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E-mail and Domain Names: PETROLIAM NASIONAL BHD & ORS V KHOO NEE KIONG (Malaysia)

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The Malayan Law Journal

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PETROLIAM NASIONAL BHD & ORS V KHOO NEE KIONG
[2003] 4 MLJ 216
CIVIL PROCEEDINGS NO 22–623 OF 2001
HIGH COURT (PULAU PINANG)
DECIDED-DATE-1: 5 JULY 2003
SU GEOK YIAM JC
CATCHWORDS:
Civil Procedure – Parties – Proper parties to be sued, whether – Application for inter partes interim injunction to restrain defendant from publishing impugned statements on the internet – Whether defendant was person who had sent e-mails – Whether defendant was person who had operated website

Evidence – Documentary evidence – Computer printout – Application for inter partes interim injunction to restrain defendant from publishing impugned statements – Whether mandatory for plaintiffs to exhibit certificate pursuant to s 90A of the Evidence Act 1950 in respect of the computer printouts containing impugned statements in their application for the interim injunction

Tort – Defamation – Libel – Publication on internet – Application for inter partes interim injunction to restrain defendant from publishing impugned statements – Whether impugned statements calculated to injure reputation of plaintiffs – Whether impugned statements had been published to third parties – Whether plaintiffs suffered irreparable loss and damage by reason of publication – Whether plaintiffs in financial position to meet undertaking as to damages – Whether there was delay on plaintiffs’ part in bringing application

Tort – Passing off – Name of business – Domain names – Defendant registered domain names containing the word ‘Petronas’ – Application for inter partes interim injunction to restrain defendant from passing off website with domain name comprising word ‘Petronas’ – Whether defendant had eroded exclusive goodwill in the name ‘Petronas’ – Whether domain names were instruments of fraud – Whether use of domain names by defendant would result in passing off – Whether plaintiffs had shown that there was threat of passing off and trademark infringement on defendant’s part

HEADNOTES:
The first plaintiff was a well-known national petroleum corporation. The second plaintiff was one of the marketing arms of the first plaintiff and the third plaintiff was in the business of processing and transmitting natural gas and it conducted its gas business under the trade name ‘Petronas Gas’. The defendant was an individual carrying out trading operations as a registered sole proprietor under the trade/business name ‘Araneum Consulting Services’ and was in no way associated with the plaintiffs. Sometime in 2001, the plaintiffs made a series of searches of domain names on the Internet using the search engine ‘better-whois.com’ and discovered that the defendant had registered the domain names ‘petronas-dagangan.com’, ‘petronasgas.com’, ‘mypetronasdagangan.com’ and ‘mypetronas.com’ (‘the said domain names’) for purposes of sale. The defendant had also maintained a website under the name ‘www.petronasgas.com’ (‘the Petronas website’) which purported to provide information on,  [*217] inter alia, the locality of the plaintiffs’ service stations. A printout of the main webpage of the Petronas website showed that it was maintained by the defendant. The Petronas website was also accessible via ‘URL HTTP://www.searchmalaysia.com’ (‘the searchmalaysia website’). On the searchmalaysia website, the domain name ‘petronasgas.com’ was described as a subsidiary of ‘searchmalaysia. com’. In response to a request from the first plaintiff to the defendant to transfer to the first plaintiff the registration of the said domain names on the ground that ‘Petronas’ was the first plaintiff’s trade name worldwide and the intellectual property rights in the trade name belonged to the first plaintiff, the defendant had published certain statements via e-mail (‘the impugned statements’) which the plaintiffs averred clearly referred to the plaintiffs and were defamatory. In this application, the plaintiffs sought the following reliefs on the grounds of passing off of domain names and defamation: (a) an inter partes interim injunction to restrain the defendant from: (i) passing off or attempting to pass off any website with a domain name comprising the word ‘Petronas’ which was not related to a website connected with the plaintiffs; (ii) making any representation to any registrar of domain names that the defendant was connected or associated with the plaintiffs and/or the name ‘Petronas’ and the goodwill subsisting therein; and (iii) registering or attempting to register on the internet any domain name containing the word ‘Petronas’; and (b) an inter partes interim injunction to restrain the defendant from publishing or posting or disseminating the impugned statements.

Held, allowing the plaintiffs’ application:
(1)   The plaintiffs had shown that the name in the e-mail address was that
of the defendant and that the defendant was the sole proprietor of
Araneum Consulting Services and that both the websites were operated by
Araneum Consulting Services. The searches conducted by the plaintiffs
on the said domain names showed that the registrants were the
defendant, Araneum Consulting Services and ‘Araneum@email.com for sales’
. Further, the offensive e-mail also carried the hand phone number of
the defendant. In the circumstances of this case, the court was more
than satisfied that it was most probably the defendant who had sent the
e-mail and who had set up the webpage and it followed, therefore, that
the plaintiffs had sufficiently identified the defendant for the
purposes of the injunctive relief sought by the plaintiffs in this
application (see pp 233A –B, 235F, 236G –H).
(2)   It was not mandatory for the plaintiffs to exhibit a certificate
pursuant to s 90A of the Evidence Act 1950 (‘the Act’) in respect of
the computer printouts containing the impugned statements in the
affidavit-in-support of their application for the interim injunctions.
This was because at this stage of the proceedings, the plaintiffs only
had to show a bona fide case or a serious question  [*218] to be
tried and there was no necessity for the plaintiffs to show a prima
facie case. The deponent of the plaintiffs’ affidavit-in-support had
deposed that the contents of the affidavit were within     his personal
knowledge unless otherwise stated. The defendant had not challenged nor
disputed the deponent’s affidavit-in-reply. The plaintiffs would only
have to tender the s 90A certificate if the plaintiffs did not wish to
call the officer who had personal knowledge as to the production of the
computer printouts by the computer to testify to that effect in the
trial proper (see pp 236H –I, 237F –H).
(3)   The impugned statements were manifestly defamatory. The plaintiffs had
shown that the natural and ordinary meaning of the impugned statements
was that: (a) the plaintiffs did not have any lawful claim to any
domain name containing the word ‘Petronas’; (b) the plaintiffs were in
the habit of resorting to strong-arm tactics to oppress and intimidate
other local companies and/or local business entities; (c) the
plaintiffs were attempting or have in the past attempted to extort
money from local companies or business entities by forcing them to
transfer domain names to the plaintiffs for free; (d) the plaintiffs
consistently behaved in an arrogant or high-handed fashion to oppress
and intimidate other local companies and/or local entities; (e) the
plaintiffs had acted like a ‘robber’ and their actions may be likened
to a form of theft;   and (f) the legal services department of the
plaintiffs was generally incompetent and/or ignorant. Secondly, the
plaintiffs had shown that the impugned statements were: (a) calculated
to injure the reputation of the plaintiffs by exposing them to hatred,
contempt or ridicule; (b) intended to lower the plaintiffs in the
estimation of right-thinking members of society generally; (c)
calculated to injure and disparage the plaintiffs’ reputation in the
plaintiffs’ office, profession and trade; and (d) intended to bring the
plaintiffs, by virtue of their standing, honour and integrity, into
public scandal, odium and contempt. Thirdly, the plaintiffs had
sufficiently demonstrated that the impugned statements had been
published to third parties. Fourthly, the plaintiffs had shown
that by reason of the publication of the impugned statements, the
plaintiffs had suffered grave injury to their trading personality and
irreparable loss and damage and would continue to suffer such
irreparable loss and damage. Fifthly, the court was satisfied that
there had been no improper delay on the part of the plaintiffs in
bringing this application because the existence of the Petronas website
maintained by the defendant was only discovered by the plaintiffs on or
about the end of November 2001 and the defendant’s official response to
the plaintiffs’ solicitors was only received on 5 December 2001.
Finally, the plaintiffs had given an undertaking as to damages and the
court was satisfied that the plaintiffs were in a strong financial
position to meet their undertaking should the defendant win at the
trial (see pp 240I –241F, 242E –F, H–243B).
[*219]
(4)   By registering the said domain names which contained the word ‘Petronas’
, there was a serious issue to be tried in that the defendant was
making a false representation to persons who may have consulted the
register that the registrant, ‘Araneum Consulting Services’ was
connected or associated with the name registered and thus the owner of
the goodwill in the name ‘Petronas’. By registering the said domain
names, the defendant had eroded the exclusive goodwill in the name ‘
Petronas’ which had cause damage to the plaintiffs. The said domain
names were instruments of fraud and any realistic use of them as domain
names would result in passing off. This would cause irreparable injury
and damage to the plaintiffs and by virtue of this, the balance of
convenience tilted in favour of the plaintiffs. The plaintiffs had
sufficiently demonstrated that since the said domain names contained
the word ‘Petronas’, the court can assume that the intention of the
defendant in using the said domain names was to deceive the public by
passing off himself as part of the Petronas group of companies or his
business or products as those of the plaintiffs’. In the circumstances,
the plaintiffs had shown that there was a threat of passing off and
trademark infringement on the defendant’s part which was likely to
cause confusion in the minds of consumers of the plaintiffs’ products,
thereby resulting in irreparable injury and damage to the plaintiffs’
trade, business and goodwill. Therefore, as the plaintiffs had provided
an undertaking as to damages, the interim injunction sought for ought
to be granted (see p 246B –H); British Telecommunications plc and
another v One In A Million Ltd and others and other actions
[1998]
4 All ER 476 followed.

Bahasa Malaysia summary
Plaintif pertama adalah satu perbadanan petroleum nasional yang terkenal. Plaintif kedua merupakan salah satu cabang pemasaran plaintif pertama dan plaintif ketiga merupakan satu perniagaan memproses dan mengalirkan gas semulajadi dan ia mengendalikan perniagaan gasnya di bawah nama dagangan ‘Petronas Gas’. Defendan adalah seorang individu yang menjalankan operasi-operasi dagangan sebagai seorang tuanpunya tunggal berdaftar di bawah nama dagangan/perniagaan ‘Araneum Consulting Services’ dan tiada  kaitan langsing dengan plaintif-plaintif. Sekitar tahun 2001, plaintif-plaintif telah membuat rangkaian carian ke atas nama-nama domain dalam internet dengan menggunakan enjin carian ‘better-whois.com’ dan mendapati bahawa defendan mempunyai nama-nama domain berdaftar ‘petronas-dagangan.com’, ‘petronasgas.com’, ‘mypetronasdagangan.com’ dan ‘mypetronas.com’ (‘nama-nama domain tersebut’) bagi tujuan jualan. Defendan juga menyenggarakan satu laman web di bawah nama ‘www.petronasgas.com’ (‘laman web Petronas tersebut’) yang bertujuan memberikan maklumat tentang, antara lain, tempat stesen-stesen khidmat plaintif-plaintif. Cetakan  [*220] laman web utama kepada laman web Petronas tersebut menunjukkan bahawa ia diselenggarakan oleh defendan. Laman web Petronas tersebut juga boleh dimasuki melalui ‘URL HTTP://www.searchmalaysia.com’ (‘laman web searchmalaysia tersebut’). Pada laman web searchmalaysia tersebut, nama-nama domain ‘petronasgas.com’ digambarkan sebagai satu anak syarikat ‘searchmalaysia. com’. Sebagai membalas permintaan dari plaintif kepada defendan untuk memindahkan kepada plaintif pertama nama-nama domain tersebut atas alasan bahawa ‘Petronas’ merupakan nama dagangan pertama seluruh dunia plaintif dan hak-hak harta intelektual dalam nama dagangan tersebut terletak pada plaintif pertama, defendan telah menerbitkan kenyataan-kenyataan tertentu melalui e-mel (‘kenyataan-kenyataan yang dipersoalkan’) yang plaintif-plaintif mengegaskan dengan jelas merujuk kepada plaintif-plaintif dan adalah berunsur fitnah. Dalam permohonan ini, plaintif-plaintif telah memohon relief-relief berikut atas alasan kelirupaan nama-nama domain dan fitnah: (a) satu injunksi interim inter partes untuk menyekat defendan dari: (i) kelirupaan atau cubaan untuk mengekelirupakan apa-apa laman web dengan suatu nama domain yang mengandungi nama ‘Petronas’ yang tiada kaitan dengan satu laman web yang berkaitan dengan plaintif-plaintif; (ii) membuat apa-apa representasi kepada mana-mana pendaftar nama-nama domain bahawa defendan mempunyai kaitan atau hubungan dengan plaintif-plaintif dan/atau nama ‘Petronas’ dan nama baik yang wujud; dan (iii) mendaftar atau cuba untuk mendaftar dalam internet apa-apa nama domain yang mengandungi perkataan ‘Petronas’; dan (b) satu injunksi interim inter partes untuk menyekat defendan dari menerbit atau mempos atau mengedarkan kenyataan-kenyataan yang dipersoalkan tersebut.

Diputuskan, membenarkan permohonan plaintif:
(1)   Plaintif-plaintif telah menunjukkan bahawa nama dalam alamat e-mel
tersebut adalah alamat defendan dan bahawa defendan adalah tuanpunya
tunggal Araneum Consulting Services dan bahawa kedua-dua laman web
tersebut dikendalikan oleh Araneum Consulting Services. Carian-carian
yang dijalankan oleh plaintif-plaintif ke atas nama-nama domain
tersebut menunjukkan bahawa pendaftar-pendaftarnya adalah defendan,
Araneum Consulting Services dan ‘Araneum@email.com for sales’. Tambahan
pula, e-mel yang menjelikkan tersebut juuga mempunyai nombor telefon
bimbit defendan. Dalam keadaan kes ini, mahkamah lebih dari berpuashati
bahawa ia adalah berkemungkinan besar defendan yang menghantar e-mel
tersebut  dan yang telah memulakan halaman web tersebut dan ia diikuti,
oleh demikian, bahawa plaintif-plaintif telah dengan memadai
mengenalpasti defendan bagi tujuan relief injunksi yang dipohon oleh
plaintif-plaintif dalam permohonan ini (lihat ms 233A –B, 235F, 236G –H).
[*221]
(2)   Ia tidaklah mandatori untuk plaintif-plaintif mengekshibitkan satu
sijil menurut s 90A Akta Keterangan 1950 (‘Akta tersebut’) berhubung
ccetakan-cetakan komputer yang mengandungi kenyataan-kenyataan yang
dipersoalkan tersebut dalam afidavit sokongan permohonan mereka untuk
injunksi-injunksi interim tersebut. Ini adalah kerana di peringkat
prosiding ini, plaintif-plaintif hanya perlu menunjukkan satu kes bona
fide atau satu persoalan serius yang perlu dibicarakan dan tiada
keperluan untuk menunjukkan satu kes prima facie. Deponen kepada
afidavit sokongan plaintif telah mendeposkan bahawa isi kandungan
afidavit tersebut adalah dalam pengetahuan peribadinya kecuali
dinyatakan sebaliknya. Defendan tidak mencabar maupun mempertikaikan
afidavit jawapan deponen. Plaintif-plaintif hanya perlu menenderkan
sijil s 90A jika plaintif-plaintif tidak berhasrat untuk memanggil
pegawai yang mempunyai pengetahuan peribadi tersebut berhubung
penghasilan cetakan-cetakan komputer oleh komputer untuk memberi
keterangan mengenainya dalam perbicaraan sebenar (lihat ms 236H –I, 237F –
H).
(3)   Kenyataan-kenyataan yang dipersoalkan tersebut memang berunsur fitnah.
Plaintif-plaintif telah menunjukkan bahawa maksud semulajadi dan biasa
kenyataan-kenyataan yang dipersoalkan tersebut adalah bahawa: (a)
plaintif-plaintif tidak mempunyai hak yang sah ke atas mana-mana nama
domain yang mengandungi perkataan ‘Petronas’; (b) menjadi amalan
plaintif-plaintif menggunakan taktik-taktik kekerasan untuk menindas
dan menakut-nakutkan syarikat-syarikat tempatan dan/atau entiti-entiti
perniagaan tempatan yang lain; (c) plaintif-plaintif cuba atau sebelum
ini pernah mencuba untuk memeras wang daripada syarikat-syarikat
tempatan atau entiti-entiti perniagaan dengan memaksa mereka
memindahkan nama-nama domain kepada plaintif-plaintif dengan percuma;
(d) plaintif-plaintif sentiasa bersikap angkuh atau melakukan perbuatan
menindas yang begitu angkuh untuk menindas atau menakut-nakutkan
syarikat-syarikat tempatan dan/atau entiti-entiti tempatan; (e)
plaintif-plaintif telah bertindak seperti ‘robber’ dan
tindakan-tindakan mereka boleh disifatkan sebagai membentuk pencurian;
dan (f) jabatan perkhidmatan undang-undang plaintif-plaintif secara
amnya tidak kompeten dan/atau bersikap tidak tahu. Kedua,
plaintif-plaintif telah menunjukkan bahawa kenyataan-kenyataan yang
dipersoalkan tersebut: (a) dikira akan menjejaskan reputasi
plaintif-plaintif dengan mendedahkan mereka kepada kebencian,
penghinaan atau cemuhan; (b) bertujuan untuk merendah-rendahkan
plaintif-plaintif pada anggapan masyarakat umum yang waras; (c) dikira
untuk menjejas dan merendah-rendahkan reputasi plaintif-plaintif dalam
jawatan, profesion dan dagangan plaintif-plaintif; dan (d) bertujuan
untuk menjatuhkan plaintif-plaintif, menurut kedudukan, maruah dan
integriti plaintif-plaintif, ke dalam skandal awam, rasa benci dan
penghinaan. Ketiga, plaintif-  [*222] plaintif telah menunjukkan
dengan memadai bahawa kenyataan-kenyataan yang dipersoalkan tersebut
telah diterbitkan kepada pihak-pihak ketiga. Keempat, plaintif-plaintif
telah menunjukkan bahawa oleh sebab penerbitan kenyataan-kenyataan yang
dipersoalkan tersebut, plaintif-plainti telah mengalami kerosakan pada
personaliti dagangan dan kerugian yang tidak boleh diperbaiki dan akan
berterusan mengalami kerugian dan kerosakan yang tidak boleh
dipulihkan. Kelima, mahkamah berpuashati bahawa tiada kelewatan yang
tidak betul berlaku di pihak plaintif-plaintif dengan memulakan
permohonan ini kerana kewujudan laman web Petronas yang diselenggarakan
oleh defendan hanya diketahui oleh plantif-plaintif pada atau akhir
bulan November 2001 dan jawapan rasmi defendan kepada
peguamcara-peguamcara plaintif-plaintif hanya diterima pada 5 Disember
2001. Akhirnya, plaintif-plaintif telah memberikan satu akujanji
berhubung ganti rugi dan mahkamah berpuashati bahawa plaintif-plaintif
mempunyai kemampuan kewangan yang kukuhs untuk memenuhi akujanji mereka
sekiranya defendan berjaya dalam perbicaraan (lihat ms 240I –241F, 242E –
F, H–243B).
(4)   Dengan mendaftar nama-nama domain yang mengandungi perkataan ‘Petronas’,
terdapat persoalan serius yang perlu dibicarakan di mana defendan
telah membuat representasi yang tidak benar kepada mereka yang pernah
berunding dnegan pendaftar bahawa si pendaftar, ‘Araneum Consulting
Services’ adalah berkaitan atau mempunyai hubungan dengan nama yang
didaftarkan dan oleh itu tuanpunya nama baik dalam nama ‘Petronas’.
Dengan mendaftar nama-nama domain tersebut, defendan telah menghakis
nama baik eksklusif dalam nama ‘Petronas’ yang telah menyebabakan
reputasi plaintif-plaintif terjejas. Nama-nama domain tersebut adalah
unsur-unsur fraud dan apa-apa penggunaan realistiknya sebagai nama-nama
domain akan mengakibatkan kelirupaan. Ini akan menyebabkan kerosakan
dan kerugian yang tidak boleh dipulihkan kepada plaintif-plaintif dan
menurut ini, imbangan kesesuaian berpihak menyebelahi
plaintif-plaintif. Plaintif-plaintif dengan memadai telah menunjukkan
bahawa memendangkan nama-nama domain tersebut mengandungi perkataan ‘
Petronas’, mahkamah boleh mengandaikan bahaw niat defendan untuk
menggunakan nama-nama domain tersebutadalah untuk memperdayakan orang
awam dengan mengelirupakan dirinya sebagai sebahagian dari kumpulan
syarikat Petronas atau perniagaan atau produk-produknya sebagai
perniagaan atau produk-produk plaintif-plaintif. Dalam keadaan ini,
plaintif-plaintif telah menunjukkan bahawa terdapat ugutan kelirupaan
dan pelanggaran tanda dagangan di pihak defendan yang berkemugkinan
menyebabkan kekeliruan pada pemikiran pengguna produk-produk
plaintif-plaintif, yang akan mengakibatkan kerosakan dan kerugian yang
tidak boleh dipulihkan kepada dagangan, perniagaan dan nama   baik
plaintif-plaintif. Oleh itu, memandangkan plaintif-plaintif telah
memberikan akujanji berhubung ganti rugi, injunksi   interim yang
dipohon sepatutnya diberikan (lihat ms 246B –H); British
Telecommunications plc and another v One In A Million Ltd and others
and other actions
[1998] 4 All ER 476 diikut.]

