, he mentioned that he and she had reported a former employee to the police for stealing and that that person may have partly opened the gate and attacked her – a suggestion for which there was no evidential support.  He emphasised that his recollection of events on the night in question was affected by the drink he had taken.

The expert evidence at trial
12.	The prosecution called and relied upon the evidence of two expert witnesses, P. C. Shellshear, who had some eighteen years experience of accident investigation and reconstruction, and Mr. Keith Benjamin, a forensic scientist employed at the Forensic Science Laboratory at Aldermaston. The defence called Mr. Henry Bland, a forensic scientist in private practice and formerly a senior member of the Home Office Forensic Science Service.
13.	P.C. Shellshear prepared and produced a number of plans and gave evidence by reference to them and police photographs of the scene.  The plans and photographs indicated a rise in the apron of the driveway leading off the road into the gateway and, beyond it, a level stony drive of about two car lengths to the front of the bungalow.  In addition to showing the car embedded in the front of the bungalow and Mrs. Maloney’s body under it in the position that we have described, the evidence showed three matters of particular significance: 1) what appeared to be offside tyre marks of the car made in the course of a right hand turn off the road through the gateway and along the driveway; 2) what appeared to be an acceleration scuff as a continuation of those marks starting at about two metres inside the line of the gateway, extending nearly four metres towards the bungalow  and finishing just short of and to the right of the rear offside wheel of the car; and 3) what appeared to be scuff marks of Mrs Maloney’s body having been dragged along the drive under the middle of the car, starting about four metres inside the line of the gateway.
14.	P.C. Shellshear also examined the five –barred gate with a view to testing the appellant’s account of having driven into it when it was closed or nearly closed.  The gate, which was about three metres long and set back about 2.75 metres from road edge, opened inwards into the driveway with the hinge on the right looking from the road.  Like many such gates it had, for some time before Mrs. Maloney’s death, fallen so that in whatever position it was, its leading edge rested on the ground.  The appellant said in evidence that it had to be lifted before it could be moved.  When P. C. Shellshear and other officers first saw it on being called to the scene it was wedged in an open position – some 90 degrees and wide enough to allow a vehicle to pass through it without contact.  But nothing flowed from that because a number of friends of the Maloneys, and possibly others, had been to the bungalow that morning before the arrival of the police.  However, there were two matters that P.C. Shellshear did consider significant.  First, there was damage to the centre of the gate, which, while leaving it functioning, had fractured the middle horizontal bar and had broken off parts of the two diagonal bars where they had formed an apex in the upper half of the gate at its middle.
15.	P.C. Shellshear undertook some reconstructions about a fortnight later with the gate still in its damaged state and after removal and rehanging.  They included positioning a Daimler car, identical in shape and size to the Maloneys’ Jaguar, with both its offside wheels on the line of the offside tyre marks before the acceleration scuff and then adjusting the position of the car and the gate so as to match the damage to the offside front of the car with that of the damage to the middle of the gate.  From that exercise, he concluded that the offside tyre and acceleration scuff marks had been made by the Jaguar and that the gate must have been open to about 33 degrees when the appellant struck it on driving in.  He added that, in the light of that reconstruction, if the gate had been closed or nearly closed the car would have been so far over to the left that it would have struck the left hand retaining gate post - but that there was no damage to it.  With the car in that position and with its offside front in contact with the gate, he then drove forward slowly, but was only able to push the gate open to about 42 degrees before it stuck firmly in the ground.  He did not attempt to push it any further for fear of causing serious damage to the car and further serious damage to the gate.  It was obvious, as the Judge was to observe in his summing-up, that this exercise had serious limitations as a purported reconstruction or testing of the appellant’s defence of having driven fast and in one continuous movement into a closed or nearly closed gate and bursting it open. 
16.	As we have said, P.C. Shellshear considered that the damage to the gate and to the offside front of the car, together with the tyre marks on the driveway, indicated that the gate would have been open at an angle of about 33 degrees when the car struck it.  Second, he said that the lie of the surface of the drive along the opening radius of the gate and of the drop of the gate were such that the gate could only open a further nine degrees to about 42 degrees before its leading edge would have caught and stuck in the ground.   There was a mark in the driveway indicating that the gate did stick in that position.  He concluded that an impact from a heavy vehicle like the appellant’s Jaguar so as to force the gate open further and sufficiently to allow it to continue on along the driveway would have caused the gate so much damage as to cause its collapse - which it had not done.  Further, there were no scrape marks on the outward facing side of the gate or on the offside of the car consistent with the appellant’s description in evidence of having pushed the partially open gate further open to pass through the gateway. 
