Summary
Irregularities in an offender’s post office accounting records could not prove theft and did not provide the motive for his wife’s murder. Therefore, the admission of fresh evidence seeking to explain those irregularities did not affect the safety of his conviction for murder, as it was clear that the jury had rejected his explanation that his wife had been killed by robbers independently of the accounting records or any other financial evidence.
Abstract
The appellant, Robin Garbutt (G), appealed against a conviction of murder.
G’s wife had been murdered in the living quarters above the post office that they ran. It was G’s case that there had been a robbery at the post office and that the robbers had killed his wife. He had gone downstairs to open the shop some time after 04.00 and opened the post office safe at 08.35. A masked robber armed with a gun told him that they his wife was being upstairs, and ordered him to fill a bag with money. G found his wife dead upstairs and called the emergency services. It was the Crown’s case that G had killed his wife and falsely reported a robbery to cover it up. Expert evidence confirmed that the death had occurred hours before G’s call at 08.37. The post office safe electronics showed that the safe was openable again at approximately 08.36; and G’s call was 79 seconds later. Therefore, the events as described by G had to have occurred, within 79 seconds. The Crown also alleged that G and his wife were in financial difficulties; there were irregularities in the post office accounting records which went back to 2009; the absence of money in the safe was because of theft over a period of time by G; the overnight cash declarations were significantly higher than the post office head quarters computerised model suggested they should be; even though there were requests for payment of the surplus cash back to headquarters, no cash except surplus coinage was sent. At the trial, the jury had the accounting records from 2009 onwards. After trial, it transpired that the accounting records went back to 2004. Those records and information regarding variable limits for cash requests were admitted at G’s request at the instant appeal.
G submitted that (1) the pattern of accounting identified in the records from 2009 onwards could not be relied upon as demonstrating theft because a similar accounting pattern was identified in the 2004 to 2008 records which were deemed satisfactory in a 2008 audit, and that if the jury had the earlier records it would have taken a different view of his credibility; (2) the alleged theft from post office funds was put forward as the motive for murder.
Held
Appeal dismissed.
(1) The additional evidence about variable limits to requests for cash did not affect the safety of G’s conviction. G should have had the additional accounting records at trial. That would have allowed him to make additional points, including that he had always made returns showing larger sums of cash than the computer-generated model had suggested, which although not challenged, could have been verified. However, that would not have meant that the accounting records could not be relied upon by the Crown to show the real likelihood of defalcations. That the records went back several years before a satisfactory audit in 2008 did not mean that they had not been taken advantage of from 2009 onwards to use post office funds dishonestly. G’s explanation for non-compliance with the computer-generated requests for remittances had been unsatisfactory (see paras 22-23 of judgment). (2) The evidence of the accounting irregularities could not of itself prove theft. It was important in that it gave an alternative explanation consistent with there having been no robbery, but the evidence before the jury demonstrated that the possibility of a robbery as described by G had been rejected independently of the financial evidence. Even if some assumptions were made in G’s favour regarding the alleged robbery, the evidence as to the timing of death and its impact on what must have happened was conclusive. If the robbery had occurred in the way G asserted, the robbers would have had to have been at the premises several hours before appearing and taking the money. It was highly unlikely that robbers would have arrived early, done nothing to further the robbery or have gone upstairs when the money was downstairs in the shop. If the robbers knew of the 8.30 time lock on the safe as suggested that was even less reason to arrive hours before the robbery could be effected, or to go upstairs. Further, it was improbable that the robbers would have killed G’s wife without him hearing anything and that having killed her, they waited for the safe to be opened, or that they would not have been violent towards G who was alone in the shop. If the robbers had a gun as G alleged, it was doubtful that they would have needed an iron bar, which was the murder weapon. However, if that was the case, it was difficult to see why they would have placed it on the wall at the back of the premises in their haste of flight. In addition to those improbabilities, G, who had been robbed before, had left the back door open despite warning his staff not to, had made no attempt to press any panic buttons which triggered the silent alarms, and had given evidence contradicting the fact that he knew the alarms were silent. Those facts all supported the clear conclusion that G’s conviction was safe (paras 24-31 of judgment).
Bench: Hughes LJ; Hedley J; Maddison J
Counsel: For the appellant: James M Hill QC, Martin P Towers.
For the respondent: David W Hatton QC.
Copyright: Westlaw UK
Date first published: May, 2012
Neil Wilby Media 