Notes
For cases on documentary evidence of computer printouts, see 7(2) Mallal’s Digest (4th Ed, 2003 Reissue) paras 1104–1112.
For cases on libel, see 12 Mallal’s Digest (4th Ed, 2002 Reissue) paras 314–434.
For cases on passing off, name of business, see 12 Mallal’s Digest (4th Ed, 2002 Reissue) para 1421.
For cases on the proper parties to be sued, see 2(3) Mallal’s Digest (4th Ed, 2001 Reissue) paras 4322–4328.

Cases referred to
Alor Janggus Soon Seng Trading Sdn Bhd & Or v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241
American Cyanamid v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504
Bonnard v Perryman [1891] 2 Ch 269
British Telecommunications plc and another v One In A Million Ltd and others and other actions [1998] 4 All ER 476
Company of Proprietors of Selby Bridge Ltd v Sunday Telegraph Ltd (1966) 197 Estates Gazette 1077
D and L Caterers Ltd and Jackson v D’Ajou [1945] KB 3649; [1945] 1 All ER 563
Directors of Imperial Gas Light and Coke Co v Broadbent (1859) 7 HL Cas 600
Fullwood v Fullwood (1878) 9 Ch D 176
Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1
Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193
Leather Cloth Co Ltd v American Leather Cloth Co Ltd (1865) 11 HL Cas 523
Lewis v Daily Telegraph Ltd, Lewis v Associated Newspapers Ltd [1963] 2 All ER 151
Linotype Co Ltd v British Empire Type-Setting Machine Co Ltd (1899) 81 LT 331
Lyan v Lipton (1914) 49 L Jo 542
Magnolia Metal Co v Tandem Smelting Syndicate Ltd (1900) 17 RPC 477
Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87
Martin v Price [1894] 1 Ch 276
New Straits Times Press (M) Bhd, The v Airasia Bhd [1987] 1 MLJ 36
Potts v Leyy (1854) 2 Drew 272
[*223]
Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] 1 Ch 149; [1953] 1 All ER 179
Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 Ch D 501
Rubber Improvement Ltd v Daily Telegraph Ltd, Rubber Improvement Ltd v Associated Newspapers Ltd [1964] AC 234
Spottiswoode v Clark (1846) 2 Ch 154
Takenaka (United Kingdom) Ltd and Anor v Frankl [2001] EWCA CIV 348
Slazengers Ltd v C Gibbs & Co (1916) 33 TLR 35
South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133
Spalding & Bros v AW Gamage Ltd (1915) 84 LJ Ch 449
Standard Chartered Bank v Mukah Singh [1996] 3 MLJ 240
United States v Smith 918 F 2d 1501
USA v Siddiqui US 11th Circuit Court of Appeals No 98-6994
Williams v Beaumont (1833) 10 Bing 260
Wood v Conway Coon [1914] 2 Ch 47

Legislation referred to
Companies Act 1965
Evidence Act 1952 ss 62 explanation 3, 90A, 90B
Federal Rules of Evidence [US] ss 901(a), (b)(4)
Petroleum Development Act 1974 s 3(1)

Tai Foong Lam (Lee Hishammuddin) for the plaintiff.
Ravin Vello (Lee Khai with him) (Tasn Beng Hong) for the defendant.

Su Geok Yiam JC::

[1] This is an application vide a summons in chambers (encl 3) by the plaintiffs for inter partes interlocutory injunctions to restrain the defendant and his agents from doing certain acts in relation to any domain name which contains the word ‘PETRONAS’ and to compel the defendant to transfer the domain name petronasgas.com to the plaintiffs.

[2] It was filed on 7 December 2001 together with a certificate of urgency (encl 4). It is supported by the plaintiffs’ affidavit affirmed by Zainalabidin bin Ismail, the General Manager (Legal) of the first plaintiff’s Corporate and Technology division on 6 December 2001 (encl 2).

Facts and background

[3] The facts and background of the case are as follows.

[4] The first plaintiff is Malaysia’s well-known national petroleum corporation. It is a fully integrated oil and gas entity engaged in a broad spectrum of petroleum and related value adding business activities ranging from upstream exploration and production of oil and gas to downstream oil refining; marketing and distribution of petroleum products; the operation and management of petrol service stations and the sale of lubricants; trading of oil and gas products; gas processing and liquefaction; gas transmission pipeline network operation; marketing of liquefied natural gas processing  [*224] and liquefaction; gas transmission pipeline network operation; marketing of liquefied natural gas and liquefied petroleum gas; petrochemical manufacturing and marketing; and shipping.

[5] The first plaintiff was incorporated on 17 August 1974 under the Companies Act 1965. Pursuant to the Petroleum Development Act 1974 (‘PDA’) it is statutorily vested with the administration and stewardship of the entire oil and gas resources in Malaysia. Section 3(1) of the PDA also statutorily confers on the first plaintiff the acronym ‘PETRONAS’. The first plaintiff holds a position of high standing amongst the Malaysian public.

[6] The second and third plaintiffs are public listed companies on the Main Board of the Kuala Lumpur Stock Exchange.

[7] The second plaintiff is one of the marketing arms of the first plaintiff and interfaces with the end users and customers of PETRONAS products. it is responsible for the sale of PETRONAS products such as motor gasoline, diesel, lubricant, aviation and bunker fuel, liquefied petroleum gas (LPG) and kerosene to the general public in Malaysia. It operates an extensive network of more than 500 service stations in Malaysia under the trade name ‘PETRONAS’ in both urban and rural areas. Apart from selling gasoline and petroleum products these stations also sell car care products and other goods and services to motorists and other classes of consumers in Malaysia. Eighteen of these PETRONAS service stations are also equipped with facilities for the dispensation of natural gas for vehicles (NGV).

[8] The second plaintiff also operates plants for the bottling of liquefied petroleum gas (LPG) into metal cylinders for household and industrial use. These LPG filled metal cylinders are marketed under the trade name ‘PETRONAS’ and bear the words ‘GAS PETRONAS’ on each cylinder. These cylinders provide a source of cooking gas and are widely used in homes, restaurants, shops and stalls throughout Malaysia. Due to the long and extensive use of the trade mark ‘PETRONAS’ at service stations dispensing gasoline to motorists in villages, towns, cities and all along the main highways linking the north and south of Peninsular Malaysia and the sale of PETRONAS cooking gas in metal cylinders to millions of households and other premises throughout Malaysia, the Malaysian public has come to associate the name ‘PETRONAS’ in respect of gasoline and gas with the second plaintiff.

[9] The third plaintiff is one of the pioneers of the Malaysian gas industry. It is in the business of processing and transmitting natural gas. It conducts its gas business under the trade name ‘PETRONAS GAS’. Due to the long and extensive use of the trade mark ‘PETRONAS GAS’ in connection with the supply of gas to industrial consumers, the third plaintiff has acquired very substantial goodwill and reputation amongst the relevant trade and public and is well known by its trade name ‘PETRONAS GAS’. It has been supplying gas to the various industrial consumers since 1984 and has expanded its operations across the whole of Peninsular Malaysia and into Singapore through a network of trans-peninsular pipelines and gas processing plants.

[*225]

The plaintiffs’ case

[10] As a result of the above the first, second and third plaintiffs have acquired substantial goodwill- and reputation in the name ‘PETRONAS’ both locally, among the general public and the relevant trading fraternity, and also internationally. The name ‘PETRONAS’ is distinctive of them and/or their products and services owing to long and extensive use of the name ‘PETRONAS’ in connection with all their commercial activities for almost three decades.

[11] The defendant is an individual carrying out trading operations as a registered sole proprietor under the trade/business name ‘Araneum Consulting Services’. He has his residential address at No 283, Jalan New Village, Gersik, Muar 84700 Johor Darul Takzim and his business address at 3-11-12, Desa Bistari 2, Lintang Pantai Jerjak, Gelugor, Pulau Pinang, 11700 Penang. He is in no way associated with the plaintifffs.

[12] Sometime in the year 200 1, the plaintiff made a series of searches of domain names in the internet using the search engine better-whois.com and discovered that the defendant has registered the following domain names:

(1)   ‘petronas-dagangan.com’;

(2)   ‘petronasgas.com’;

(3)   ‘mypetronasdagangan.com’and

(4)   ‘mypetronas.com’

[13] (‘the said domain names’)

[14] which contain the word ‘PETRONAS’ for purposes of sale as shown by the defendant having chosen the name ARANEUM@EMAIL.COM DOMAIN FOR SALES in order to register the said domain names.

[15] The defendant has also maintained a website under the name ‘www.petronasgas.com’ (‘the website’) which purports to provide information on the locality of the plaintiffs’ service stations and the plaintiffs’ three phase Peninsular Gas Utilisation (PGU) Project. A printout of the main webpage of the website as at 20 November 2001 shows that the website is maintained by the defendant and is called Search Malaysia. The website is also accessible via URL HTTP://www. searchmalaysia.com’. On the website, the domain name ‘petronasgas.com’ is described as a subsidiary of ‘searchmalaysia. com’.

[16] In so doing, the defendant has misrepresented to the relevant trade and public that the websites operated by the defendant under or linked to domain names incorporating the name ‘PETRONAS’ are maintained or authorized by and/or connected to the plaintiffs, that the defendant and his business are connected to or associated with the plaintiffs and/or that the products and the services of the defendant are connected to or associated with the products and services of the plaintiffs or alternatively originate from or are those of the plaintiffs, resulting in confusion and deception amongst the relevant trade and public and the plaintiffs have suffered damage as a consequence.

[*226]

[17] Furthermore, in response to a request dated 16 November 2001 from the first plaintiff to the defendant to transfer to the first plaintiff the registration of the said domain names incorporating the name ‘PETRONAS’ registered by the defendant on the ground that ‘PETRONAS’ is the first plaintiffs trade name worldwide and the name ‘PETRONAS’ is actually the shortened version for ‘PETROLEUM NASIONAL BERHAD’ and the intellectual property rights in the trade-name belong to the first plaintiff, the defendant published certain statements (‘the impugned statements’) which the plaintiffs aver clearly refer to the plaintiffs and are defamatory, given their ordinary and natural meaning. The plaintiffs also aver that the defendant must be restrained on an urgent basis from further passing off the name of the plaintiffs and further publishing or repeating the impugned statements on the internet or elsewhere in view of the irreparable harm suffered or likely to be suffered by the plaintiffs which could not be compensated in the form of damages.

[18] On 6 December 2001, the plaintiffs filed a writ of summons and statement of claim (encl (1)) against the defendant seeking permanent injunctions against the defendant and damages for passing-off and defamation.

Ex parte injunctions

[19] On 11 December 2001, Md Raus J granted to the plaintiffs the ex parte injunctions sought by the plaintiffs in respect of paras (1), (2) and (4) of the plaintiffs’ application.

[20] On 14 December 2001, a copy each of the writ of summons and statement of claim, the plaintiffs’ application for ex parte injunctions and affidavit-in-­support, the ex parte order and a covering letter were served personally on the defendant.

Plaintiffs’ application

[21] In this application, the plaintiffs are seeking the following reliefs on the grounds of passing off of domain names and defamation:

(1)   an inter partes interim injunction to restrain the defendant from doing
the following acts:

(a)   passing off or attempting to pass off any website with a domain
name comprising the word ‘PETRONAS’ which is not related to a
website connected with the plaintiffs;

(b)   making any representation to any registrar of domain names that
the defendant is connected or associated with the plaintiffs
and/or the name ‘PETRONAS’ and the goodwill subsisting therein;
and

(c)   registering or attempting to register on the internet any domain
name containing the word ‘PETRONAS’;

(2)   an inter partes interim injunction to restrain the defendant from
publishing or posting or disseminating the impugned statements;

[*227]

(3)   an inter partes interim mandatory injunction compelling the defendant
to take the necessary steps to procure the transfer of the registration
of the domain name ‘petronasgas.com’ to the plaintiffs within 14 days
of the date of the order of court and not to procure the transfer of
the same to any third party; and

(4)   costs in the cause.

The defendant’s case

[22] On 28 December 2001, the defendant filed his affidavit-in-reply.

[23] The defendant expressly states that he is Khoo Nee Kiong and he resides at 283, Jalan New Village, Gersik, Muar, 84700 Johor Darul Takzim. The defendant does not deny that he is the sole proprietor of Araneum Consulting Services. However, he denies that he has a trading address at 3-11-12, Desa Bistari 2, Lintang Pantai Jerjak, Gelugor, Pulau Pinang, 11700 Penang, that he is the owner of the domain names ‘mypetronasdagangan.com’ and ‘petronasdagangan.com’, that he has set up the impugned web page and that he is in charge of the website. The plaintiffs have not succeeded in showing the connection between www.mypetronas.com. and searchmalaysia.com. The defendant states that the e-mail address is not his. He also denies sending the e-mail containing the offensive statements and receiving the plaintiffs’ e-mail. The defendant further denies that he is a cyber squatter.

[24] Although the defendant does not dispute that the first plaintiff is the owner of the local domain name ‘www.petronas.com.my’ as it has been registered with MYNIC, a subsidiary of MIMOS Berhad, the defendant contends that the first plaintiff is not the holder of the registered trademark ‘PETRONAS’ in America as the domain names ‘petronas.com’ and ‘petronas.net’ are registered with Network Solutions Inc, the accredited registrar with ICANN, which has its address at 4676, Admiralty Way, Suite 330, Marina del Ray, Suite CA 902926601 USA. This contention of the defendant is based on information obtained from a search conducted at the official website of ICANN, namely, ‘www.icann.org.’. The defendant also contends that better­whois.com is not the accredited registrar for ICANN and the information supplied by it is on as ‘as is’ basis and its accuracy is, therefore, not guaranteed.

[25] Neither is it reliable. Concerning the e-mail, they could be created and sent by mischief makers. Additionally, as the e-mail were not accompanied by a digital signature their contents including the name of the sender could be altered during transmission and at anytime thereafter.

Plaintiffs’ affidavit-in-reply

[26] On 7 January 2002, the plaintiffs filed their affidavit-in-reply (encl (10)) affirmed on 31 December 2001 by Zainalabidin bin Ismail to the defendant’s affidavit-in-reply.

[27] The plaintiffs assert that the defendant’s denials that he owns the website www.petronasgas.com at URL://128.241.196.124/petronasgas/,  [*228] that there is a connection between the website and www.searchmalaysia.com and that the website www.search malaysia.com is owned by him is not credible in view of the contents of the plaintiffs’affidavit-in-support.

[28] Furthermore, the webpage ‘about us’ printed out from the website www.searchmalaysia.com state that the website is the initiative of Araneum Consulting Services Sdn Bhd and that it was launched on 1 April 2000. The mailing address is also stated, namely, Araneum Consulting Services, 3-11-12, Desa Bistari 2, Lintang Pantai Jerjak, Gelugor 11700, Penang. It also states that the website can be reached at its e-mail address of searchmalaysia@yahoo.com.

[29] Subsequently, however, these webpages have been changed. Prior to the change, the plaintiffs had made a search on the website using the search engine ‘Wayback Machine’ on an internet archive known as ‘Internet Archive’.

[30] In conclusion, the plaintiffs prayed for order in terms of their application for the inter partes injunctions on the ground that in view of the evidence adduced by the plaintiffs and exhibited in the plaintiffs’ affidavit-in-­support, the defendant’s denials are bare denials.

Interim consent order

[31] On 2 January 2002, Mohd Noor Abdullah J recorded an interim consent order for the interim injunctions to continue pending the disposal of the plaintiffs’ application on an inter partes basis.

Decision of the court

[32] On 26 February 2003, having considered the plaintiffs’ application in the light of the submissions of and authorities cited by both the learned counsels I granted order in terms of paras (1) and (2) of the plaintiffs application for prohibitory orders with costs in the cause (‘the said order’). I made no order in respect of para (3) of the plaintiffs application for a mandatory injunction as events had overtaken the plaintiffs’ application. The events are that since the filing of the application by the plaintiffs in the instant case, the plaintiffs had filed a complaint with WIPO on 26 July 2002 concerning the dispute regarding the domain name ‘petronasgas.com’ and in September/October 2002 WIPO decided that the domain name be transferred to the first plaintiff. Therefore, para (3) of the plaintiffs’ application for a mandatory order for the transfer to the defendant of the domain name ‘petronasgas.com’ had ceased to be relevant.