17.	Those signs, which had formed the basis for the reconstructions undertaken by PC Shellshear, led him to express the view that the appellant or Mrs. Maloney must have opened the gate sufficiently to allow the car to pass through and that thereafter the car must have done so, accelerating up the driveway, running over and dragging her prone body with it before crashing into the front of the bungalow.  He suggested that by then the car must have been moving quite fast – at between 10 and 18 m.p.h. – to produce the acceleration scuff marks on the drive and the damage to its front and to the bungalow wall.
18.	P.C. Shellshear’s reconstructions were explored in cross-examination by Mr. Ian Goldsworthy, QC, who appeared for the appellant at the trial, in particular as to the lack of alignment of the car in its final position in the drive with the acceleration scuff and the possibility that the scuff had been made by some other vehicle.  P.C. Shellshear discounted that suggestion, pointing out that the car’s impact with the wall could have caused some sideways displacement and that the acceleration scuff was very fresh and consistent with the very wide tyres of the Jaguar.  All this evidence of P.C. Shellshear, in particular that of his reconstructions, was material upon which the prosecution “place[d] great reliance”, as the Judge reminded the jury in his summing-up.  If correct, it indicated that the gate could not have been closed or nearly closed at the moment of impact or pushed open sufficiently to allow the Jaguar to pass through without the gate collapsing - which it had not done.  And it would follow that the appellant must have driven through the gate when it was sufficiently open for him to see his wife on the driveway in front of him.  
19.	The alternative possibility advanced by the appellant’s expert witness, Mr. Bland,  was that the gate was indeed closed or nearly closed and that the upward gradient of the entrance to the drive as the car turned into it would have had a lifting effect on initial impact between the front of the car and the gate so as to spring the gate upwards and beyond the point at which it would have normally stuck on opening – a possibility contradicted by the appellant’s own account of pushing it open in two stages, on the first of which it dug into the ground.  If that had happened the gate need not have suffered any more damage from the impact than it did, and there would have been no scraping of the gate along the offside of the car as it passed through.   This possibility was, however, discounted by Mr. Benjamin, the forensic scientist called by the prosecution, on the basis that the damage caused to the gate, though falling short of its total collapse, would have weakened it so as to cause it to fall rather than be lifted immediately after impact.  On a broader consideration of the factual evidence, he too was of the view that it was inconsistent with the appellant’s account of having driven into the gate when it was closed or so nearly closed as to obstruct vision of the prone body of his wife on the drive behind it. 
20.	Mr. Bland, the appellant’s expert witness, gave evidence about the damage to the gate and its significance, in particular as to the possibility that the Jaguar’s impact with it could have lifted it and knocked it wide open.   Mr. Bland said he believed that the damage to the undersides of the diagonal bars indicated an upward force from the car as it struck them in mounting the slope from the road so as to lift the gate and spring it wide open.  He also prepared and showed the jury a video recording of the view from the Jaguar as it entered the driveway to illustrate how the rising car bonnet and the closed or nearly closed gate would have obstructed the appellant’s view of the surface of the drive inside the gateway.  Mr. Bland acknowledged, however, in reliance on P.C. Shellshear’s evidence and reconstructions, that when the appellant’s Jaguar struck the gate it could not have been closed or nearly closed and must have been open to about 33 degrees.
The reference and the proposed further expert evidence
21.	On 26th June 2000 the Criminal Cases Review Commission referred the matter to this Court with a view to it considering the receipt of fresh evidence from Dr. Lambourn possibly undermining P.C. Shellshear’s evidence.   Dr. Lambourn is a Principal Consultant in the Investigations and Risk Management Group at the Transport Research Laboratory.  He specialises in road accident reconstructions. 