Issues

[33] In making the said order, I had to consider the following issues which had arisen for the determination of the court:

(1)   whether the identity of the sender of the e-mail, the author of the
webpage and the operator of the website has been sufficiently
established;

[*229]

(2)   whether it is mandatory for the plaintiffs to exhibit a certificate
pursuant to s 90A of the Evidence Act 1952 in respect of the computer
printouts containing the impugned statements;

(3)   whether the impugned statements are manifestly defamatory and if so,
whether an interlocutory injunction should be granted to restrain their
further publication by the defendant; and

(4)   whether the impugned statements constitute passing off and if so,
whether an interlocutory injunction should be granted to restrain
further passing off by the defendant.

The internet and domain name

[34] Before giving the reasons why I made the said order, I shall reproduce below the following description of the internet by Rahul Matthan in his book on The Law Relating to Computer and the Internet published in 2000 by Butterworth India New Delhi, at pp 57–59:

The internet is a giant network of individual computers which are
interconnected through a complicated structure of servers and designed
to withstand a nuclear attack. From its inception, the network was
designed to be a decentralized, self-maintaining series of links
between computers and–computer networks, capable of rapidly
transmitting communications without any direct human involvement or
control. Further, the system was specifically designed to automatically
re-route communications, if one or more individual links were damaged
or unavailable. Thus, the system of linked computers was designed to
allow vital research and communications to continue, even if some
portions of the network were damaged as a result of enemy aggression or
war.

To achieve this type of resilience in the communication medium, the
creation of multiple links to and from each computer (or computer
network) on the network was encouraged. Thus, a computer located in one
location, may be linked through dedicated telephone lines to other
computers in other locations. Each of those computers could in turn be
linked to other computers, which themselves would be linked to several
other computers. Thus, a communication sent over the network could
travel over any one of a number of routes to its destination. If the
network finds that the message cannot for any reason, travel along a
particular path (because of military attack, technical glitch, or any
other reason), the network is configured to automatically re-route the
message through a different feasible route. This type of transmission
and re-routing, would normally occur in a matter of seconds.

As a result of this type of structure, the fact of the matter is that
no single entity is responsible or even capable of managing or
regulating the internet. It exists and functions as a result of the
fact that hundreds of thousands of separate operators of computers and
computer networks, independently decided to use common data transfer
protocols, to exchange communications and information with other
computers (which in turn exchange communications and information with
still more computers). There is no centralized storage location,
control point, or communication channel for the internet, and it would
not be technically feasible for a single entity to control all the
information conveyed on the internet.

It is also pertinent to note that there is relatively no regulation as
to the type of persons who are permitted to access the internet. Thus,
internet access is  [*230] normally freely available to students
and members of educational institutions, while there are a host of
commercial internet service providers who allow subscribers to access
the internet for a fee. In India, the Videsh Sanchar Nigam Limited and
various private Internet Service Providers provide Internet access
through a number of schemes and without any restriction on the nature
of persons permitted to avail of the service.

Once an individual has access to the internet, he/she can use a variety
of services such as FTP (File Transfer Protocol), Telnet, email and the
World Wide Web to receive and transfer information. Given the nature of
the internet, none of these activities regarding the posting or receipt
of information can be successfully regulated. Thus, anyone of the users
of the internet can post information on the internet which could,
theoretically, be accessible by every single person logging on to the
internet, without any government or other entity being in a position to
prevent him/her from doing so.

[35] I also reproduce below the following excerpt from the judgment of Aldous LJ in British Telecommunications plc and another v One In A Million Ltd and others and other actions [1998] 4 All ER 476 at pp 480-481 which explains in very simple terms what is the internet and which also adopts the explanation by the learned trial judge, Jonathan Sumption QC sitting as a deputy judge of the High Court on what is a domain name:

At its simplest the internet is a collection of computers which are
connected through the telephone network to communicate with each other.
As explained by the judge ([1998] FSR 265 at p 267):

‘The internet is increasingly used by commercial organisations to
promote themselves and their products and in some cases to buy
and sell. For these purposes they need a domain name identifying
the computer which they are using. A domain name comprises groups
of alphanumeric characters separated by dots. A first group
commonly comprises the name of the enterprise or a brand name or
trading name associated with it, followed by a ‘top level’ name
identifying the nature and sometimes the location of the
organisation. Marks & Spencer, for example, have a number of
domain names, including marks-and-spencer.co.uk,
marks-and-spencer.com and stimichael.com. The domain name
marks-and-spencer.co.uk, for example, will enable them to
have an e-mail address in the form johnsmith@marks-and-spencer.
co
.uk and a web site address in the form http://www.
marks-and-spencer.co.uk
. The top level suffix co.uk indicates a
United Kingdom company. Other top level names -bear conventional
meanings as follows:

• com International commercial organtisations

• edu Educational organisation

• gov Government organiation

• org Miscellaneous organisations

There is an argument, which does not matter, about whether this
last designation is confined to non-profit-making organisations.
There is no central authority regulating the internet, which is
almost entirely governed by convention. But registration services
in respect of domain names are provided by a number of
organisations. Network Solutions Inc of Virginia in the United
States is the organisation generally recognized as responsible
for allocating domain names with the top level suffixes
[*231] ‘com’ and ‘edu’. In the United Kingdom a company
called Nominet UK provides a registration service in respect of
domain names ending with the geographical suffix uk preceded by
functional suffixes such as co, org. gov or edu.’

Nominet UK applied to intervene in this appeal. It is a ‘not for profit’
limited company, which is registered with the Internet Assigned
Numbers Authority. It operates what is known as the Register Database,
which contains the domain names and IP addresses for co.uk, net.uk, ltd.
uk and plc.uk and full details of the registrant of the domain name and
its registration agent. It charges a fee for its service. From time to
time (eg every two hours or so) the information on the database is
extracted to a number of domain name servers. Domain name servers are
computers which hold the index of names which map to particular numbers
used in intercomputer transactions. For example, if I wanted to contact
Marks & Spencer plc, I can use the domain name marks-and spencer.co.
uk. The domain name server will recognize the domain name and provide
the appropriate sequence of numbers, called the IP address. It is that
address which identifies the computer owned by Marks & Spencer plc,
thereby enabling my computer to contact that owned by Marks &
Spencer plc.

As part of its service Nominet offers a ‘Whois’ service to the public.
Thus the public can type in a domain name on Nominet’s website and
press the appropriate button to execute the ‘Whois’ search. The answer
sets out the recorded information on the organisation or person who has
registered the domain name. This is useful if, for example, a person
wishes to contact the owner of a domain name.

Members of the public would not ordinarily have a domain name. They
would subscribe to a service provider and have an e-mail address. That
enables a subscriber to send a message to another computer through the
service provider, which forwards the message when requested to the
appropriate computer. The subscriber can also browse around the world
wide web and seek web pages associated with a particular domain name.
Thus if he transmits a domain name to his service provider, it will
contact the domain name and the web pages sought and provide the
information obtained.

Web sites are used for many activities such as advertising, selling,
requesting information, criticism and the promotion of hobbies.

Identifying the defendant

[36] The defendant has relied on the case of Takenaka (United Kingdom) Ltd and Anor v Frankl unreported, QB, Alliot J 11 October 2000 upheld on appeal [2001] EWCA CIV 348 to support his contention that the plaintiffs here should have obtained disclosure orders in the nature of a Norwich Pharmacal order against various internet service providers to ascertain the identity of the sender of the e-mail before suing the defendant as the defendant has denied that he is the sender of the e-mail or that he is in any way connected with the website and webpage containing the impugned statements.

[37] In that case, the defendant steadfastly denied that he was the author of the defamatory e-mail in question. In the course of identifying the defendant to enable it to commence proceedings, the claimants obtained disclosure orders against various internet service providers. Nevertheless, the decision in that case does not favour the defendant here because in that case although the court also appointed an expert who conducted a detailed  [*232] forensic examination of the computer, ultimately the expert delivered an opinion that the e-mail had been sent by the defendant. The court accepted    his opinion and liability was established against the defendant in that case.

[38] In my judgment, the plaintiffs have shown that the name in the e-mail address is that of the defendant, that the defendant is the sole proprietor of Araneum Consulting Services and that both the websites are operated by Araneum Consulting Services. From the search conducted by the plaintiffs on the Registrar of Businesses, the business of Araneum Consulting Services is that of ‘Management consultant, commission agent, internet home page design consultant, quality, productivity and manufacturing consultant’.

[39] It follows that the defendant is not a stranger to the internet, nor the webpages and websites in the internet. More importantly, using the search engine Better-whois.com which is a more reliable search engine than its predecessor Whois.com the search conducted by the plaintiffs on the domain name ‘petronasgas.com’ clearly shows as follows:

Registrant:

Araneum Consulting Services

283 Jalan Gelugor, Penang 11700 MY

Registrar: Dotster (http://www.doster.com)

Domain Name: PETRONASGAS.COM

Created on: 06-NOV-01

Expires on: 06-NOV-02

Last Updated on: 06-NOV-0 1

Administrative Contact:

Khoo, nk Khoo @ searchmalaysia.com

Araneum Consulting Services

3-11-12 Desa Bistari 2,

Lintang Pantai Jerjak,

Gelugor, Penang 11700

MY

6017-4772401

Technical Contact:

khoo, nk khoo @ searchmalaysia.com

Araneum Consulting Services

3-11-12 Desa Bistari 2

Lintang Pantai Jerjak,

Gelugor, Penang 11700

MY

6017-4772401.

[40] A similar search conducted on the domain name ‘mypetronas.com’ clearly shows as follows:

[*233]

Registrant:

NKKHOO (MYPETRONAS2-DOM)

3-11-12, DESA BISTARI 2,

LINTANG PANTAI JERJAK,

GELUGOR, PENANG

PG 11700

MY

MY

Domain Name: PETRONASGAS.COM

Administrative Contact, Billing Contact:

Webmaster, ACS NEE (KNK5) araneum@EMAIL.COM

ARANEUM CONSULTING SERVICES

3-11-12 Desa Bistari II,

Lintang Pantai Jerjak,

Gelugor,

Penang

11700

MY

+604-6552401 8108215318.

[41] Another similar search conducted on the domain name ‘petronas-dagangan.com’ clearly shows as follows:

Registrant:

ARANEUM@EMAIL.COM DOMAIN FOR SALES (PETRONAS-DAGANGAN-COM)

3-11-12, DESA BISTARI II,

LINTANG PANTAI JERJAK,

GELUGOR, PENANG

PG 11700

MY

Domain Name: PETRONASDAGANGAN.COM

Administrative Contact, Billing Contact:

Webmaster, ACS NEE (KNKS) araneum@EMAIL.COM

ARANEUM CONSULTING SERVICES

3-11-12 Desa Bistari II,

Lintang Pantai Jer ak,

Gelugor,

Penang

11700

MY

+604-6552401 8108215318.

[42] A further similar search conducted on the domain name ‘mypetronasdagangan.com’ clearly shows as follows:

[*234]

Registrant:

ARANEUM@EMAIL.COM DOMAIN FOR SALES

(MYPETRONASDAGANGAN-COM)

3-11-12, DESA BISTARI II,

LINTANG PANTAI JERJAK,

GELUGOR,

PENANG

PG 11700

MY

Domain Name: MYPETRONASDAGANGAN.COM

Administrative Contact, Billing Contact:

Webmaster, ACS NEE (KNK5) araneum@ EMAIL.COM

ARANEUM CONSULTING SERVICES

3-11-12 Desa Bistari II,

Lintang Pantai Jerjak,

Gelugor,

Penang

11700

MY

+604-6552401 8108215318.

[43] As some of the domain names containing the word ‘PETRONAS’ are juxtaposed with vulgar and obscene words as set out and repeated in the impugned statements one would have thought that upon these been brought to the knowledge of the defendant he would have taken immediate steps towards establishing the true identity of the sender if it was not himself and to lodge a police report in order to protect himself and the goodwill of his business.

[44] The offensive e-mail also carry the handphone number of the defendant. In a case like the present the defendant cannot just merely sit back and deny that he did not send the offensive e-mail and state that the e­mail address of his company Araneum Consulting Servicse is sales@araneum.com.my. As a reasonable person who is in the business of providing quality and internet consultancy services, he is expected to do more than that. His reply dated 4 December 2001 to the plaintiffs’ letter of 26 November 2001 expresses no shock at its contents. On the contrary, the defendant, although stating that he found the first plaintiffs letter too disturbing to his business activities, merely says, inter alia, as follows:

Araneum Consulting Services has no authorized person to communicate
with your client prior to 28 November 2001. Therefore we would like to
categorically to deny our company had sent out emails or posted any
electronic messages to your client/ICANN/Soc.Culture.
Malaysia/Internet/other medias.

We deem your statements in the letter are baseless accusations without
supported by any concrete evidence. For your reference,- our company
website, www.araneum.com.my has never published any defamatory
statements against anyone. Besides that, we has did not use email to
[*235] communicate with our clients or outsiders or business or
legal matters for the security reason since one year ago.

[45] In his second reply dated 4 December 2001, the defendant has acknowledged receiving one unregistered letter (TFL/SAM/22347/01) dated 26 November 2001 from Lee Hishammuddin on 4 December 2001 addressed to 3-11-12, Desa Bistari 2, Lintang Pantai Jerjak, Gelugor 11700 Penang.

[46] The court also notes that the defendant’s first reply dated 28 November 2001 is a response to the first plaintiffs first letter dated 16 November 2001. It is addressed as follows:

Corporate Services & Technology

Legal & Corporate Affairs Division

Level 68, Tower 1,

Petronas Twin Tower, 50088 Kuala Lumpur

Attn: Encik Zainalabidin Ismail

[47] Although the defendant has disputed in encl (9) that he has a business address at ‘3-11-12 Desa Bistari 2, Lintang Pantai Jerjak, Gelugor 117009 Penang’ (‘the said address’) yet it was indeed strange that he was able to receive the first plaintiff’s first letter dated 16 November 2001 which according to the plaintiffs was sent to the defendant at the said address and which according to the defendant he had collected at the ‘Ibu Pejabat Pos Georgetown’ on 26 November 2001. He has not explained how this could have happened. He has also not explained how he was able to receive the first plaintiffs second letter dated 26 November 2001 which was also addressed to the said address since he has stated in his first affidavit-in-reply that the business address of Araneum Consulting Services is 283, Jalan New Village, Gersik 84700 Muar, Johor.

[48] In his second reply dated 4 December 2001, the defendant has stated that the number 04-6552401 (which bears the area telephone code for Penang) is a home phone number and is entirely used for his personal matters. Yet he has sworn in his affidavit-in­-reply (encl (9)) that his address is 283, Jalan New Village, Gersik, Muar 84700 Johor Darul Takzim (which has a different area telephone code).

[49] Furthermore, he does not even request for a copy of the e-mail and webpage with a view to tracing and ascertaining who could have sent the e-mail and designed the webpage if in fact he had no hand in it. The court finds his response grossly indifferent and unreasonable.

[50] In the circumstances of this case, I am more than satisfied that it was most probably the defendant who had sent the e-mail and who had set up the webpage and it follows, therefore, that the plaintiffs have sufficiently identified the defendant for the purposes of the injunctive relief sought by the plaintiffs in this application.

Section 90A of Evidence Act 1952

[51] Whether it is mandatory for the plaintiffs to exhibit a certificate pursuant to s 90A of the Evidence Act 1952 in respect of the computer printouts containing the impugned statements in its affidavit-in-­support of their application for the interim injunctions?

[*236]

[52] Explanation 3 to s 62 of the Evidence Act 1950 renders a document produced by a computer primary evidence.

[53] Section 90A of the Evidence Act 1952 provides for the admissibility of documents produced by a computer. It reads as follows:

Documents Produced by a Computer

(1) In any criminal or civil proceeding a document produced by a
computer, or a statement contained in such document, shall be
admissible as evidence of any fact stated therein if the document
was produced by the computer in the course of its ordinary use,
whether or not the person tendering the same is the maker of such
document or statement.

(2) For the purposes of this section it may be proved that a
document was produced by a computer in the course of its ordinary
use by tendering to the court a certificate signed by a person
who either before or after the production of the document by the
computer is responsible for the management of the operation of
that computer, or for the conduct of the activities for which
that computer was used.

(3) (a) …

(b) …

(4) …

(5) …

(6) A document produced by a computer, or a statement contained
in such document, shall be admissible in evidence whether or not
it was produced by the computer after the commencement of the
criminal or civil proceeding or after the commencement of any
investigation or inquiry in relation to the criminal or civil
proceeding or such investigation or inquiry, and any document so
produced by a computer shall be deemed to be produced by the
computer in the course of its ordinary use.

(7) …

[54] In my judgement, the above issue should be decided in the negative. The reason is that the plaintiffs need only show a bona fide case serious question to be tried at this stage of the proceedings and there is no necessity for the plaintiffs to show a prima facie case. The deponent of the plaintiffs’ affidavit-in-support, Zainalabidin bin Ismail, has deposed that the contents of the affidavit are within his personal knowledge unless otherwise stated. The defendant has not challenged nor disputed this assertion of Zainalabidin bin Ismail in the defendant’s affidavit-in-reply. Therefore, in my view there is no necessity for the plaintiffs to exhibit a s 90A certificate in his affidavit-in-support of the plaintiffs’ application in respect of the computer printouts containing the impugned statements. The reason is because the plaintiffs need only tender the s 90A certificate if the plaintiffs do not wish to call the officer who has personal knowledge as to the production of the computer printouts by the computer to testify to that effect in the trial proper (see the cases of Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997] 3 MLJ 1 and Standard Chartered Bank v Mukah Singh [1996] 3 MLJ 240).

[55] Section 90B of the Evidence Act 1950 deals with the weight to be given to a document produced by a computer admitted by the court pursuant to s 90A of the Evidence Act 1950. It provides as follows:

[*237]

In estimating the weight, if any, to be attached to a document, or a
statement contained in a document, admitted by virtue of s 90A, the
court —

(a) may draw any reasonable inference from circumstances relating
to the document or the statement, including the manner and
purpose of its creation, or its accuracy or otherwise;

(b) shall have regard to —

(i) the interval of time between the occurrence or
existence of the facts stated in the document or statement,
and the supply of the relevant information or matter into
the computer; and

(ii) whether or not the person who supplies, or any person
concerned with the supply of, such information or the
custody of the document, or the document containing the
statement, had any incentive to conceal or misrepresent all
or any of the facts stated in the document or statement.

[56] The American case of USA v Siddiqui , US 11th Circuit Court of Appeals No 98-6994 which was cited by Mr Ravin Veloo, the learned defence counsel, is illuminating. In that case, one Siddiqui had challenged the district court’s admission into evidence of e-mail on the ground of the government’s failure to show with reliability who sent the e-mail. He claimed that the district court abused its discretion by allowing the government to offer the e-mail into evidence without proper authentication. The Court of Appeals applied s 901(a) and s 901(b)(4) of the Federal Rules of Evidence which provides several general methods of authentication and held that a number of factors supported the authenticity of the e-mail.

[57] Section 901(a) of the Federal Rules of Evidence provides that documents must be properly authenticated as a condition precedent to their admissibility ‘by evidence sufficient to support a finding that the matter in question is what its proponent claims.’ Section 901(b)(4) of the Federal Rules of Evidence further provides that a document may be authenticated by ‘appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.’

[58] It was held in another American case, United States v Smith 918 F 2d 1501, 1510 that the ‘government may authenticate a document solely through the use of circumstantial evidence including the document’s own distinctive characteristics and the circumstances surrounding its discovery.’

[59] Similarly here, in my judgement, the plaintiffs can rely on circumstantial evidence to show that the defendant is the author and sender of the impugned statements contained in the e-mail and web page as the provisions of the Evidence Act 1952 in particular s 62, s 90A, s 90B, and s 3 which defines ‘document’ to include, inter alia, any electronic … data whatsoever can be utilized for this purpose although there is no specific reference to e-mail or webpage or website.

Defamation

[60] In English Law, speaking generally, every man is entitled to his good name and to the esteem in which he is held by others and has a right to claim that his reputation shall not be disparaged by defamatory statements made  [*238] about him to a third person or persons without lawful justification or excuse (see Halsbury’s Laws of England (4th Ed) Vol 28, para 1, p 3).

[61] A corporate body may maintain an action for defamation in the same way as an individual (see Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87 at p 90 per Pollock CB; approved in South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 (CA) at p 142 and also Williams v Beaumont (1833) 10 Bing 260). However, the imputation must reflect upon the company or corporation itself and not upon its members or officials only (see South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 (CA) at p 141 per Lord Esher MR).

[62] A trading company or corporation has a trading reputation and can maintain an action for libel or slander in respect of a statement that injures its trade or business (see South Hetton Coal Co Ltd v North­Eastern News Assocition Ltd (libel); D and L Caterers Ltd and Jackson v D’Ajou [1945] KB 3649, [1945] 1 All ER 563 (CA) (slander); Linotype Co Ltd v British Empire Type-Setting Machine Co Ltd (1899) 81 LT 331 (HL); Slazengers Ltd v C Gibbs & Co (1916) 33 TLR 35; and Lyan v Lipton (1914) 49 L Jo 542). The company is not required to prove that it has suffered special damage, such as financial loss (see Company of Proprietors of Selby Bridge Ltd v Sunday Telegraph Ltd (1966) 197 Estates Gazette 1077). It may recover damages for the injury to its goodwill (see Rubber Improvement Ltd v Daily Telegraph Ltd, Rubber Improvement Ltd v Associated Newspapers Ltd [1964] AC 234 at p 262; sub nom. Lewis v Daily Telegraph Ltd, Lewis v Associated Newspapers Ltd [1963] 2 All ER 151 at p 156 (HL) per Lord Reid; see also South Hetton Coal Co Ltd v North-Eastern News Association Ltd at p 143 per Lopes CJ).

[63] The general rule is that to entitle a plaintiff to an interlocutory injunction he must satisfy the court that his claim is not frivolous or vexatious and that there is a serious question to be tried (see American Cyanamid v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504 (HL); Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193; and Alor Janggus Soon Seng Trading Sdn Bhd & Or v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241).

[64] However, different principles apply to the grant of an interlocutory injunction in defamation cases because of the right of free speech although the court has jurisdiction to restrain the publication of defamatory statements, if necessary, on an interlocutory application (see Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 Ch D 501 (CA)).

[65] An interlocutory injunction will not be granted in defamation cases when the defendant swears that he will be able to justify the libel and the court is not satisfied that he may not be able to do so (Bonnard v Perryman [1891] 2 Ch 269 (CA)).

[66] In Malaysia, in the case of The New Straits Times Press (M) Bhd v Airasia Bhd [1987] 1 MLJ 36 at p 38, Abdul Hamid Ag LP (now LP (rtd)) in delivering the judgment of the Federal Court and having stated succinctly the law regarding the grant of interlocutory injunctions in defamation cases in the following terms:

[*239]

There is, in law, no doubt that ‘the High Court may grant an
interlocutory injunction restraining the defendant, whether by himself
or by his servants or agents or otherwise, from publishing or further
publishing matter which is defamatory or of malicious falsehood. It is
not necessary to show that there has already been an actionable
publication or that damage has been sustained. In appropriate cases an
injunction may be granted ex parte and before the issue of a writ.’
(Halsbury’s Laws of England (4th Ed) Vol 28, para 166).

[67] nevertheless, proceeded to express the following caution:

However, in deciding whether or not to grant an interlocutory
injunction the court must exercise its discretion judicially. It is of
cardinal importance to bear in mind that:

‘Because of the court’s reluctance to fetter free speech and
because the questions that arise during the proceedings, such as
whether the meaning is defamatory, whether justification or fair
comment are applicable and as to malice, are generally for the
jury, interlocutory injunctions are granted less readily in
defamation proceedings than in other matters and according to
different principles.’ Halsbury’s Law of England (4th Ed) Vol 28,
para 167 (see Quartz Hill Consolidated Gold Mining v Beall
(1882) 20 Ch D 561).’

[68] In Bonnard v Perryman , Lord Coleridge CJ delivering the judgment of the court in which Lord Esher MR, and Lindley, Bowen and Lopes LJJ concurred, emphasized that:

The right of free speech is one which it is for the public interest
that individuals should possess, and indeed, that they should exercise
without impediment so long as no wrongful act is done; and, unless an
alleged libel is untrue, there is no wrong committed; but, on the
contrary, often a very wholesome act is performed in the publication
and repetition of an alleged libel. Until it is clear that an alleged
libel is untrue, it is not clear that any right at all has been
infringed; and the importance of leaving free speech unfettered is a
strong reason in cases of libel for dealing most cautiously and warily
with the granting of interim injunctions. We entirely approve of, and
desire to adopt as our own, the language of Lord Esher, MR in Coulson
v Coulson
— ‘To justify the court in granting an interim injunction
it must come to a decision upon the question of libel or no libel,
before the jury have decided whether it was a libel or not. Therefore
the jurisdiction was of a delicate nature. It ought only to be
exercised in the clearest cases, where any jury would say that the
matter complained of was libellous, and where, if the jury did not so
find, the court would set aside the verdict as unreasonable.

[69] His Lordship also said as follows:

Authorities do also show that the principle that there shall be no
interim injunction if defence is raised ‘applies not only to the
defence of justification’ (Bonnard v Perryman ), ‘but also to the
defence of privilege’ (Quartz Hill Consolidated Gold Mining v Beall
), and ‘fair comment’ (Fraser v Evans & Ors ). In accordance
with the long established practice in defamation action, the principles
enunciated by the House of Lords in American Cyanamid v Ethicon
Ltd
relating to interim injunctions are not applicable in action for
defamation. (Herbage v Pressdram Ltd ).

[70] In my judgment, the impugned statements in the instant case are manifestly defamatory as the following conditions have been satisfied. First, the natural  [*240] and ordinary meaning of the impugned statements which also includes their inferential meaning is, inter alia, as follows:

(1)   that the plaintiffs do not have any lawful claim to any domain name
containing the word ‘PETRONAS’;

(2)   that the plaintiffs are in the habit of resorting to strong-arm tactics
to oppress and intimidate other local companies and/or local business
entities;

(3)   that the plaintiffs are attempting or have in the past attempted to
extort money from local companies or business entities by forcing them
to transfer domain names to the plaintiffs for free;

(4)   that the plaintiffs consistently behave in an arrogant or high-handed
fashion to oppress and intimidate other local companies and/or local
entities;

(5)   that the plaintiffs have acted like a ‘robber’ and their actions may be
likened to a form of theft; and

(6)   the legal services department of the plaintiffs is generally
incompetent and/or ignorant.

[71] Secondly, the plaintiffs have shown that the impugned statements were:

(1)   calculated to injure the reputation of the plaintiffs by exposing them
to hatred, contempt or ridicule;

(2)   intended to lower the plaintiffs in the estimation of right-thinking
members of society generally;

(3)   calculated to injure and injure and disparage the plaintiffs’
reputation in the plaintiffs’ office, profession and trade; and

(4)   intended to bring the plaintiffs, by virtue of their standing, honour
and integrity, into public scandal, odium and contempt.

[72] Thirdly, the plaintiffs have sufficiently demonstrated that the impugned statements have been published to third parties as follows:

(1)   the first ICANN e-mail;

(2)   the second ICANN e-mail;

(3)   the statements on the website;

(4)   the first soc.culture.malaysia posting; and

(5)   the second soc.culture.malaysia posting.

[73] ICANN is the Internet Corporation for Assigned Names and Numbers. It is an international organisation which dispenses the top level domain names. It was formed to assume responsibility for the Internet Protocol address spare allocation, protocol parameter assignment, domain name system management, and root server system management functions previously performed under US Government contract by other entities. The Board of Directors of ICANN comprises nine persons. The staff of ICANN comprises 16 persons.

[74] The statements on the website are accessible by every single internet user in the world accessing the URL http://www.petronasgas.com by  [*241] directly keying in this URL or by keying in ‘PETRONAS’ to an internet search engine.

[75] Soc.culture.malaysia is a Usenet facility which enables authors to publish material to readers worldwide. Authors submit articles, known as postings, to the Usenet news server based at its local service provider which then disseminates the postings via the newsgroup. The postings may be placed on a newsgroup dealing with a certain subject, and may be ultimately distributed and stored on the news servers of all services providers that offer usenet facilities.

[76] The transmission of a defamatory posting from the storage of a new server is in effect a publication of that posting to any subscriber who accesses that newsgroup containing that posting.

[77] In the instant case, there is a bona fide serious question to be tried that the soc.culture.com postings were e-mailed from the defendant’s computer to the soc.culture.com Usenet facility. Subsequently, it may have been accessible to all subscribers of the particular newsgroup in which it was placed.

[78] The defence is one of denial, i.e. that the defendant did not send the impugned statements. The defendant is not relying on the defence of justification, privilege or fair comment on a matter of public interest.

[79] Nevertheless, I am satisfied that the impugned statements clearly refer to the plaintiffs. It is also clear that the impugned statements are obviously untrue, are defamatory of the plaintiffs and were written with the sole intention of identifying and defaming the plaintiffs.

[80] Fourthly, the plaintiffs have shown that by reason of the publication of the impugned statements, the plaintiffs have suffered grave injury to their trading personality and irreparable loss and damage and will continue to suffer such irreparable loss and damage.

[81] The plaintiffs have also shown that the defendant has by publishing the impugned statements libeled the plaintiffs and there is reason for the court to believe that as a result of the repetition of the impugned statements by the defendant on numerous occasions and the defendant’s threat of republication in its invitation to readers of the statements on the website to ‘spread this bully case worldwide’ that publication or further publication of the impugned statements is threatened or intended and that if it takes place the plaintiffs will suffer immediate and irreparable injury and damage to the plaintiffs’ trading reputation because the impugned statements could be further published to an unlimited number of internet users including local and foreign industry players and corporations. Therefore, an interlocutory injunction should be granted to restrain the defendant from further defaming the plaintiffs on the internet which is a borderless unrestricted environment or elsewhere.

[82] Fifthly, the court is satisfied that there has been no improper delay on the part of the plaintiffs in bringing this application because the existence of the website www.petronasgas.com maintained by the defendant, purporting to be a ‘subsidiary of the searchmalaysia.com’ and purporting to provide  [*242] information on the locality of the plaintiffs’ service stations and three-phase Peninsular Gas Utilization (PGU) project and displaying the impugned statements was only discovered by the plaintiffs on or about the end of November 2001 and the defendant’s official response to Messrs Lee Hishammuddin’s letter was only received on 5 December 2001.

[83] Finally, the plaintiffs have given an undertaking as to damages. The court is satisfied that the plaintiffs are in a strong financial position to meet their undertaking in the event the defendant wins at the trial.

Passing off

[84] In the instant case, the plaintiffs are seeking to protect their intellectual property in their trade mark and also in their internet domain names. The latter is a new form of intellectual property which came about because of the advent of the internet.

[85] An action for passing off is a very old and familiar one. It is used to protect property by preventing damage to goodwill associated with the name or mark by preventing other people from fraudulently stating that it is their manufacture when it is not. In this way, it is a remedy to protect the right of a man to have the reputation of selling that which is his manufacture as his manufacture (see Lord Halsbury LC’s judgment in Magnolia Metal Co v Tandem Smelting Syndicate Ltd (1900) 17 RPC 477 at p 484).

[86] It is also a fundamental rule that no man has a right to pass off his goods for sale as the goods of a rival trader (see Leather Cloth Co Ltd v American Leather Cloth Co Ltd (1865) 11 HL Cas 523 at p 538, per Lord Kingsdown.

[87] It would seem that in passing off cases the right invaded is the property in the business or goodwill likely to be injured by the misrepresentation (see Spalding & Bros v AW Gamage Ltd (1915) 84 LJ Ch 449 (HL)).

[88] The general rule is that if a plaintiff applies for an injunction in respect of a violation of a common law right, and the existence of that right, or the fact of its violation is denied, he must established his right at law (see Spottiswoode v Clark (1846) 2 Ch 154). Having done that he is, except in special circumstances, entitled to an injunction to prevent a recurrence of that violation. In certain cases the court may not require the plaintiff to establish his right at law, for instance where his title is not denied (see Directors of Imperial Gas Light and Coke Co v Broadbent (1859) 7 HL Cas 600 at p 612; Fullwood v Fullwood (1878) 9 Ch D 176; Martin v Price [1894] 1 Ch 276 at 285, CA; Wood v Conway Coon [1914] 2 Ch 47 (CA); Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] I Ch 149 at p 181, [1953] I All ER 179 at p 197 (CA) and Potts v Leyy (1854) 2 Drew 272).

[89] The principles upon which actions for passing off were founded are stated in the proposition that nobody has any right to represent his goods a!§’ the goods of somebody else. (See Lord Parker’s judgment in AG Spalding Bros v AW Gama-ge Ltd (1915) 84LJ Ch 449 at 449. See also Singer Manufacturing Co v Loog (1880) 18 Ch D 395 and Frank Reddaway & Co Ltd v George Banham & Co Ltd [1896] AC 1999, [1895-9] All ER Rep 133).

[*243]

[90] With regard to the basis of the cause of action of passing off and the property right which was damaged, Aldous LJ in delivering the first judgment in the case of British Telecommunications plc and another v One In A Million Ltd & Ors and other actions [1998] 4 All ER 476 to which Swinton Thomas and Stuart-Smith LJJ concurred cited the following excerpt from Lord Parker’s judgment in AG SRalding Bros v A W Gamage Ltd (1915) 84 LJ Ch 449 at 450:

The basis of a passing-off action being a false representation by the
defendant, it must be proved in each case as a fact that the false
representation was made. It may, of course, have been made in express
words, but cases of express misrepresentations of this sort are rare.
The more common case is where the representation is implied in the use
or imitation of a mark, trade mark, or get-up with which the goods of
another are associated in the minds of the public, or of a particular
class of the public. In such cases the point to be decided is whether,
having regard to all the circumstances of the case, the use by the
defendant in connection with the goods of the mark, name, or get-up in
question impliedly represents such goods to be the goods of the
plaintiff or the goods of the plaintiff of a particular class or
quality, or, as it is sometimes put, whether the defendant’s use of
such mark, name, or get-up is calculated to deceive. It would, however,
be impossible to enumerate or classify all the possible ways in which a
man may make the false representation relied on. There appears to be
considerable diversity of opinion as to the nature of the right, the
invasion of which is the subject of what are known as passing-off
actions. The more general opinion appears to be that the right is a
right of property. This view naturally demands an answer to the
question, Property in what? Some authorities say, property in the mark,
name, or get­up improperly used by the defendant. Others say, property
in the business or goodwill likely to be injured by the
misrepresentation. Lord Herschell, in Reddaway v Banham & Co
[1896] AC 199, [1895-9] All ER Rep 133) expressly dissents from the
former view, and if the right invaded is a right of property at all,
there are, I think, strong reasons for preferring the latter view. In
the first place, cases of misrepresentation by the use of a mark, name,
or get-up infringed unless it be B’s name; and if he says falsely, ‘
These are B’s goods of a particular quality,’ where the goods are in
fact B’s goods, there is no name which is infringed at all.

[91] In British Telecommunications, the Court of Appeal in dismissing the defendants’ appeal held that the court had jurisdiction to grant injunctive relief in a passing off action where a defendant was equipped with or was intending to equip another with an instrument of fraud.

[92] The facts of the case were that the plaintiff, namely, British Telecommunications plc, Telecom Services Cellular Radio Ltd, Virgin Enterprises Ltd, J Sainsbury plc, Marks & Spencers plc and Ladbroke Group plc, respectively, in each of the five actions was a well-known company possessing registered trade marks, most of which incorporated the company’s name and the use of which was such that the plaintiffs owned substantial goodwill attaching to them. The defendants were dealers in internet domain names who registered names and sold them to potential users very much in the same way as company registration agents and it was accepted that in each case they had registered domain names comprising the name or trade mark of the plaintiff. The plaintiff sought injunctive relief,  [*244] alleging passing off and infringement of their trade marks and applied for summary judgment. The judge granted the plaintiffs final injunctions quia timet holding that although mere registration of a deceptive company name or internet domain name was not passing off, it was sufficient for the purposes of granting the injunction that what was going on was calculated to infringe the plaintiffs rights in future as it was beyond dispute that the defendant’s activities were calculated to infringe the plaintiffs’ right in the future. The reason was because the only possible reason why anyone, who was not connected with one of the plaintiffs would wish to use a domain name incorporating their trade marks or names would be to pass himself off as part of a plaintiff s group or his products off as theirs.

[93] In respect of the domain name containing the name Marks & Spencer which was registered by the defendant, One In A Million Ltd, Aldous IJ had this to say at pp 497–498:

It is accepted that the name Marks & Spencer denotes Marks &
Spencer plc and nobody else. Thus anybody seeing or hearing the name
realizes that what is being referred to is the business of Marks &
Spencer plc. It follows that registration by the appellants of a domain
name including the name Marks & Spencer makes a false
representation that they are associated or connected with Marks &
Spencer plc. This-can be demonstrated by considering the reaction of a
person who taps into his computer the domain name marksandspencer.co.uk
and presses a button to execute a ‘whois’ search. He will be told that
the registrant is One In A Million Ltd. A substantial number of persons
will conclude that One In A Million Ltd. must be connected or
associated with Marks & Spencer plc. That amounts to a false
representation which constitutes passing off.

…The placing on a register of a distinctive name such as
marksandspencer makes a representation to persons who consult the
register that the registrant is connected or associated with the name
registered and thus the owner of the goodwill in the name. Such persons
would not know of One In A Million Ltd. and would believe that they
were connected or associated with the owner of the goodwill in the
domain name they had registered. Further, registration of the domain
name including the words Marks & Spencer is an erosion of the
exclusive goodwill in the name which damages or is likely to damage
Marks & Spencer plc.