22.	The Commission, in its statement of reasons for its decision to refer, drew attention, in particular, to Dr. Lambourn’s report of 23rd April 1999, challenging P.C. Shellshear’s evidence that the gate could not have been closed or nearly closed when the appellant drove into it.  The Commission noted that the proposed evidence went largely to the inferences available to be drawn at the trial from the evidence of the tyre marks.  Notwithstanding what the Commission described as “the very strong evidence from the Harbord-Hammonds” and the inconsistency with it, and implausibility, of the appellant’s account, it considered that the Court might take the view that “it [could] not be certain” that the jury would have found the appellant guilty if they had had the benefit of Dr. Lambourn’s evidence.  The Commission’s reasons, which it set out at pages 20 and 21 of its statement, are that, “at the very highest,” Dr. Lambourn’s findings, though not confirming the truth of the appellant’s account, lend some credibility to the possibility of the gate having been sprung open.  Such a possibility, it observed, was severely undermined at trial by P.C. Shellshear’s findings, which were not effectively contradicted by any defence expert, and to which the Judge gave great weight:
“The effect of the evidence of PC Shellshear, if accepted, was to render it impossible for Mr. Maloney to have been telling the truth when he stated that he had run into the gate, forced it open and carried on without stopping until he collided with the house.  Given the weight attributed to that evidence and the lack of effective rebuttal from the defence, it is likely that the evidence of PC Shellshear had a significant influence on the jury.   If Dr Lambourn’s evidence had been available at the time of the trial it would have counteracted the influence of PC Shellshear’s evidence and offered an alternative possibility in which Mr Maloney’s car hit the gate in a closed or nearly closed position.  This in turn, because of the layout of the drive, would have imparted an upward component to the force of the car on the gate.  Dr Lambourn does not suggest that this is capable of proving that the gate sprung open but it nevertheless does leave that possibility alive.”

23.	The Commission expressed its conclusion for making the reference in the following terms:
“Having considered all of the foregoing matters the Commission considers that the Court of Appeal may take the view that it cannot be certain that the jury would necessarily have come to the conclusion that they did, had they heard the evidence of Dr. Lambourn.  Consequently the Commission considers that there is a real possibility of the conviction not being upheld if it were to be referred,”
It can be seen from the Commission’s reasoning that it equated a conclusion of the possibility that the jury might have reached a different verdict if they had had the benefit of Dr. Lambourn’s evidence with a conclusion that the verdict is, therefore, necessarily unsafe.  In adopting that approach it relied expressly on an unreported decision of this Court in R v. McNamee of 17th December 1998 (CA No. 9704481).  It did not have the benefit of the yet to be given decisions of the House of Lords in R v. Pendleton [2002] 1 Cr. App. R 34 or of this Court in R v. Hanratty [2002] 2 Cr. App. R 30.
24.	Since submitting his report of 23rd April 1999, Dr. Lambourn has prepared two further reports, both of which the Court has read, in which he advances three main propositions in support of the argument on appeal that the appellant could have entered the driveway in the manner for which the defence expert, Mr. Bland, contended at trial. The first is that the car in striking the gate may have had an upward motion sufficient to throw the gate open.  The second is that the gate was unlikely to have been open to the extent of 33 degrees when struck by the Jaguar, as maintained by P.C. Shellshear at trial, but was probably closed or nearly closed.  And the third is that the car would not have hit the left-hand gatepost if the gate had been closed or nearly closed, as P.C. Shellshear had also maintained.  The Court has considered those reports and Dr. Lambourn’s evidence confirming them with a view to considering whether it is “necessary or in the interests of justice” to “receive” his evidence, having regard to the criteria in section 23(1) and (2) of the Criminal Appeal Act 1967 as amended.  There is no issue as to whether it is capable of belief, or as to whether it would have been admissible at trial, or, to the extent that it is new evidence, the reasonableness of not adducing it at trial.  
25.	The sole issue is whether Dr. Lambourn’s evidence, if received by the Court, would afford any ground for allowing the appeal.  On that issue, Dr. Lambourn’s reports and evidence go to two main points.  
26.	The first is the contention that P.C. Shellshear’s reconstruction and the inferences that he drew from it were wrong, in that the officer had been misled by the offside tyre marks and their continuation in the acceleration scuff inside the gateway into positioning the car too far to the right as it struck the gate.  And he had wrongly concluded from the damage to the offside front of the car and the mid-point of the gate that it must have been open to about 33 degrees at the moment of impact.  The second is the suggested possibility that the impact of the car striking the gate would have been an upwards movement capable of springing it wide open. - a possibility, as we have said, contradicted by the appellant’s own evidence of pushing it open in two stages, on the first of which it dug into the ground.  Dr. Lambourn relies for that suggestion, as Mr. Bland did when advancing a similar theory on behalf of the appellant at trial, on the upward slope from the road to the line of the gateway.   He also relies on a factor that Mr. Bland did not mention at trial, namely the rising of the front of the car on its suspension as it reached the top of that short slope.  