I also believe that domain names comprising the name Marks &
Spencer are instruments of fraud. Any realistic use of them as domain
names would result in passing off and there was ample evidence to
justify the injunctive relief granted by the judge to prevent them
being used for a fraudulent purpose and to prevent them being
transferred to others.

I also believe that the names registered by the appellants were
instruments of fraud and that injunctive relief was appropriate upon
this basis as well. The trade names were well-known ‘household names’
denoting in ordinary usage the respective respondent. The appellants
registered them without any distinguishing word because of the goodwill
attaching to those names. It was the value of that goodwill, not the
fact that they could perhaps be used in some  [*245] way by a
third party without deception, which caused them to register the names.
The motive of the appellants was to use that goodwill and threaten to
sell it to another who might use it for passing off to obtain money
from the respondents. The value of the names lay in the threat that
they would be used in a fraudulent way. The registrations were made
with the purpose of appropriating the respondents’ property, their
goodwill, and with an intention of threatening dishonest use by them or
another. The registrations were instruments of fraud and injunctive
relief was appropriate just as much as it was in those cases where
persons registered company names for a similar purpose.

[94] Similarly here, in the instant case, the defendant by registering the said domain names which contain the word ‘Petronas’ which has not only become a household name in Malaysia but is also well known internationally there is a serious issue to be tried in that the defendant is making a false representation to persons who consult the register that the registrant Araneum Consulting Services is connected or associated with the name registered and thus the owner of the goodwill in the name Petronas. Such persons would not know of the defendant and would believe that the defendant was connected or associated with the plaintiffs who are the owners of the goodwill in the said domain names. By registering the said domain names the defendant has eroded the exclusive goodwill in the name Petronas which damages the plaintiffs.

[95] In my view, the said domain names are instruments of fraud and any realistic use of them as domain names would result in passing off. This would cause irreparable injury and damage to the plaintiffs and by virtue of this the balance of convenience tilts in favour of the plaintiffs. Therefore, as the plaintiffs have provided an undertaking as to damages the interim injunction sought for ought to be granted.

[96] The plaintiffs have sufficiently demonstrated that since the said domain names contain the word Petronas the court can assume that the intention of the defendant in using the said domain names is to deceive the public by passing off himself as part of the Petronas group of companies or his business or products as those of the plaintiffs.

[97] In the circumstances of this case, the court is satisfied that the plaintiffs have shown that there is a threat of passing off and trademark infringement on the defendant’s part which is likely to cause confusion in the minds of the present and potential consumers of the plaintiffs’ products thereby resulting in irreparable injury and damage to the plaintiffs’ trade, business and goodwill.

[98] In the premises, the court granted the inter partes prohibitory injunctions sought for by the plaintiffs with costs in the cause.

ORDER:
Plaintiff’s application allowed.

LOAD-DATE: 05/21/2008

Conflict of Interest in Expert Witnessing: R v Bowman (Expert Evidence, Guidance, Duties of Experts)(United Kingdom)[Excellent Case for Defendant]

[2006] EWCA Crim 417, [2006] 2 Cr App Rep 22, (Transcript: Smith Bernal Wordwave)

R v Bowman
COURT OF APPEAL (CRIMINAL DIVISION)
[2006] EWCA Crim 417, [2006] 2 Cr App Rep 22, (Transcript: Smith Bernal Wordwave)
HEARING-DATES: 2 MARCH 2006
2 MARCH 2006
CATCHWORDS:
Criminal evidence – Expert evidence – Guidance – Duties of experts – Necessary inclusion in an expert report

COUNSEL:
D Martin-Sperry and S Grey for the Defendant; A Edis QC and S Driver for the Crown.

PANEL: GAGE LJ, CRESSWELL, FIELD JJ

JUDGMENTBY-1: GAGE LJ:

JUDGMENT-1:
GAGE LJ:

(reading the judgment of the court)

INTRODUCTION

[1] On 8 July 1978 Mary Bowman died. She was aged 44 and married to the Appellant. At the time the Appellant was aged 36. The deceased and the Appellant had married in July 1970. The deceased had four children by a previous marriage, the youngest being Philip who was born on 22 April 1967. The deceased and the Appellant had two children Damien who was born on 6 May 1970 and Diane born on 7 December 1972. At all material times Philip, Damien and Diane lived as one family with the deceased and the Appellant.

[2] Following the deceased’s death an autopsy was carried out by Dr Thomas Gordon on behalf of HM Coroner as a result of which he gave as the cause of death ‘Alcohol and Valium Poisoning’. The deceased was buried. After her death Damien and Diane continued to live with the Appellant until they were grown up but Philip went to live with an aunt. In 1982 the Appellant re-married. He had a step-daughter by that marriage. In 2000 Diane first reported to the authorities that the Appellant was responsible for the death of her mother, the deceased.

[3] The body of the deceased was exhumed and a second autopsy carried out by Dr Alison Armour a consultant Home Office pathologist. As a result of the autopsy Dr Armour concluded that the deceased’s death was caused by manual strangulation. The Appellant was arrested in respect of this alleged offence. A number of statements were taken from Diane and Damien in which each complained of acts of sexual abuse of them by the Appellant.

[4] Following a trial at Preston Crown Court on 23 July 2002 the Appellant was convicted of the murder of the deceased and sentenced to a term of life imprisonment. He was also convicted of three counts of indecent assault on Diane and one of rape of her. In respect of those offences he was sentenced to four years imprisonment on each of the counts of indecent assault and 12 years for the rape. Further, he was convicted of two offences of buggery of Damien and sentenced to 12 years imprisonment on each of those counts. All the sentences were concurrent with each other. He now appeals against his conviction for murder with the leave of the full court. The grant of leave was confined to one ground. Leave was refused in respect of other proposed grounds of appeal but the Appellant seeks to challenge his convictions on all the other counts.

[5] Before turning to the evidence it is necessary to recite one further fact which, for obvious reasons, was not before the jury. In 1996 the Appellant separated from his second wife, Susan Taylor and in the course of the divorce proceedings his step-daughter Kelly first made allegations that he had sexually abused her for many years up until 1996. As a result, in 1998, the Appellant faced a trial at Liverpool Crown Court which resulted in him being convicted of two counts of rape and two of indecent assault out of twenty-one counts of rape and indecent assault. He was sentenced to a total of nine years imprisonment in respect of those convictions. At that trial he was represented by Lord Carlile QC, the same counsel who represented him at Preston Crown Court. An appeal against conviction was filed but subsequently abandoned. On 17 May 2005 his application to treat as a nullity the Notice of Abandonment was rejected.

THE EVIDENCE AT TRIAL: THE MURDER

[6] The prosecution relied upon a number of strands of evidence in support of its case on the count of murder. The principal evidence relied upon by the prosecution was evidence of what happened on the night of 7/8 July 1978; and evidence from forensic scientists including Dr Armour the forensic pathologist who had conducted the autopsy, Dr Timothy Hales, a consultant chemical pathologist who analysed the original blood samples taken at the first autopsy, Dr Alexander Allen, a toxicologist, and Professor Paul Nicholls, a professor of pharmacology. The prosecution also called a Kevin Williams, a prisoner serving a sentence in the same prison where the Appellant was in custody awaiting trial. Before we deal with this evidence in any detail we must refer to the background evidence of alleged violence committed by the Appellant upon the deceased before her death, and on Damien and Diane. The prosecution relied on this evidence as being relevant to the background of the relationship between the parties and, as the judge directed the jury, as relevant to whom the jury could believe. This evidence was given by the Appellant’s step-son Philip, and Damien and Diane. They stated that the Appellant used violence towards the deceased and to each of them. Philip told the jury that the Appellant was violent to him, Damien and the deceased and that he never felt safe. He said that the Appellant regularly used his fists and belt on them and that there were constant arguments between the Appellant and the deceased which always led to violence. He said that he saw the deceased with bruising and black eyes. Damien also spoke of arguments and said that the Appellant would take hold of the deceased round the neck. He said that the children were beaten with a belt. Diane said that the Appellant was violent to the deceased and to her brothers but not to her.

[7] Further, the prosecution called evidence from two brothers of the deceased and one of her daughters from her previous marriage, all of whom spoke of seeing bruising to her face and arms on a number of occasions. Two other witnesses spoke of bruising and a broken arm. Yet another daughter of the deceased and her husband gave evidence of an incident at Christmas 1975 when, following an argument, the Appellant butted the deceased in the face, punched her and threw her about the room. When the daughter’s husband intervened to pull the Appellant away the Appellant hit him with a wooden pole breaking it in the process.

[8] Damien and Diane gave evidence of incidents of sexual abuse by the Appellant upon each of them. Their evidence formed the basis of counts 2 – 7 on the indictment. The relevance of their evidence to the prosecution’s case on the count of murder was that Diane said that it triggered the events on 7 July 1978 which led to her mother’s death. Her evidence was that the sexual abuse by the Appellant on her began when she was about five years old. Count 2 was an allegation of indecent assault which took place between 1 January 1978 and 9 July 1978. It took the form of the Appellant forcing Diane to perform oral sex upon him until he ejaculated. Diane said that on the evening 7 July 1978, when the Appellant was still at work, she told her mother what he had been doing to her. When the Appellant returned home the deceased told him that he was a ‘dirty sod’ and that she was leaving with Diane. Diane said that the Appellant took both of them into the sitting room. The deceased was shouting at the Appellant but he seemed calm. He said to Diane ‘what did I tell you I was going to do if you told your mother?’ He went on to say that he had been planning to kill her in the course of the ensuing argument. Diane said that the deceased tried to run out of the house but when she could not get out she panicked and picked up a poker. The Appellant became very angry and grabbed her wrist saying ‘go on, hit me’. He pushed her forcefully and she tripped back falling hard and hitting her head on the fireplace. Diane said that the deceased became unconscious. The Appellant laughed and said ‘that saved me a job didn’t it?’ He made Diane sit on the couch in the room and then left telling her to call if her mother opened her eyes.

[9] Diane said that she was very frightened and watched her mother. The deceased’s eyes were closed and there was some blood but the deceased then opened her eyes and asked Diane to call an ambulance. Diane did not do so. The Appellant came back in and told Diane to telephone for an ambulance but she said she was afraid and that her mother was alright and only pretending. The deceased then opened her eyes and pleaded with the Appellant to call an ambulance saying that she loved him and that they would sort everything out. She promised to say that her fall had been an accident. The Appellant said this has gone too far and that he would have to finish it. He left the room. The deceased again asked Diane to call an ambulance but she was upset and did not do so. The Appellant came back into the room and said to the deceased that he had some nice tablets for her and that everything would be alright. He said he would call an ambulance. He went over to her and crouched over her close to her head. He had his back to Diane and was between her and the deceased so that she could not see precisely what he was doing. Diane said that he had his hand on the deceased’s chin and she assumed he was trying to give her tablets but the deceased would not take them. The Appellant got up and left the room. The deceased then asked Diane to get an ambulance and Diane tried to dial the number but the Appellant came back into the room. Seeing what she was doing he became very angry and said that she was a little bitch. He said he would ‘shit on her’. He pulled her to the floor and defecated on her head. This latter incident formed the basis of count 3. The Appellant then took Diane upstairs and washed her hair. They returned to the living room. The deceased had not moved and was awake but drowsy. At some stage the Appellant did call an ambulance and Diane remembered it coming but did not know when this was. The deceased was not awake by then. The Appellant did not go with the ambulance saying that he would stay with the children. Later Diane heard him speaking on the telephone. He was very upset. He then took her out her room and told her that her mother had died and it was her fault. She said that the Appellant put his penis in her mouth and ejaculated. She remembered that at some stage police officers came to the house. One of them asked why her hair was wet but she was too frightened to say anything to the police or the ambulance men.

[10] Damien, aged 8 at the time, remembered the night before the deceased died. His evidence was that he and Philip had gone to bed early because they were expecting trouble when the Appellant returned. He said that he dropped off to sleep but then crept down stairs and saw his mother lying on her back on the floor looking at him. The deceased asked him to telephone the police but he heard his father and ran up to the landing. He next remembered Diane in the room with her nose bleeding. There came a time when he heard noises down stairs and he crawled to the top of the stairs. He saw the police and ambulance men. Diane’s hair was wet and she was shaking and crying. Next day the Appellant told them their mother was dead and he took Damien and Diane to stay at his mother’s house. Philip slept through the night.

[11] A friend of the deceased, Patricia Stones, said that she telephoned the Bowman house at about 11.30pm. She had seen the deceased earlier that day laughing and joking. Her evidence was that the Appellant answered the telephone and said ‘what the fuck are you doing ringing up at this fucking time of night?’ She considered that his manner was aggressive and she made an excuse that she wanted to verify an order which the deceased had spoken about earlier in the day. The Appellant said ‘she’s asleep on the fucking floor’ and put the telephone down.

[12] Following the events of the night of 7/8 July 1978 the coroner instituted an investigation. As a result Dr Gordon was asked to carry out an autopsy. Having done so his conclusion as to the cause of death was, as we have said, alcohol and valium poisoning. The Appellant gave a lengthy statement to the coroner’s officer PC Brimage. The statement was included in the exhibits for the jury. The prosecution alleged that in the statement the Appellant told a number of lies and in particular his account of the death of the deceased was a lying account. In the statement the Appellant said that the deceased had suffered from a bout of depression in June because of the anniversary of her mother’s death. She had also incurred a large debt in connection with a shop which she ran. He said that on the evening of 7 July 1978 the deceased drank beer and whisky. At about midnight he took the dog for its walk and then bedded down on the lounge floor. Before doing so he had given the deceased her usual dosage of four valium. At 3.00am he awoke and found that the deceased was not breathing. He called an ambulance.

[13] At some stage in the course of the coroner’s investigation a police officer recovered a bottle of valium containing twelve tablets. It had been dispensed to the deceased on 5 July 1978 at which time it contained forty tablets.

[14] The prosecution alleged that at this time the Appellant gave inconsistent accounts of the deceased’s death to various friends and members of the family. Diane said that she had told her grandmother that the Appellant had killed her mother but her grandmother said that he had not meant to and brushed it aside. She said that she also told a teacher but the Appellant and her grandmother came to the school and told the school that she was a story teller and was missing her mother.

[15] In 1995 Diane moved to Northern Ireland. In 1998 she made a statement stating that she had never been sexually abused by the Appellant. In evidence she said that she believed that at the time she made the statement because she had suppressed the memories of what had happened. In late 1998 she started having counselling and began to remember incidents. As a result of her memory recall she contacted the police in 2000. As a result of what she told the police the body of the deceased was exhumed on 21 March 2001. Dr Armour was present at the exhumation and carried out the autopsy shortly afterwards.

THE SCIENTIFIC EVIDENCE

[16] It is not in dispute that in the course of her post-mortem examination Dr Armour discovered that on the left side of the superior horn of the thyroid cartilage in the neck there was a tear or deficiency in the lining. At the site of this tear there was a fracture approximately 16mm from the tip of the superior horn through the left side of the superior horn. She also discovered that on the right side there was a fracture to the superior horn situated 6-7mm from the tip of the superior horn of the thyroid cartilage. She also discovered some red cells in the immediate area of each of the fracture sites. Dr Armour concluded that the fractures of the two thyroid cartilages situated in the neck occurred before the death. The basis for this conclusion was first her view that it was extremely unlikely that the fractures had occurred during the first autopsy conducted by Dr Gordon; and secondly the red blood cells found at each site led to the conclusion that the fractures must have occurred less than ten minutes before death. On the basis of these findings she concluded that death was caused by manual strangulation. She asserted that there was no other explanation for the death of the deceased.

[17] Dr Armour said that in her opinion Dr Gordon must have missed these fractures on his examination. There is no dispute that he did not identify the bilateral fractures. Dr Armour said that this was because he did not examine the larynx in general or the thyroid cartilage in particular. Her examination showed that Dr Gordon had not cut open the larynx which was still closed when she performed her autopsy. She put this omission down to the fact that Dr Gordon was not a Home Office Forensic Pathologist and was inexperienced in carrying out autopsies in the case of a suspicious death.

[18] Dr Hales referred to his original toxicology report in which he had recorded a blood/alcohol level of 275mg per 100mls and a blood/diazepam level of 1.4mg per litre. In that report he had said that such a combination must be considered very dangerous and that he would think it reasonable to accept it as a cause of death. In evidence he explained that Dr Gordon had told him that the case was a classic one of death from asphyxia where other potential causes of asphyxia had not been discovered. Having carried out his analyses Dr Hales said that he told him he was not happy and wondered if the deceased had taken a distalgesic. Dr Gordon said that he would check on her medication and any suspicious circumstances. Dr Gordon convinced him that there was no anatomical cause for asphyxia and no other suspicious circumstances. Accordingly, Dr Hales provided the report. He did so on the assumption that there was no other pathological evidence of the cause of death.

[19] Dr Allen said in evidence that he would find it extremely unusual to attribute death to the recorded levels of alcohol and diazepam but it was not impossible for those levels in combination to cause death. Professor Nicholls expressed the belief that the drugs in this concentration were not the cause of the deceased’s death. He admitted that it was a possibility but he doubted that it was the cause.

[20] At interview the Appellant gave substantially the same account of the events of 7/8 July 1978 as he had given to the Coroner’s Officer.

[21] Finally the prosecution called the serving prisoner Kevin Williams. He was serving a sentence for burglary at HMP Walton and said that he was something of an amateur prison lawyer. Many inmates asked him for advice. He said that after some time the Appellant told him that he was charged with the murder of his wife and with sexual offences against his children. The Appellant told him that expert witnesses would support him and that he was innocent. Subsequently the Appellant told him that he had enough of his wife with other men and that she had caught him with his daughter. There had been an argument and he had fetched a damp cloth which he placed over her mouth until she started convulsing.

[22] Later he admitted abusing his daughter and son. Williams said that he decided to contact the police and on 11 June 2002 he was taken to a police station. He admitted that he had a lengthy criminal record and that he hated sex offenders having himself being abused while in care. He had in the past reported other confessions concerning sexual offences. He denied making false allegations in order to obtain a ‘text’ and said that his only motive in this case was that he believed from what the Appellant himself had told him that he was a very dangerous sex offender.

[23] The Defendant gave evidence in his own defence. He denied using violence on his wife or children, or sexually abusing the children. He said that he was always on good terms with them. On this aspect of the evidence he called his mother and sister who confirmed that they had never witnessed any violence between the Appellant and the deceased. His mother said that she had never seen any physical or sexual abuse of the children or anything at all untoward. She said they were happy with the Appellant.

[24] The Appellant said that Diane’s account of the events of 7/8 July 1978 was completely wrong. He remembered that night well. He was supposed to work the night shift but the deceased, who was upset by reason of the anniversary of her mother’s death, wanted him to stay at home. He went to work but was given permission to return home. He arrived back at about 8.30pm. The deceased put the children to bed as usual and he went to the off-licence to buy beer and a miniature whisky. He and the deceased sat together drinking, talking and cuddling until about 11.30pm when he took the dog out for about an hour, as he usually did. Before he went out he gave the deceased her four valium tablets. When he got home she was quite ‘groggy and bevvied’. Patricia Stones telephoned and the deceased indicated that she did not wish to speak to her. The Appellant said he was annoyed with Patricia Stones for telephoning so late. The deceased did not want to go up to bed in their bedroom, as it was in a mess from renovation works, so they decided to sleep downstairs in their clothes as they had done before. The Appellant fetched the duvet. He went to sleep and woke one and a half or two hours later when he became aware that the deceased was not breathing properly. He laid her on her back and tried to give her mouth to mouth resuscitation. He pushed her head back with his hand on her chin so that her airways were open and opened her mouth. He held her nostrils closed and kept blowing into her mouth. She seemed to be responding so he tried to get her up to walk around but he lost his balance and they both fell. The deceased came into contact with the stone fireplace and sustained a small cut over her right eye. The cut did not bleed and the Appellant panicked. He gave her mouth to mouth resuscitation again. As far as he was concerned the children were asleep. When the deceased started breathing again he telephoned for an ambulance. He went with the deceased in the ambulance but was told that she was dead on arrival at hospital. A police officer stayed at the house with the children. He said that he loved the deceased and never hurt her. He denied force-feeding her with alcohol and valium, or strangling her, or doing anything that could have caused the fractures to the thyroid cartilage.

[25] The defence case was that Dr Gordon was a very well respected pathologist, said by those who worked with him to be very careful and accurate. Professor Helen Whitwell, a Home Office Forensic Pathologist, called by the defence, pointed out in evidence that aspects of Dr Gordon’s report, such as the description and measurements of the facial abrasions, indicated more than normal thoroughness in a post-mortem report. In her opinion weight should be attached to the fact that he reported there were no petechial haemorrhages, neck bruising, or mucosal lip lesions. Professor Whitwell said that it was highly unusual and exceptional for these to be absent in a case of asphyxia. She accepted that the damage to the superior horns of the thyroid cartilage was probably fractures. However, she said that it was not possible to reach a conclusion as to whether these occurred before or after death. In her view, even if the fractures occurred before death they did not necessarily lead to death because of the absence of signs pointing to asphyxia. She concluded that the cause of death was unascertainable. She was asked in cross-examination about the possibility of the fractures being caused accidentally when the neck was being removed by Dr Gordon. She agreed that this was unlikely.

[26] The defence relied on the original toxicology finding of Dr Hales that it was reasonable to accept the combination of the concentration of alcohol and diazepam as the cause of death. Professor Wayne Jones, a toxicologist, said that in his opinion although neither the level of alcohol nor the level of diazepam on its own constituted a fatal dose the combination was dangerous and a potential cause of death. In cross-examination he said that the evidence was compelling that these concentrations were the cause of death. However, he agreed that if the fractures of the thyroid cartilage occurred before death it would follow that compression of the neck was the most likely cause of death.

[27] Finally, Samuel Patterson, another prisoner from HMP Walton, gave evidence in support of the Appellant’s case. He said that he had shared a cell with Williams. He said that Williams had formed the opinion that the Appellant was guilty and was determined to make him admit it. He even spoke of ‘stitching him up’.

THE GROUNDS OF APPEAL

[28] Initially one ground of appeal was put forward by trial counsel. The single judge refused leave on that ground. Following a change of counsel and solicitors, a renewed application for leave on an amended notice of appeal containing seven grounds was made to the full court on 10 November 2004. The full court gave leave on ground 1. That ground is:

‘In the light of the evidence available to the defence at trial but uncalled of Dr Lawler, Dr Hunt, Professor Vanezis, Professor Milroy, Dr Hill, it can be shown that the evidence given by Dr Armour relating to the cause of death central to the crown’s case on count 1, could not be justified on the facts available to her.’

[29] The court refused leave on all other grounds. It is material to note that ground 2 alleged a failure by those conducting the Appellant’s defence at trial to advance manslaughter. The court described this ground as unarguable.

[30] We need refer to only two other grounds. They were grounds 3 and 5. Ground 3 alleged a failure by the defence team to seek expert advice in relation to the inherent incapacity of a five year old to retain complex facts, emotions and reasoning and a failure to elicit the precise state of the medical records in so far as they bore on the evidence of the children. Linked with this ground was ground 5 which alleged that Dr Boakes, an expert on the cognitive ranges of memory of young children and available to the defence, ought to have been called. The court refused leave on both grounds on the basis that Dr Boakes was available to give evidence on behalf of the defence and that the decision by defence counsel not to call her was not one which could be characterised as Wednesbury unreasonable (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, [1947] 2 All ER 680).

[31] Mr David Martin-Sperry, counsel for the Appellant, but not trial counsel, does not now criticise the defence for not calling Dr Boakes. He seeks leave to substitute two further grounds of appeal. We shall refer to them as grounds 2 and 3. Ground 2 is that there is fresh evidence from Professor Conway, an expert in memory research, which it is contended is such as, if received, would throw doubt on the evidence of Diane. Ground 3 invites the court to rule as unsafe the verdicts of guilty on the remaining counts on the indictment in the event that the court allows the appeal against conviction on count 1.

[32] Finally at a late stage before this appeal was first due to be heard in December 2005 evidence from a forensic scientist threw doubt on the admission at trial that the neck organs examined by Dr Armour were in fact the deceased’s neck organs. We need say no more about this matter than that we adjourned the hearing of the appeal so that further tests could be carried out. As a result of further tests and inquiries the Appellant did not pursue this as a ground of appeal.

[33] At the hearing of this appeal ground 1, which involved the calling of fresh evidence, was restricted to the evidence of pathologists. In so far as this ground sought to put in issue the evidence of toxicologists and pharmacologists it was not pursued. We heard evidence from leading counsel at trial, Lord Carlile, and in addition to the pathologists previously named, two more Dr Cary and Professor Crane. We also heard evidence from Dr Armour, called on behalf of the prosecution. Finally, we heard evidence from Professor Conway which related solely to the reliability of Diane’s evidence. All the evidence heard by us was heard de bene esse without making any decision as to whether to receive it.

[34] It follows from the above that the principal focus in this appeal has been an attack on the prosecution’s expert witness, Dr Armour, the Home Office forensic pathologist. The criticism of her is that in giving her opinion that the cause of death of the deceased was manual strangulation, she expressed her views and reasons with a certainty which could not be justified. It is contended that she failed in her duty to put before the jury and this court the alternative possible causes of death. It is argued that in this way Dr Armour caused the jury to have an unbalanced picture in relation to the pathological issues involved in determining the cause of death. It is asserted on behalf of the Appellant that no other pathologist agrees with Dr Armour’s opinion. She stands alone amongst pathologists in her opinion as to the cause of death of the deceased.

THE LAW

[35] There is no dispute as to the proper approach which this court should adopt in fresh evidence cases. As amended by the Criminal Appeal Act 1995 s 23 of the Criminal Appeal Act 1968 reads in the material parts:

’23(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice -

a) . . .

b) . . .

c) receive any evidence which was not adduced in the proceedings from which the appeal lies.

(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -

a) whether the evidence appears to the court to be capable of belief;

b) whether it appears to the court that the evidence may afford any ground for allowing the appeal;

c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is subject of the appeal; and

d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.’

[36] The first question we have to ask ourselves is whether we should receive the evidence which we have heard orally de bene esse and the reports of those witnesses which we have read.

[37] In R v Steven Jones [1997] 1 Cr App Rep 86, an appeal in which the Appellant sought to adduce fresh expert evidence, Lord Bingham said:

‘The section (s 23 as amended) makes plain that in the exercise of its discretion whether to receive evidence or not the court must be guided above all by what it considers necessary or expedient in the interest of justice. The section does however acknowledge, in subsection (2)(d), the crucial obligation on a Defendant in a criminal case to advance his whole defence and any evidence on which he relies before the trial jury. He is not entitled to hold evidence in reserve and then seek to introduce it on appeal following conviction. While failure to give a reasonable explanation for failure to adduce the evidence before the jury is not a bar to reception of the evidence on appeal, it is a matter which the court is obliged to consider in deciding whether to receive the evidence or not.

The court has in the past accepted that section 23 may apply to expert evidence, and we would not wish to circumscribe the operation of a statutory rule enacted to protect Defendants against the risk of wrongful conviction. But it seems unlikely that the section was framed with expert evidence prominently in mind. The requirement in subsection (2)(a) that the evidence should appear to be capable of belief applies more aptly to factual evidence than to expert opinion, which may or may not be acceptable or persuasive but which is unlikely to be thought to be incapable of belief in an ordinary sense. The giving of a reasonable explanation for failure to adduce the evidence before the jury again applies more aptly to factual evidence of which a party was unaware, or could not adduce, than to expert evidence, since if one expert is unavailable to testify at a trial a party would ordinarily be expected to call another unless circumstances prevented this. Expert witnesses, although inevitably varying in standard and experience, are interchangeable in a way in which factual witnesses are not. It would clearly subvert the trial process if a Defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury. If it is said that the only expert witness in an established field whose opinion supports a certain defence was unavailable to testify at the trial, that may be thought (save in unusual circumstances) to reflect on the acceptability of that opinion.’

[38] In that appeal the court did not regard the case for receiving the fresh evidence as a very strong one but concluded it was expedient in the interests of justice to do so.

[39] We have considerable reservations about receiving this evidence since it is difficult to describe it as adding anything to Professor Whitwell’s evidence other than the weight of a headcount. In particular, Dr Lawler, Dr Hunt and Professor Vanezis could have been called to give evidence at trial but, for reasons described by Lord Carlile in his evidence, a decision was taken not to call any of this evidence. Mr Martin-Sperry in cross-examination and final submissions was at pains to make clear that he did not criticise Lord Carlile’s decision. In our judgment he was right not to do so.

[40] Nevertheless we have read the written reports and heard the oral evidence of the witnesses. Save in respect of Professor Conway, whose evidence we shall deal with later in this judgment, we conclude it is expedient in the interests of justice that we receive it.

[41] Having received the evidence, the principles upon which this court should act in appeals involving fresh evidence are clearly set out in R v Pendleton [2001] UKHL 66, [2002] 1 Cr App Rep 34 (p 441), [2002] 1 WLR 72 by Lord Bingham of Cornhill (see in particular paras 18-19). They were repeated by Lord Brown of Heaton-under-Heywood in the Privy Council; Dial and another v State of Trinidad and Tobago [2005] UKPC 4, [2005] 1 WLR 1660, [2005] 3 LRC 609. In that case Lord Brown said (see paras 31 and 32):

’31 In the board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view ?by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict': R v Pendleton [2002] 1 All ER 524 at 19. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP [1973] 3 All ER 762, [1974] AC 878 at 906, and affirmed by the House in R v Pendleton:

‘While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]‘

32 That is the principle correctly and consistently applied nowadays by the criminal division of the Court of Appeal in England – see, for example, R v Hakala [2002] EWCA Crim 730, and R v Ishtiaq Ahmed [2002] EWCA Crim 2781. It was neatly expressed by Judge LJ in R v Hakala, at 11, thus:

‘However the safety of the Appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe’.’

[42] We should also refer to R v Kai-Whitewind [2005] 2 Cr App Rep 31 which is relied on by Mr Martin-Sperry. We have carefully read the judgment of the court in that case and are mindful of the general comments made in it about the court’s approach to an appeal involving expert medical evidence.

FURTHER BACKGROUND

[43] Before we deal with the fresh evidence which we have heard we need to set out in more detail the evidence relating to the original autopsy carried out by Dr Gordon and the evidence given at trial by Dr Armour and Professor Whitwell.

[44] As already stated Dr Gordon gave as the cause of death alcohol and valium poisoning. At the autopsy he took vaginal and anal swabs, something which all the pathologists described as unusual in a case performed by a hospital pathologist. Professor Milroy agreed that it indicated an elevated level of suspicion. Dr Gordon also caused histology slides from the lungs to be prepared. He did not record the results of the forensic examination of either the swabs or the slides. There is no dispute that recent examination of the former showed evidence of semen in the stomach and the anus. The judge ruled inadmissible evidence of semen in the anal swab. The slides of the lung showed signs of alveolar haemorrhaging and architecture collapse but these findings were not recorded in Dr Gordon’s report.

[45] Dr Gordon, importantly, recorded in his report that ‘no petechial skin haemorrhages, neck bruising or mucosal lip lesions were observed’. The report also shows a tick in the place reserved for identifying an internal examination of the mouth, tongue, oesophagus, larynx, trachea, lungs and pleurae. This signifies that the larynx was examined before Dr Gordon reached his conclusion that the larynx was ‘normal’. He recorded various injuries to the head and face including a deep seated scalp bruise 6cm by 4cm ‘in the right frontal area sustained at about the time of death’. The facial sketches made by him survive and were exhibits at the trial. He recorded the liver as slightly enlarged and showing much fatty change.

[46] There is also no dispute that although Dr Gordon described the larynx, trachea and main bronchi as normal he did not examine the neck organs. So much was clear from the autopsy carried out by Dr Armour and was accepted at trial and before us by the Appellant. It was on her examination of the neck organs that Dr Armour discovered what at trial were accepted to be fractures of the two thyroid horns. As to the cause of death, the toxicologist, Dr Hales, said the he only gave his opinion that the levels of alcohol and diazepam could have caused death after being assured by Dr Gordon that there were no other potential causes of death. In his autopsy report Dr Gordon recorded Dr Hale’s blood analysis for alcohol and diazepam in the terms previously referred to.

[47] Next, we turn to the evidence given at trial by Dr Armour. She had provided three reports pre-trial: two in the form of witness statements and one as a response to reports by Dr Lawler, instructed by the prosecution, and Professor Whitwell and Dr Hunt who were instructed by the defence. In short her opinion was that the fractures had occurred minutes before death. In her first report she gave as her reasons for this opinion the following;

‘The sites of the fractures to the thyroid cartilage are the typical sites associated with manual strangulation. Fractures to the hyoid bone are also a frequent finding usually in association with the fractured thyroid cartilage. As the skin of the neck had decomposed and there were no bruises or ligature marks noted at the first autopsy it is not possible for me to be absolutely sure that this was manual strangulation alone. Many cases of strangulation have an element of both, with clothing around the neck often being used as a ligature or part of the ligature. Internally the injuries from ligature strangulation can be similar although fractures to the hyoid bone are uncommon. However, I am in no doubt that death was due to strangulation with the site of these fractures to the thyroid cartilage typical of manual strangulation. The external and internal injuries associated with strangulation maybe few, particularly if death was rapid. Internal injuries to this region of the neck can be missed if the neck organs are not properly examined. It is my opinion that the findings were missed by the pathologist at the time of the first autopsy.’

She dismissed the levels of alcohol and diazepam as sufficient to cause death.

[48] In her second report Dr Armour referred to histological sections taken from the lung which showed intra-alveolar haemorrhages and areas of alveolar collapse and over insufflation (the latter two more commonly described as architectural changes or collapse of lung structures). She regarded these signs as ‘strong scientific supportive evidence for cause of death being strangulation’. At the hearing before us Dr Armour’s reliance on these latter changes was challenged as wrong and an over-statement. There was some evidence about this at trial and much evidence on it called before us .However the judge in his summing-up directed the jury to put that matter out of their minds and, in the end, Mr Martin-Sperry abandoned this criticism as a criticism referable to Dr Armour’s evidence at trial.

[49] In her third report Dr Armour stated that the factors relied upon by her to support her opinion that the fractures had occurred before death were:

‘. . . red blood cells in the fracture line, deficiency in the lining over the left superior horn, reddish discolouration around both fracture sites, bleeding into the surrounding tissues and the X-Ray findings.’

[50] She went on to describe the obvious significance of the finding that the fractures were ante-mortem before dealing with the main reason for the contrary view being put forward by Dr Lawler, Professor Whitwell and Dr Hunt namely Dr Gordon’s findings that there was an absence of petechial skin haemorrhages, neck bruising and mucosal lip lesions. She gave the following explanations for these absences:

1. That death was rapid and there was insufficient time to develop these lesions.

2. The face was congested/ purple and masked them.

[51] At trial the prosecution contended that the most likely explanation for the absence of the signs being found by Dr Gordon was that he had simply missed them. This was the explanation put forward by Dr Armour in her first report.

[52] These themes were developed by Dr Armour in her evidence at trial. They are the subject of the general criticism of her that she was too dogmatic in her opinions and failed properly to put the contrary views.

[53] Professor Whitwell gave the cause of death as ‘unascertainable’. Although in her evidence she was cautious about accepting that the thyroid horns were fractured, in this appeal it has not been argued that there is any doubt about those fractures. Professor Whitwell accepted that the red cells seen by Dr Armour were red blood cells. However she did not accept that the red blood cells necessarily occurred before death. She said that blood could ooze from fractures for some time after death. She accepted that if the fractures had occurred before death the most probable cause of them was compression of the neck. But she relied on the fact that Dr Gordon had recorded the absence of bruising and petechial haemorrhages as evidence that the fractures could have occurred after death. In her opinion in any case of manual strangulation these signs would invariably be present. She gave three possible explanations for the fractures being post mortem. They were that they could have occurred when the tissues were removed from the body; or if after removal Dr Gordon had palpated the small neck bones; or when the neck organs were placed in the body preparatory for burial. She said that generally the type of fractures identified by Dr Armour require fairly localised pressure in the area of the structure rather than a diffuse pressure. She pointed to the fact that there was academic evidence of fractures of the laryngeal structures occurring during autopsy and said that she herself had caused such a fracture.

[54] In cross-examination Professor Whitwell was asked about each of the three possibilities. In respect of the possibility of the fractures being caused by Dr Gordon palpating the bones, she did not dissent from the proposition that it would involve Dr Gordon palpating with both hands separately with sufficient force to fracture them. She agreed he would have had to have been very heavy handed to have done so. She said ‘I simply do not fully understand what has actually happened here’. She agreed that if Dr Gordon had caused the fractures he ought to have seen them and good practice would have required him to record this fact. Finally, she accepted that she was not happy with this explanation because she could not envisage any circumstances in which it could occur.

[55] She agreed that to fracture both thyroid horns at the same time would require firm constricted pressure on both sides of the neck at the relevant point and that it should not occur when the neck organs were removed in a block. As to the possibility that the fractures occurred when the neck organs were being placed in the body cavity she said that it could occur if the neck organs were roughly handled in lifting the block up and placing it in the body.

[56] She pointed out that the method used by Dr Gordon to remove the neck organs was one which was now the subject of guidelines to Home Office forensic pathologists outlawing this practice because of the risk of fractures.