27.	As to the first point, whether the gate was open or closed at the moment of impact, Dr. Lambourn, like P.C. Shellshear, has undertaken a reconstruction from the available evidence (which no longer includes the Jaguar car or the gate) of what happened in the driveway of the Maloney’s home on the night of Mrs. Maloney’s death.  However, his reconstruction was undertaken through a programme of computer simulations, a technology that was not available at the time of trial.   We do not attempt to describe the technicalities of that programme.  Mr. Adrian Redgrave, QC, who appeared for the Crown at trial and on this reference, did not explore its technical integrity or the assumptions on which the programme was prepared. And Dr. Lambourn freely acknowledged the limitations of the technology, in particular, that it has not enabled him to produce an exact picture of what Mr. Maloney did on the night in question.  The important matter for the Court’s purpose is the effect of the conclusions that Dr. Lambourn drew from the available evidence and his computer simulations.   
28.	There are matters on which he agrees with P.C. Shellshear.  First, the acceleration scuff mark in the drive was caused by the Jaguar and its rear offside wheel is likely to have followed the path indicated by the tyre marks leading from the road and into that scuff mark.  Second, the initial impact of the offside front of the car against the gate was roughly in the middle of the gate.  Third, Mrs. Maloney was most likely to have been already down on the ground with her head towards the inside of the gateway when the appellant’s car made its first contact with her. 
29.	But, as we have indicated,  there are matters on which Dr. Lambourn disagrees with P.C. Shellshear.  These have a common source in Dr. Lambourn’s identification of the phenomenon of “off-tracking”, that is that the front wheel of a vehicle on the inside of a turn at a relatively low speed will follow a path outside that of the rear wheel.  The effect of that, on a right hand turn, as here, is that the front of the vehicle will follow a course further to the left than the rear.  The consequential position of the front of the vehicle in the driveway and its angle to the gateway, Dr. Lambourn suggests, are that it would have been possible for the Jaguar to have struck the middle of the gate with its offside front when the gate was closed or nearly closed and still miss the left gate post.  P.C. Shellshear’s error in his reconstructions, he says, was to place both offside wheels of the Jaguar on the offside wheel marks on the entrance to and into the drive, leading him wrongly to put the front of the car further to the right than it would have been as it passed through the gateway.  And from that, P.C. Shellshear wrongly concluded from the respective damage to the gate and the front of the car that the gate at the time of impact must have been about 33 degrees open.  
30.	The prosecution accepts the criticism of P. C. Shellshear’s reconstruction insofar as it goes to his precise positioning and angle of the car as it struck the gate and as to whether it would have struck the left hand gate post if the gate had been closed or nearly closed.  But there remains an issue as to how much practical difference Dr. Lambourn’s correct identification of the off-tracking phenomenon would have had on P.C. Shellshear’s original conclusion as to how much less than 33 degrees of opening was indicated by the correlation of the damage to the car with that to the gate.  Dr. Lambourn acknowledges that it would be difficult to say by how much P.C. Shellshear, in the course of his reconstructions, should have positioned the front wheels further to the left.  He concluded in paragraph 5.24 of his main report:
“My opinion, therefore, is that while it may just have been possible for Mr. Maloney to have driven his car into the gateway and to have found the gate open at 33 degrees, it is far more probable that the gate was closed or only open by a small amount.  Indeed, there is nothing special about 33 degrees: one could consider and argue the possibilities for any angle between 0 degrees and 33 degrees, and perhaps even for a slightly greater angle.”