[57] In respect of the red blood cells Professor Whitwell said that these did not show that the fractures occurred in life. In her opinion blood could continue to ooze from fracture sites long after death. She agreed that death due to inhalation of vomit because of the drugs could be excluded. If the death was related to the alcohol and valium in her opinion the most likely mechanism was depression of breathing but she would defer to the toxicologists. She agreed that if Mary Bowman was being moved around and her head was being moved during her last minutes that would make swallowing the tongue unlikely. She also agreed that if Mary Bowman was lying on her side with her leg straddled over a man and her face on a shoulder she would be more or less in the recovery position in which case she would be very unlikely to swallow her tongue. She said that the most common reason for fractures of the laryngeal structures before death was compression of the neck but she had serious doubts that the fractures were ante-mortem and was not happy with that diagnosis.

FRESH EVIDENCE

Lord Carlile QC Of Berriew

[58] Lord Carlile was a witness called by the court. He together with junior counsel, Mr Parry-Jones, represented the Appellant at trial. In 1998 he had defended the Appellant at his trial in Liverpool Crown Court on charges sexual abuse against his step-daughter, Kelly.

[59] He said that he was concerned about expert evidence throughout his dealings with the murder trial. He recalled attending a pre-trial consultation with Professor Whitwell and Dr Hunt in Sheffield. After that consultation Lord Carlile was under the impression that Professor Whitwell and Dr Hunt were of the opinion that there were no fractures of the thyroid cartilage and if there were, the fractures were probably artefactual and may have resulted from the first post-mortem. It was only at the trial that Professor Whitwell and Dr Hunt accepted for the first time Dr Armour’s view that there were fractures. This represented a considerable change of position.

[60] Professor Whitwell had not been available to attend the first day of Dr Armour’s evidence and so it was arranged that Dr Hunt should be at court for this part of the evidence. On 8 July 2002 Lord Carlile held an early morning consultation with Dr Hunt. In anticipation of this consultation, he had written in his notebook, ‘Where do we now disagree with Dr Armour?’ By then he realised that the confident written opinions of his expert pathologists were not going to be borne out in the witness box.

[61] Lord Carlile noted the major conclusion reached at this consultation in these terms:

‘Bilateral fractures to the thyroid cartilage are consistent with compression of the neck as in manual or ligature strangulation, but it does not necessarily mean that there was a fatal outcome. It would be very unwise to assume this was the case, bearing in mind the lack of physical signs. It was odd that the larynx was excised and preserved in formalin after the post-mortem if there was no suspicion as to the cause of death and no expectation of a second post-mortem.’

Lord Carlile regarded this view as deeply unhelpful to the Appellant’s case since it involved: i) an acceptance that there were or may well have been fractures; ii) the implication that the Appellant may have strangled his wife manually and briefly but not necessarily fatally, which was an unattractive proposition at best, and in any event totally at odds with the Appellant’s instructions; and iii) the recognition that at the original post-mortem conducted by Dr Gordon there may have been some incipient suspicion sufficient to lead to preservation of the relevant neck structures in formalin.

[62] Lord Carlile described Dr Armour as giving evidence with a significant degree of certainty as he had anticipated she would. Following her evidence the urgent question was which (if any) of the defence experts was willing to contradict Dr Armour’s evidence in relation to the fractures, their possible cause, and the cause of death.

[63] Lord Carlile held an end of day consultation with Dr Hunt on 8 July 2002. He also spoke to Professor Whitwell on the telephone. There was another consultation on the morning of 9 July 2002 with Dr Hunt and a toxicology expert. In his professional opinion his pathology experts were so ‘flakey’ that it would have been positively dangerous to call any of them other than Professor Whitwell. If Dr Hunt were called he would accept that there had been a violent grasp of the neck which of itself or in combination with other factors caused death by strangulation, and this was contrary to the Appellant’s instructions.

[64] Lord Carlile was asked in cross-examination why he did not put to Dr Armour Dr Hunt’s opinion that she was being far too dogmatic. Lord Carlile said that he based his cross-examination on what medical evidence the defence could present. In his view it would have been outrageous if he had put something based on a report which he did not believe was going to be sustained if the author were called to give evidence.

[65] Lord Carlile said that he had suggested that his instructing solicitor seek another opinion from Professor Vanezis because he was so troubled by the pathology evidence that he had. He confirmed that he did not have a consultation with Professor Vanezis. He did not follow up with Professor Vanezis his statement that he had seen cases of death involving people who had the same level of alcohol as Mary Bowman where no other substances were involved because the professor said in his report he was not a forensic toxicologist. Moreover, the view of Professor Vanezis that the injuries to Mary Bowman noted by Dr Gordon were consistent with two falls and could also have occurred in a struggle was inconsistent with the Appellant’s case. In Lord Carlile’s view to have called the professor would have been disastrous because he would have been left in an impossible situation so far as addressing the jury was concerned.

[66] Lord Carlile said that he did not contact Dr Lawler after Dr Armour had given evidence. In his view Dr Lawler’s report was entirely inconsistent with the Appellant’s instructions. He said that one had to remember that the expert evidence fell to be considered against the background of overwhelming other evidence of abusive behaviour by the Appellant of his family.

[67] Lord Carlile was asked about his decision not to call Dr Boakes. He said that in cross-examination of Diane he had elicited sufficient to enable him to construct an argument that her claimed recollection of what had occurred at the time of her mother’s death was ‘recovered memory’. Until this cross-examination there was no evidence to justify labelling Diane’s evidence in this way. He said that although the suggestion that Diane’s evidence was recovered memory was available he had real doubts that this was so. The reality was more probably that the counselling she had undergone had reawakened horrible memories in a mechanism very different from recovered memory techniques. Nevertheless, as soon as the issue arose, he advised that Dr Janet Boakes should be consulted as a matter of urgency. She produced a report that was served on the prosecution. The prosecution in turn served a report from Professor Brewin that expressed the view that Diane’s recollection was not recovered memory and stated that Diane’s memory processes were acceptable and explicable in conventional terms.

[68] In the event it was decided not to call Dr Boakes because it was thought that she would be liable to successful cross-examination by the prosecution in which event her views could not be used in the closing speech. Lord Carlile was also concerned that if he called Dr Boakes, the way would be open to the prosecution to adduce the Appellant’s conviction in 1998 for rape of Kelly.

Dr William Lawler

[69] Dr Lawler has been a Home Office Pathologist since 1984. Dr Lawler was retained by the officer in the case, DC Farrell, to advise the prosecution, but was not called to give evidence at trial.

[70] In his report dated 3 March 2002, served on the defence before the trial, Dr Lawler said:

(i) The sentence in Dr Gordon’s first autopsy report ‘No petechial skin haemorrhages, neck bruising or mucosal lip lesions were observed’ was the most important comment as far as interpretations were concerned. In a letter dated 10 February 2002 Dr Lawler had referred to these negative observations as the greatest obstruction to a successful prosecution for murder by strangulation. In the same letter Dr Lawler pointed out that Dr Gordon was clearly wrong not to examine the larynx. This error could be used to suggest that some of his other observations may also have been wrong.

(ii) The most likely explanation for Mrs Bowman’s death was that she died from manual neck compression, but the evidence did not allow for this conclusion to be reached beyond reasonable doubt.

(iii) In examining almost 900 victims of homicide, he had encountered only a single case where only very minor asphyxial features were found, where there were no marks externally on the deceased’s neck, but where there was clear damage, including bruising, within the neck structures indicating manual neck compression.

[71] When giving evidence before this court Dr Lawler maintained the opinion that given all the evidence available to him the most likely explanation for Mrs Bowman’s death was that she died from manual neck compression. Strangulation was a serious possibility, but he did not think that all of the pathology evidence he had read allowed that conclusion to be drawn beyond reasonable doubt. The presence of bruising or evisceration at the sites of the fractures was indicative of an injury in life. Dr Lawler would not have expected as much blood to have accumulated at the sites of the fractures, if those fractures had been caused at the post-mortem examination more than 48 hours after death. The toxicology (alcohol and valium) by itself was not likely to be the explanation for Mrs Bowman’s death. If there had been a fall against a surface such as the edge of a grate or fireplace, he would not have expected the pattern of the injuries that Mrs Bowman suffered. The use of facial diagrams struck Dr Lawler as extremely unusual in a routine autopsy. He said it was fair to criticise Dr Gordon for having ‘ticked’ the larynx as examined without having opened it.

Dr A C Hunt

[72] Dr Hunt was a consultant pathologist at Plymouth hospitals between 1971 and 1991. From 1991 he practised as an independent forensic pathologist. In 1997 he was appointed as Chief Pathologist for the International Criminal Tribunal for the former Yugoslavia. His CV showed that he was a very experienced and distinguished pathologist.

[73] Before the trial Dr Hunt had provided reports and letters to the defence dated 13 August 2001, 12 January 2002 and 13 June 2002. Since the trial Dr Hunt has provided letters, reports and statements dated 10 September 2004, 31 May 2005, 7 January 2006 and 18 January 2006.

[74] As we have said, Dr Hunt was present at the trial for part of the time when Dr Armour gave evidence, but was not called by the defence.

[75] In his report dated 13 August 2001 Dr Hunt referred to Professor Helen Whitwell as being:

‘of world repute and entirely orthodox in her practice of pathology . . . not only as a senior forensic pathologist but also a respected neuro-pathologist of international importance.’

[76] In his letter dated 12 January 2002 enclosing his report of the same date Dr Hunt wrote ‘the more I study Dr Armour’s report, the more I am worried about her dogmatic approach’. In the conclusions to that report Dr Hunt set out his opinion as to possible causes of death as follows:

(1) The cause originally given of alcohol and valium poisoning.

(2) The minor head injuries played a part in causing death in combination with the effects of alcohol.

(3) The minor head injuries and a violent grasp of the neck caused death in combination with the effects of alcohol.

(4) Death was caused by strangulation, as postulated by Dr Armour.

As to (4), Dr Hunt wrote:

‘if Dr Gordon’s observations are accepted, (4) is unlikely. It is worrying that Dr Armour does not refer in her report to Dr Gordon’s mention of the absence of bruising of the neck and of petechial haemorrhages.’

[77] However, in a letter of 13 June 2002 to the solicitors then representing the Appellant Dr Hunt wrote:

‘I enclose some further opinions in this case. I appreciate that my views, apart from allowing for some possibility of doubt, are not of great value to your client. Is it possible that the opinions of Dr Lawler, as a prosecution expert, might be sufficient to reduce the charge to one of manslaughter? After all, a short sharp compression of the neck might not be expected to cause death.’

[78] In the accompanying comments Dr Hunt wrote:

‘all along I have said that, in my view, the most likely scenario is that the deceased’s neck was compressed with considerable but short-lived force which was not sustained long enough to cause death from classical strangulation, but in a woman that had consumed drugs and alcohol, could well have contributed to her death. However, I do consider that there is some room for doubt.’

[79] It is hardly surprising that in the light of Dr Hunt’s letter and comments of 13 June 2002, he was not called to give evidence by the defence. The contents of the letter and comments serve to confirm the reason for not calling him given by Lord Carlile. In evidence Dr Hunt agreed that he was not surprised that he had not been called to give evidence on the Appellant’s behalf at trial.

[80] In his post trial report of 10 December 2004 Dr Hunt wrote:

‘my view has always been that a grasp of the neck was a possible, even probable, factor in the death of Mary Bowman, but that there room for doubt. This is expressed in my original report (12 January 2002, see paragraph 3.1.4).’

We do not consider that para 3.1.4 was to the effect suggested. Dr Hunt’s view was however clear by June 2002.

[81] When giving evidence before this court Dr Hunt was asked about his letter of 13 June 2002 and agreed that the Appellant probably caused the death of his wife, adding ‘my view throughout . . . is that is the probability. I would not go further than that’. Dr Hunt explained that although there were alternative explanations for the bilateral fractures of the thyroid cartilages, such fractures are not common. There are occasional exceptions to the fact that fractured thyroid cartilages are due to the gripping of the neck.

Professor Vanezis

[82] Professor Vanezis is Regis Professor and Head of Department of Forensic Medicine and Science at the University of Glasgow. He provided a report to the Appellant’s solicitors on 2 July 2002. He was however not called to give evidence for reasons explained by Lord Carlile.

[83] In his report of July 2002 Professor Vanezis referred to the original post-mortem examination by Dr Gordon. He said he would be surprised if there was no suspicion attached to the death initially. Such suspicion would account for the fact that Dr Gordon took vaginal and anal swabs, an unusual step in a routine coroner’s autopsy.

[84] In his report Professor Vanezis stated that he had carried out numerous autopsies on persons who had been strangled where the finding of petechial haemorrhages ‘is sometimes not an easy matter, bearing in mind that such haemorrhages may be faint and difficult to see’. This evidence (which the Professor maintained when giving evidence before this court) is of importance in that it provides support for Dr Armour’s contention that petechial haemorrhages may have been missed at the first autopsy.

[85] In his report Professor Vanezis referred to the diagram of the injuries noted to the front of the face and head of Mrs Bowman and said that these were in keeping with the head coming into contact with a flat surface such as the ground and would be consistent with perhaps two falls as a minimum. When giving evidence before this court Professor Vanezis explained that by falls he meant impacts.

[86] Professor Vanezis’ conclusions in his July 2002 report were as follows:

(1) The lack of petechial haemorrhages noted by Dr Gordon indicated that if there had been pressure on the neck this had not been prolonged in any way.

(2) Bilateral fractures to the thyroid cartilage were consistent with compression of the neck as in manual or ligature strangulation, but it did not necessarily follow that there was a fatal outcome.

(3) The level of alcohol and valium in the body was consistent with a fatal outcome. This could also be assisted by the airway perhaps being compromised, if the body was in a position such as face down giving rise to a degree of postural asphyxia.

(4) Dr Gordon’s opinion on the cause of death was valid, but

(5) It was regrettable that the larynx was not opened and examined in detail.

[87] When Professor Vanezis gave evidence in this court the Appellant’s account at trial was put to him. Professor Vanezis said that apart from the injury on the inside of the scalp he would be happy with that account. We consider that the injury on the inside of the scalp is of importance in the overall context of the case.

Dr Cary

[88] Dr Cary is a full time consultant forensic pathologist accredited by the Home Office. In the past he practised for nearly ten years as Consultant Cardiac Pathologist at Papworth Hospital.

[89] At the request of Merseyside Police he provided a report dated 3 May 2005. He provided a further report dated 9 February 2006.

[90] In his report of May 2005 Dr Cary said that in 1978 there was a fairly detailed description of injuries, mainly abrasions to the facial area and a large area of bruising to the frontal area of the head. Such findings taken together with Mary Bowman’s relatively young age in retrospect would constitute the sort of evidence that should have made this case ‘suspicious’ from the outset. There were a number of clearly stated negatives namely a lack of petechial haemorrhages to the skin, a lack of neck bruising and a lack of injury to the larynx. However the reliability of this latter observation and by inference any of the other positive or negative findings was clearly called into question by the finding of an un-dissected larynx at the second post mortem examination. Some post mortem-reports, particularly when made by non-forensic pathologists, may give a misleading impression as to the nature and thoroughness of the post-mortem examination itself.

[91] In the same report Dr Cary set out the following overview and opinion. Looked at in isolation the original cause of death of alcohol and valium poisoning cannot be excluded. Manual strangulation was both possible and plausible as a cause of death. He saw no way of concluding that it must have been the cause of death. On the basis of the evidence available there is nothing to suggest that sustained compression of the neck occurred. In particular there was an absence of asphyxial changes described in the facial skin and eyes of the kind where confidence in a diagnosis of compression of the neck as a cause of death increases. In his opinion because of the incompleteness of the pathological evidence it would not be appropriate to advocate one of the several possibilities strongly. The cause of death should be recorded as unascertainable. He however said by way of conclusion:

‘it is my opinion that on the basis of the evidence available it is likely that there was third party involvement in the circumstances in which death took place’.

[92] When giving evidence before this court Dr Cary qualified the reference to third party involvement quoted above by adding ‘though not necessarily in the cause of death’. He said that his evidence added weight to the proposition that it would be unsafe to make a dogmatic statement that the cause of death was strangulation. As to the injuries to the face, Dr Cary said that there was rather more on the face than with many simple falls forwards. He agreed that petechial haemorrhages can be quite subtle and that in general terms it would be possible to miss a few.

Professor Milroy

[93] Professor Milroy has been a Home Office pathologist since 1992. He was appointed Senior Lecturer in Forensic Pathology at the University of Sheffield in 1991, becoming Reader in 1999 and Professor in 2000.

[94] Professor Milroy provided 4 reports and statements on the instruction of the Appellant’s solicitors dated 29 September 2004, 30 January 2006, undated three pages and 13 February 2006. When Professor Milroy was first instructed in August 2004 the transcripts of the evidence of Dr Armour and Professor Whitwell at trial were not available. His first report (September 2004) addressed Dr Armour’s pre-trial reports and not the evidence given at trial.

[95] Professor Milroy’s conclusions in his first report were as follows. The cause of death should be recorded as ‘unascertained’. Whilst the fracturing of the superior horns of the thyroid cartilage could be due to manual compression of the neck, the absence of other evidence associated with manual strangulation is against such a diagnosis. Fractures of the thyroid cartilage may not result in death. Cases are encountered where people clearly have sustained injuries to their laryngeal cartilages and have died of another cause. The toxicology results raise a strong possibility of an alternative cause of death.

[96] In his undated report Professor Milroy said he had never seen a case of a fresh body, where he had diagnosed manual strangulation, where there was no neck bruising, no petechiae and no external damage to the skin, but isolated fractures.

[97] Professor Milroy’s oral evidence before this court included the following. He had discussed the case with Professor Whitwell before she gave evidence at trial. He did not have any specific criticisms of her evidence. When asked what he brought to the case that Professor Whitwell did not, he mentioned four matters:

(i) The recent paper ‘Laryngohyoid fractures after agonal falls: Not always a certain sign of strangulation’ by R Bux et al.

(ii) His opinion as to whether bilateral fractures can be caused artefactually. In this connection he referred to the paper entitled ‘Histologic appearance of fractured cartilage and surrounding tissues’ by Rajs and Thiblin which was the subject of evidence at trial, given by Professor Whitwell.

(iii) His response to cases referred to by Dr Armour involving bilateral fractures of the laryngeal cartilages without other signs.

(iv) His point that a person can sustain bilateral fractures of the neck and survive them.

In the circumstances of the present case a pathologist should not be dogmatic and say with certainty that any one possible cause of death is correct. Dr Gordon conducted an incomplete autopsy and the failure to examine the larynx was incompetent.

[98] Professor Milroy accepted that in the conclusion to his first report he was indicating that Dr Armour might be right, the difference between them being one of degree or weight.

[99] Professor Milroy accepted that Dr Gordon could not say that the larynx was in normal if he did not examine it. Further the fact Dr Gordon took swabs from the stomach and anus almost certainly indicated an elevated level of suspicion. The taking of swabs was a most unusual feature. Further the fact the neck was preserved in formalin was another indicator of an elevated level of suspicion. Professor Milroy said that if the fractures were caused in life, within probably an hour or two of her death Mrs Bowman had sustained some compressive trauma to her neck.