31.	As to the possible lifting effect of the impact, Dr. Lambourn largely echoes, as we have said, the proposition of Mr. Bland at trial, that the upward slope of the approach to the gate could have caused the car, on impact with the gate, to spring or lift it from a closed or nearly closed position so as to allow it to open freely and let the Jaguar pass through.  But he introduces the possibility of a further contributor to the upward movement, namely the delayed action of the car’s front suspension, which would have caused the front to rise as the front wheels topped the slope up from the road.  He claims some support for this fairly basic engineering proposition from his computer simulations, which, on a “default” setting for want of knowledge of the characteristics of the Jaguar’s suspension, predicted that when the simulated car met the simulated closed gate, it would be rising on its suspension as well as on the slope of the ground.  And, he says, as Mr. Bland said at trial, that the marks of impact damage to the underside of one of the broken diagonal bars confirm that the impact would have had some lifting effect on the gate.  However, he agrees with a point made more broadly by Mr. Benjamin at trial that the breaking of the diagonal bars would have quickly had some dissipating effect on that lifting movement.  
32.	In the result, Dr. Lambourn’s conclusion on this point is very tentative.   He cannot say whether the uplifting effect of which he has spoken would have caused the gate to spring wide open.  All he can say is that it is “a real possibility”, but can “go no further”.  In this respect his evidence is less strongly in the appellant’s favour than that of Mr. Bland at trial, who said that he believed it would have had that effect.  This is how Dr. Lambourn expressed himself in paragraphs 6.16 and 6.17 of his main report:
“6.16  Is it likely, then, that the gates would have been thrown open by the impact?  I have considered very carefully whether the likely outcome can be calculated or computed, but have come to the conclusion that the unknown quantities are too many and too great for this to be done in what would, in any case, be a difficult calculation.  Among them are: the actual upwards speed of the front of the car as it met the gate, the detailed interaction of the front of the car and the gate (both in terms of the friction between the two, and any ‘hooking’ effect), the detailed profile of the ground inside the gate, the looseness of the gate on its hinges, and the looseness of the gatepost in the ground.

6.17  In the final analysis, I find that I cannot say whether I think it is likely or unlikely that a brief hard impact from the Jaguar to the closed gate would have caused it to be thrown open sufficiently wide to allow the car to pass through.  However, given that there would have been an upward element to the impact, it must stand as a real possibility.” 

33.	With that possibility in mind, Dr. Lambourn also criticises P.C. Shellshear’s conclusion from his reconstruction, which included driving the Daimler slowly against the damaged gate when opened to 33 degrees, that the gate would have stuck at about 42 degrees and have been much more seriously damaged than it was.  The reconstruction, Dr. Lambourn says, was unreliable because it was done at a very low speed and did not take account of the possible upward motion of the car against the closed or nearly closed gate. 
The submissions
34.	Mr. David Fisher, QC, on behalf of the appellant, while acknowledging the tentative nature of Dr. Lambourn’s conclusions, laid great stress on the importance that the prosecution and the Judge gave to P.C. Shellshear’s evidence, in particular that of his reconstructions, as a means of demonstrating that the appellant’s account of accidentally causing his wife’s death was a lie.  He maintained that, if Dr. Lambourn’s evidence of alternative possibilities had been available at trial, the force of P.C. Shellshear’s evidence as to the positioning of the car and of the gate on impact, and of Mr.  Bland’s acceptance of it, would have been weakened and the jury might have been unsure of guilt. 
35.	Mr. Fisher illustrated this basic submission by drawing attention to the opening of prosecuting counsel and the Judge’s directions on these points.  Mr. Redgrave had told the jury that it could prove, with the assistance of P.C. Shellshear’s evidence, that the appellant’s account of turning right at speed and smashing the gate open in one continuous movement was impossible and, therefore, a lie.  The Judge’s description in his summing-up of the prosecution case was to similar effect, though he also stressed the impossibility of the appellant’s account when put against the evidence of both the Harbord-Hammonds and of P.C. Shellshear.  
36.	The Judge, at page 41 of his summing-up, reminded the jury of the inconsistency of the appellant’s account of how he came to run over his wife with both his own and the Harbord-Hammonds’ evidence of seeing her continuing along the road past the gateway just before he turned into it.  In doing so, the Judge, who had previously given them an appropriate direction on lies, said:
 “It [the appellant’s account] does not fit with the Harbord-Hammonds and to that extent you will have to look at it with the greatest care to determine whether … this is simply an account of somebody who did not have any real memory of what happened or a very fuddled memory and having locked himself into that account … or whether he is a person who was deliberately lying to hide the truth.” 
 
37.	As to P.C. Shellshear’s evidence and reconstructions on the issue whether the gate was closed or nearly closed when the appellant drove through the gateway, the Judge, at pages 32 - 34 of his summing-up, emphasised its significance in the following terms and the fact that it was challenged: 
“Now so far as the reconstruction was concerned, the prosecution place great reliance upon the reconstruction, for this reason.  Central to the prosecution’s case, and as I have indicated, the only basis upon which you could find the defendant guilty of either murder or manslaughter, is the proposition that he must have known that … [his wife] was lying in the drive.  The prosecution say he must have known it because in order for him to have got through that gate causing the damage that he did to the gate there must have been the following things present at the relevant time.  Firstly, the fact that the gate was open to about thirty three degrees because it is only if the gate is open to thirty three degrees when he drives in that you can get the damage to the gate at that position.
Secondly, the gate can only move eighteen inches or so before it becomes stuck and cannot move any further simply by being pushed by the car unless it is going to collapse, and if you call that moving, move to that extent.  So that either the defendant must have got out of the car in order to move the gate and if he did he must have seen Mrs. Maloney, or Mrs. Maloney opened the gate in circumstances which resulted in his seeing her, and producing for whatever reason by reason of a fight, a struggle or whatever, the position of Mrs. Maloney being on the ground.  But either way the prosecution say the defendant must have known that she was on the ground – there, and then on the ground.  And the prosecution have to satisfy you that that is the only scenario which fits the facts before you could be sure, of course, that he knew that she was there when he drove through that gate.
So what was the way in which they sought to establish that?  Well, they did it by the reconstruction which undoubtedly, you may feel, justifies the conclusion that the car came into contact with the gate when the gate was open.  In other words, somebody must have opened the gate – at least to thirty three degrees.  The damage to the gate is too consistent with the damage to the car and to the angle of the tyre prints for there to be any other conclusion, say the prosecution, and having heard the evidence you may feel that that is a conclusion which is correct.”

38.	Mr. Fisher submitted that, given the following four acknowledged flaws in P.C. Shellshear’s and Mr. Benjamin’s evidence, the prosecution’s mistaken heavy reliance on it, underlined in this way by the Judge, must render the conviction unsafe:
1) the reconstruction with the already damaged gate, following removal and rehanging, rendered any reliable reconstruction impossible or potentially misleading;
2) the car’s tyres were not properly aligned on the turn into the driveway, thereby not taking account of the off-tracking effect of rear wheels on a turn;
3) the gate was not necessarily open anywhere near as much as 33 degrees; and 
4) the reconstruction of the impact between the car and the gate was at a very much lower speed than that at which the appellant’s Jaguar, on his account struck it. 

He submitted that, if the jury had had the benefit of Dr. Lambourn’s authoritative evidence assisted by the modern technology now available to him, particularly as to the flawed nature of P.C. Shellshear’s reconstructions, they might not have convicted.   Given the centrality of that evidence to the critical question whether the gate was open or closed when the Jaguar struck it, he maintained that the conviction must be unsafe. 
39.	Mr. Redgrave acknowledged those errors in P.C. Shellshear’s reconstructions. However, he said that the prosecution case had not depended solely upon the conclusions that P.C. Shellshear had drawn from them.   He maintained that there had been evidence independent of the reconstructions capable of making the jury sure of guilt.  He relied on: 1) the evidence of the serious row between the appellant and his wife in the public house; 2) its continuation and development into the physical altercation in the roadway as he followed her home; and 3) the vital evidence of the Harbord-Hammonds and of the appellant, confirming his account in interview, that she had walked past the driveway to the bungalow at the time when, according to him, he drove at speed from the physical altercation in the road and, in one continuous movement, turned into the driveway, through the  closed gate and into the wall of the bungalow.  This, said Mr. Redgrave, was clear evidence that the appellant had lied about the most critical part of the story - how his wife met her death.  If the appellant had driven straight into the driveway, he could not have driven over her body since, on his and the Harbord-Hammonds’ evidence, she was still walking away from him up the road.
40.	Mr. Fisher’s response to those contentions was to stress the circumstantial nature of the non-expert evidence on which the prosecution relied, including that of the Harbord-Hammonds, who had given no evidence of what the appellant had done when he drove into the gateway of the bungalow, or as to how Mrs. Maloney came to be on the ground inside the gateway before being run over, or as to how her possessions came to be scattered about.  Whilst he agreed that the jury could have convicted the appellant of murder without P.C. Shellshear’s reconstructions, that was not, he said, the way in which the prosecution or the Judge had put its case.
Conclusion
41.	In our view, there is force in Mr. Redgrave’s main submission.  While the prosecution relied heavily on P.C. Shellshear’s reconstruction, it did not rely solely on it.  And to the extent that it relied on his reconstructions, it was plain, as the Judge pointed out to the jury, that they had certain limitations, in particular in the slow driving of a car against an already damaged gate.  Having reminded them of the defence case that the Jaguar had sprung the gate open, the Judge said, at pages 35 –36 of the summing-up:
“Well, the prosecution say that cannot be so because it is clear that the gate behaved in a way which would prevent that from being a possible solution but the gate … upon which they tested their theory or came to their conclusion was clearly the damaged gate and you will have think very carefully whether it would be proper to come to a conclusion that the prosecution must be right when the only basis that they have used to come to that conclusion essentially is a reconstruction using the damaged gate.  So you will approach with some care, you may feel [sic] would be the right way of doing it, the conclusion put forward by the police.  The prosecution’s evidence is clearly honest evidence, and it is doing its best to help you but to pretend that the gate will, in fact, behave after it has been damaged in the way it was by the car in exactly the same way as it would have behaved on the night is perhaps going a little bit further than would be right.
However, … it is necessary to point out that the defendant’s evidence, on the other hand, in relation to the explanation being that the gate must have lifted because of the way in which the car came into contact with the ... [diagonal bars] carries with it the vice that of course, the bits which are said to have caused it be lifted broke, so as Mr. Benjamin said, the moment they broke, the gate would have dropped.  Members of the jury that is the sort of conundrum which you are going to have to grapple with.  That is the difficulty with the evidence that you have to face and it is for you to come to your conclusion but remembering always that it is for the prosecution to establish its case.” 
42.	It is true, as Mr. Fisher urged, that those warnings about P.C. Shellshear’s evidence were directed primarily to that part of his reconstruction going to whether the gate could have sprung open as suggested by the defence, and not to the precise positioning of the car in the driveway at the point of impact.  However, those two strands of P.C. Shellshear’s evidence went to the same point, whether the gate was open sufficiently to allow the appellant to see his wife on the ground before he ran over her.   As to the possibility of the car springing the gate wide open, whether closed or partly open at the point of impact, Dr. Lambourn’s evidence added nothing of significance to that of Mr. Bland at trial.  If anything, it was more tentative and thus less helpful to the appellant than Mr. Bland’s evidence had been. And, as we have indicated, the Judge warned the jury in clear terms about P.C Shellshear’s reconstruction and that it was disputed.  Even without such warning, it must have been obvious to the jury that the reconstruction with the already damaged gate and the slow presentation of the car to it bore little resemblance to the defence case, derived essentially from the evidence of Mr. Bland, of the Jaguar having crashed into the gate and throwing it open in one continuous movement.   That case, as we have indicated in paragraph 11 above, was, in any event, contradicted by the appellant’s own evidence of a two stage opening of the gate – the first impact causing the gate to dig into the ground and the second, an acceleration forward so as to move it further open. 
43.	As to the precise position of the Jaguar and the gate at the point of impact, it is for consideration how much difference Dr. Lambourn’s evidence, if it had been available, might have affected what the jury made of the remainder of the P.C. Shellshear’s reconstruction and of the other evidence in the case.  In this respect also, as we have indicated, Dr. Lambourn’s evidence was very tentative.  He acknowledged the difficulty in identifying by how much P.C. Shellshear’s failure to allow for the off-tracking phenomenon had caused him to mis-position the car in his reconstruction.  Moreover, it is plain from the above passages in the Judge’s summing-up that he indicated that P.C. Shellshear’s reconstruction was of questionable value and that the jury should consider it in the context of all the other evidence, including that of the Harbord-Hammonds and the appellant’s own account in the witness box. 
44.	We should also mention that the Judge had earlier in his summing-up given the jury a conventionally and appropriately strong warning that they were not bound by the evidence of the expert witnesses on either side.  This is how he put it at page 7:
“You have heard experts before you from both the prosecution and from the defence and they are very good examples of people who come before you seeking not only to tell you the primary facts but also to seek to draw inferences, in other words put to you conclusion that they draw from those facts.  You are not bound by those conclusions, be they conclusions expressed by the prosecution witnesses or the defence witnesses.  Their evidence is there simply to help you to decide what conclusions you draw from the facts.  The mere fact that a person calls himself an expert does not entitle him to be believed or accepted by reason of that very fact.  He is cross-examined.  You apply your own common sense.  That is what you are there for.  And I suggest and indeed will comment when we come to the evidence of those experts that this is primarily a case where common sense may help you as much as anything else …” 
 
45.	The material test for the Court both in considering whether to “receive” the evidence of Dr. Lambourn under section 23(1) and the appeal itself is whether, under section 23(2)(b), “it may afford any ground for allowing the appeal”, that is, for holding the conviction to be unsafe.   The issue of unsafety, which by the very meaning of the word, makes it difficult to distinguish from the notion implicit in section 23(2)(b) of possible unsafety, is one for the Court in the light of the evidence before the jury and the proposed fresh evidence; see R v. Trevor [1998] Crim L.R. 652.  The issue is not whether the Court considers, in the light of the proposed fresh evidence, that a jury might conceivably have reached a different decision if it had heard it.  So, the Commission and the Court should beware against adopting, consciously or unconsciously, a train of thought that unless they can be certain the jury would have convicted had they heard the proffered fresh evidence, the conviction must be unsafe.  However, the Court, in a case of any difficulty should usually “test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the jury to convict” – “the jury impact test”; see R v. Pendleton, per Lord Bingham of Cornhill at paras. 18 – 19, and R v. Hanratty, at para. 93, citing the judgment of Judge LJ in R  v. Hakala [2002] EWCA Crim 730 at para. 11.
46.	We have considered whether the evidence of Dr. Lambourn, if received under section 23(1), would have an impact on the safety of Mr. Maloney’s conviction.  We look at it in the context of the two strands of evidence upon which the prosecution relied, the challenged and now partially contradicted evidence of P.C. Shellshear and the inconsistency of the appellant’s defence with the Harbord-Hammonds’ undisputed evidence and his own account of the critical moments leading to his wife’s death.  
47.	In our view, Dr. Lambourn’s evidence, had it been available to the jury, would have added nothing to Mr. Bland’s evidence of his belief that if the appellant had driven straight into the gate, whether closed or partly open, he would have sprung the gate wide open.  As we have said, Dr. Lambourn’s evidence was, if anything, less favourable to the appellant’s case, “a real possibility” of springing the gate open, no more.   Against that, P.C. Shellshear’s reconstruction, undertaken to evaluate and developed so as to reject that possibility, was patently of questionable value without any illumination from Dr. Lambourn; and the Judge warned them adequately about it.    
48.	As to the precise position of the gate and the car in the driveway on impact, we are confident that Dr. Lambourn’s inconclusive view as to the possible range of opening between 0 and 33 degrees, if it had been before the jury, would not have given them pause when considering the evidence in the case as a whole.  The account given by the Harbord-Hammonds and the appellant himself of his approach to the gateway, with his wife walking up the road beyond it, simply cannot stand with his description of crashing straight through the gate and running over her prone body on the driveway behind it. Something else must have happened very shortly after the Harbord-Hammonds left the scene and before the appellant ran over his wife – some disturbance to scatter her belongings all over the grass – some event to put her to the ground.  Whoever may have been responsible for putting her there, the appellant must have known about it.  And the jury, with the benefit of a proper direction from the Judge as to the significance of his lies, must have concluded that he lied because he had known she was on the ground in front of him when he had driven at and over her. There were other obvious difficulties about his case of having burst open a shut gate.  First, the evidence of P.C. Shellshear, including the photographs, about the limited damage to the gate and the difficulty in opening it was not and is not substantially challenged, as distinct from the value of his reconstructions.  Second, as we have pointed out more than once the appellant’s own evidence did not support the case advanced by his expert Mr. Bland and now taken up by Dr. Lambourn.
49.	For those reasons and having regard to the evidence as a whole, we are satisfied that the proposed fresh evidence of Dr. Lambourn, if we were to “receive” it under section 23, would have no impact upon the safety of the conviction.   Accordingly, we do not receive it and we dismiss the appeal.

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