[100] At the conclusion of his evidence Professor Milroy referred to two real possibilities being the original cause of death given by Dr Gordon and manual strangulation.

[101] Professor Milroy completed his evidence on 8 February but provided a further (fourth) statement dated 13 February in answer to three questions, the first being – Can death from alcohol and valium by depression of the central nervous system by their toxic effect cause the changes found in the lungs in the case of Mary Bowman? He answered the first question by referring to literature on people dying from central nervous system depressants related to morphine/heroine deaths and in particular by referring to a paper by Grellner and others, ‘Pulmonary Histopathology and Survival Period in Morphine-Involved Deaths’ (which in turn referred to a paper by Grellner and another, ‘Pulmonary Micromorphology in fatal strangulations’). Professor Milroy was recalled on 14 February so that he could be questioned about his fourth statement. Professor Milroy accepted that there was no published paper suggesting that alcohol and valium in combination caused changes in the lungs. He further accepted that he should have referred to this in answering the questions addressed in his statement of 13 February.

[102] The above evidence was directed towards a criticism of Dr Armour’s reliance on histology slides showing changes to the deceased’s lungs which she said in her witness statement and in evidence provided strong supporting evidence for the cause of death given by her. She relied on a paper by Brazilian doctors published in the United States of America. At trial Professor Whitwell had criticised the paper and Dr Armour’s reliance on it. Dr Armour had accepted that there was criticism of this paper but adhered to her opinion. At the hearing before us a good deal of time was taken up investigating this issue. In the end Mr Martin-Sperry did not pursue the criticism of Dr Armour’s reliance on this paper at trial although he did rely on it as a criticism of her evidence post trial.

Professor Crane

[103] Professor Crane is the State Pathologist for Northern Ireland, Professor of Forensic Medicine at the Queen’s University of Belfast and a consultant in pathology to the Northern Ireland Health and Social Services Boards.

[104] Professor Crane provided a report dated 4 April 2005 at the request of the Appellant’s solicitors. At the outset of his report he listed the materials he had considered, which did not include the transcripts of the evidence of Dr Armour and Professor Whitwell at trial.

[105] Professor Crane’s opinion in his report was as follows. This would have been an extremely difficult case even for an experienced forensic pathologist. Most pathologists see only a relatively small number of cases of strangulation each year and exhumations are uncommon. Any interpretation of findings as indicative of ante-mortem injury would need to be guarded. Dr Armour was dogmatic in her diagnosis of strangulation, basing this on the laryngeal injuries and the changes in the lungs. This opinion cannot be justified on the available evidence and does not reach the standard of proof required for criminal proceedings. Professor Crane had never carried out an autopsy where strangulation was believed to have occurred without finding petechial haemorrhages. Injuries on the skin of the neck in the form of small areas of bruising or abrasions, possibly due to fingernails, are again always present in cases of manual strangulation and are often associated with bruising in the underlying soft tissues and muscles. Further the laryngeal fractures were problematical. It is entirely plausible that this occurred during or after the post-mortem examination. It is also entirely feasible for leakage of blood to occur into the neck structures at the time of autopsy during their removal. Dr Armour’s comment to the effect that the changes in the lungs were ‘typical of those changes seen in strangulation’ was misleading and completely unjustified. Histological changes in the lungs are meaningless in the context of strangulation and should not, under any circumstances, be used to justify such a diagnosis.

[106] When giving evidence before this Court Professor Crane agreed that his report was based on the material that was submitted to him. It did not include anything about Professor Whitwell’s evidence. It did not include anything about what Dr Armour said at trial; he had simply seen her pre-trial statements. Professor Crane added the following when giving evidence. In general people who fall do not fracture their larynx. The account which Mr Bowman gave in interview in the present case described a mechanism that was unlikely to cause the injuries found.

A GENERAL COMMENT ON THE FRESH EVIDENCE OF THE PATHOLOGISTS CALLED BY THE APPELLANT

[107] We accept that all the above pathologists did their best to assist the court. However, in assessing the value of their evidence we cannot help but observe that their criticisms of Dr Armour were largely based on her witness statement reports and not by reference to her evidence at trial. Further, none of them appeared to have read the evidence of Professor Whitwell given at trial; or, if they had, none referred to that evidence. In our judgment their evidence has to be viewed in the light of these deficiencies.

[108] We shall have more to say about the preparation of expert reports at the end of this judgment.

The Specific Criticisms Of Dr Armour

[109] Mr Martin-Sperry in his closing submissions made five specific criticisms of Dr Armour’s evidence and a further four criticisms of her evidence prepared post-trial for the purpose of this appeal. The specific criticisms of her evidence were that she overstated the case for the prosecution in the following ways:

1. In her pre-trial witness statements she wrongly overstated the case for the cause of death being manual strangulation. As we understand this submission it is that Dr Armour failed to acknowledge the following:

(a) that if the fractures had occurred before death they might have been caused by the momentary grasping of the deceased’s neck by the Appellant at some earlier stage;

(b) if the fractures had occurred before death they might have been caused by force falling short of such force as was necessary to infer an intent for murder;

(c) the possibility that the fractures had been occasioned by a fall;

(d) the fractures could have been artefactual having occurred during a blind removal of the neck by Dr Gordon in the course of the autopsy carried out by him;

(e) similar artefactual fractures could have occurred during the replacement of the neck into the body cavity. Included in this criticism is a failure to draw attention to the possibility that the red blood cells seen on the histology slides could have been caused by contact with a pool of blood during the course of this action;

(f) other mechanisms of death (unspecified) put forward by various pathologists in combination with a fall or artefactual fractures.

2. In evidence Dr Armour failed to draw attention to the possibility that death might have been caused by the combination of drugs and alcohol; and in particular failed to consider that death might have been due to postural asphyxia and/or that the levels of alcohol and drugs had been under-recorded.

3. Dr Armour incorrectly stated that an agonal fall could not produce bilateral fractures of the thyroid horns.

4. She incorrectly stated that the bilateral fractures of the thyroid bones could not be caused by the removal of neck organs from the body.

5. Dr Armour incorrectly stated that in carrying out his autopsy Dr Gordon must have missed the expected signs of strangulation through incompetence.

[110] We have already referred to the evidence of Dr Armour in some detail. In considering these criticisms it is in our judgment important to look at them in the context of all the evidence given at trial including, in particular, the evidence of Professor Whitwell. The crucial issue for the jury to decide was whether or not the fractures had occurred before the death of Mary Bowman or after her death. The case for the prosecution was a simple one on this issue. It was that Dr Gordon had missed these fractures because he failed to examine the larynx. Further he had failed to see the petechial haemorrhages or injuries to the throat which would be expected to present in cases of manual strangulation because his examination was not competently carried out.

[111] The case for the defence was that Dr Gordon, an experienced and careful pathologist although not a Home Office appointed Forensic Pathologist, recorded the absence of external signs which invariably occur in cases of strangulation. It follows that the jury could not be sure that the cause of death was manual strangulation.

[112] This issue was to be decided, as the judge made clear, not just on the evidence of the pathologists but all the evidence in the case.

[113] The first criticism of Dr Armour groups a number of factors together. The first two factors (1(a) and 1(b)) raised the possibility of a defence to murder but not manslaughter. The question of the force necessary to cause the fractures was the subject of evidence by both pathologists. In her witness statement of 13 March 2002 Dr Armour stated:

‘The significance of ante mortem fractures to the neck means that there was some violence to this region. This would include a fall onto the neck, a momentary grasp of the neck, during the resuscitation process or due to strangulation. There was no history of Mary Bowman falling or striking her neck. It is not known if Mary Bowman was resuscitated but in my experience this is most unlikely to cause fractures at this site. This leaves strangulation or ‘momentary grasp’ of the neck. Whatever the terminology both of these terms imply a violent attack to the neck. These are fractures. They are typical sites associated with strangulation.’

For obvious reasons Dr Armour was not cross-examined on the amount of force necessary to cause fractures in a living person. It was never the Appellant’s case that he had grasped the deceased’s neck momentarily or otherwise. However, Dr Armour was asked about the force necessary to cause fractures of the thyroid bones at post-mortem. The judge summarised that evidence in summing-up as follows ‘. . . it is common ground that whether you can sort of call it considerable compression force or firm force was required to produce it’. It is clear from the passage in her witness statement above and the summing-up that Dr Armour did deal with the possibility of a momentary grasp of the deceased’s neck and the necessary force to cause fractures. The judge directed the jury on the possibility of a verdict of manslaughter. These criticisms are unfounded.

[114] Next the criticism, 1(c), that Dr Armour failed to refer to the possibility that the fractures could have been caused by a fall can be coupled with criticism three which focuses on the possibility of an agonal fall (that is a fall occurring at the time of death).

[115] In the passage in her third witness statement to which we have already referred Dr Armour mentioned the possibility of a fall causing the fractures. She records that there was no history of her falling or striking her head. Mr Martin-Sperry sought to persuade us that Dr Armour ought to have taken into account material contained in a witness statement dated 5 March 2001 made by the deceased’s brother, James Whelan. In that statement James Whelan said that the Coroner’s Officer had told him that Mary Bowman had fallen and banged her face thereby causing serious injuries to it. It is submitted that Dr Armour should have taken this evidence into account which, coupled with the evidence of the deceased’s consumption of alcohol and diazepam, raised the possibility of the fall causing her death. In evidence before us Dr Armour said that she had not seen that statement. We have no reason to disbelieve her evidence on that issue.

[116] As to the possibility of an agonal fall causing death, witnesses called on behalf of the Appellant relied on a recent paper by RBux et al entitled ‘Larygohyoid fractures after agonal falls: Not always a certain sign of strangulation’ published in Forensic Science International in July 2005. That paper described cases in which two adults (one male and one female) suffered bilateral thyroid cartilage fractures as a result of agonal falls. The first adult fell as a result of a heart attack. The second adult suffering from a mobility handicap fell from a two metre high lifting platform and was found in a prone position with her wheelchair on top of her. Each sustained injuries to the face and the body of greater severity than those seen on Mary Bowman. Each had bilateral fractures of both thyroid cartilages but with an absence of petechial haemorrhages or external signs of injury to the neck. The pathologists called in this appeal on behalf of the Appellant referred to the possibility of a fall of the nature described in this paper as a cause of the fractures to Mary Bowman.

[117] Dr Armour said that this paper had no real application to the evidence surrounding the circumstances of Mary Bowman’s death.

[118] In our judgment this paper does not undermine Dr Armour’s evidence. We accept her evidence that the circumstances in this case and the injuries to Mary Bowman’s face recorded by Dr Gordon are quite different to the facts recounted in the two cases the subject of the Bux paper. No such fall as occurred to the two adults in the Bux paper was described by the Appellant in his evidence at trial. As we have already observed Dr Armour in her first report did consider the possibility of a fall and rejected it as a possible cause of the fractures.

[119] We take next the criticisms at 1(d), (e), and 4. These all relate to the possibility that the fractures could have been caused artefactually by Dr Gordon when carrying out his autopsy. If he may have in some way caused the fractures during his autopsy there would, of course, have been no signs of petechial haemorrhages or external injuries to the neck. These criticisms raise in sharp form the main issue in the pathology evidence, namely whether the fractures occurred before or after death. As already noted Dr Armour’s evidence was that the finding of the red blood cells at the fracture sites indicated that the fractures occurred before death. Dr Armour in her witness statements and evidence explained that in her opinion the blood at both fracture sites could not have oozed out of the fractures if they had arisen at the autopsy carried out by Dr Gordon. She said that the time interval of 56 hours since death was too great for there to be a possibility that blood could ooze from the fractures if they had occurred at the autopsy.

[120] Professor Whitwell disagreed. She said blood could ooze from the site of a fracture occurring after death for many hours or days. In this opinion she was supported by other pathologists including Professor Milroy and Dr Vanezis. Dr Lawler, on the other hand, made it clear that in his opinion it was very unlikely that blood could ooze from a fracture occurring 48 hours after death. Hence the opinion expressed in his witness statement of 3 March 2002:

‘In this case, I am entirely satisfied that Dr Armour has identified fractures of both superior horns of the thyroid cartilage of the larynx, and, furthermore. I believe that she has also demonstrated intact red blood cells at the fracture sites. If these are, indeed, intact red blood cells, then I have considerable difficulty in accepting that the laryngeal fractures would have been caused by rough handling during the first post mortem examination which took place over 48 hours after death.’

[121] We were told by a number of witnesses that there has been no medical research into the time after death when blood will cease to ooze from fractures occurring post mortem. Each pathologist spoke of his or her own experience on this topic. In the circumstances we see no basis for criticising Dr Armour for expressing the opinion that the presence of red blood cells in this case indicated the fractures occurred in life.

[122] As to the question of whether or not the fractures could have been caused by Dr Gordon when removing the neck organs or when they were replaced in the body cavity, Professor Whitwell was cross-examined closely on the possibility of this occurring. We have set out earlier a summary of her evidence on this topic. We note that none of the pathologists called on behalf of the Appellant in this appeal dealt with evidence given by Professor Whitwell on this topic. We observe that in view of her evidence on this topic the jury would be entitled to regard it, to say the least, as a very unlikely coincidence that both thyroid horns had been broken during the course of Dr Gordon’s autopsy.

[123] Finally on this issue Dr Cary raised an entirely new possible explanation for the red blood cells. He said that when the neck organs were returned to the body cavity after the autopsy they might have been contaminated by a pool of blood around the neck.

[124] We have very great reservations about this theory. It did not feature as a possibility in the reports of any of the pathologists including Dr Cary. None save Dr Lawler made any comment on it. Dr Lawler said that it had never occurred to him. The possibility of it occurring might seem to be unlikely bearing in mind the fact that the neck organs were buried as a block. In our judgment this theory smacks very much of an after-thought.

[125] In respect of these criticisms we are wholly unpersuaded that Dr Armour overstated her opinion. It was stated as an opinion and she gave the reasons for holding it. Much of her evidence and that of Professor Whitwell was devoted to this issue. They disagreed. It was left to the jury to decide the issue not just on the pathologists’ evidence but on all the evidence in the case.

[126] Next, we deal with criticism two that Dr Armour failed to draw attention to the possibility that the deceased’s death might have been caused by the consumption of a combination of alcohol and drugs. In this connection she is also criticised for failing to consider that death might have been due to postural asphyxia and that the levels of alcohol and drugs found in the deceased’s blood might have been under-recorded.

[127] We can deal with this criticism shortly. In her third witness statement Dr Armour referred to the question of other possible causes of death in the following terms:

‘In my original Statement I addressed other possible causes of death – toxicological and blunt trauma to the head. To reiterate I am not a Toxicologist but discussed the toxicological findings at the time of the exhumation with a Forensic Scientist. As a Pathologist I would doubt that this combination of alcohol and Valium, in this case, would cause death but for a definitive and expert opinion a Toxicologist would provide an authorative view that death was due to blunt head trauma. There is no evidence to support this diagnosis.’

[128] From that passage it is clear that Dr Armour raised the possibility of death being caused by the ingestion of alcohol and drugs. She expressed her opinion that alcohol and valium were not the cause of death but invited the views of a toxicologist. Before us, Professor Milroy said that a pathologist is entitled to express a view on whether drugs and alcohol were a cause of death. In any event at trial, as Dr Armour knew, the prosecution called both a toxicologist and a pharmacologist. Both would have been qualified to express opinions on this issue. They would also have been in a better position to deal with the question of whether or not the levels of alcohol and diazepam in this case might have been under-recorded. In our judgment this criticism is not made out.

[129] The fifth criticism is that Dr Armour incorrectly stated that in carrying out his autopsy Dr Gordon must have missed the expected signs of strangulation through incompetence. This criticism raises the issue, much canvassed at trial and before us that Dr Gordon had carried out the autopsy carelessly and incompetently.

[130] Mr Martin-Sperry in the course of his cross-examination and submissions submitted that there was no basis for saying Dr Gordon had acted incompetently. He submitted Dr Gordon’s findings should be taken at face value. His explanation for Dr Gordon’s failure to examine the neck organs is based on evidence given by Dr Lawler. Dr Lawler speculated that Dr Gordon might have spoken to a colleague, Dr Benstead, about the neck organs as a result of which he caused them to be put in formalin. Further, when he got the report from Dr Hales he may have concluded that there was no need for any further examination of the neck organs. Mr Martin-Sperry accepts that this is all speculation but he submits that bearing in mind these events took place in 1978 and Dr Gordon is dead, it is not unfair speculation.

[131] In our judgment Dr Armour and the prosecution were quite entitled to maintain that Dr Gordon had acted incompetently when carrying out his autopsy. There was evidence on which it could properly be said that he approached his autopsy with what Professor Milroy described as an elevated sense of suspicion. All the experts regard his collection of the vaginal and anal swabs as unusual; some said it was very unusual. Having done so he did not record the results of the forensic tests. At trial, Professor Whitwell agreed that this was inadequate. She also accepted that his failure to record the results of the histology was not good practice. Professor Milroy accepted that Dr Gordon’s comment that there was nothing abnormal in the neck structures when he had not examined them was ‘sub-optimal’ or less than best practice. Professor Vanezis regarded Dr Gordon’s failure to open and examine the larynx as regrettable. Without going further in our judgment Dr Armour was on this basis quite entitled to form the opinion that Dr Gordon had not carried out his autopsy in a competent manner despite the careful notes which he made.

[132] On the question of whether or not this should have been treated as a suspicious death, Dr Armour’s evidence was that it should have been. Dr Lawler, whose experience as a pathologist in the geographical area in question stretches back for some years, said that there was a practice which involved the police asking a hospital pathologist to carry out an autopsy on a case which might be a suspicious death. He described this as a sort of half-way procedure between a full Home Office Forensic Pathologist’s autopsy and a routine coroner’s autopsy.

[133] Our conclusion is that there were sufficient grounds for Dr Armour to put forward the proposition that this ought to have been treated as a suspicious death. The fact that the Coroner’s Officer did not regard it as a suspicious death in our opinion was no reason for Dr Armour to reach a different conclusion.

[134] In summary, in respect of these specific criticisms we conclude that the submissions that Dr Armour had overstated her reasons for arriving at the cause of death are not made out.

[135] As to the criticisms of Dr Armour in respect of matters arising after the trial, in our judgment they are of no relevance to this appeal. Mr Martin-Sperry as, we understand it, seeks to rely on these criticisms as bolstering his submission that they show Dr Armour as persisting in her mistaken and dogmatic opinions. We have examined these criticisms. Having done so we see nothing in them to change the views which we have already expressed in respect of the specific criticisms relating to her evidence at trial.

Nicole Lewis

[136] One important criticism remains. It relates to a passage in Dr Armour’s evidence when she gave an example from her own experience of a case of manual strangulation where there were no signs of petechial haemorrhages to the face and no signs of external injuries to the neck. Although not named in evidence there is no dispute that this example relates to an examination carried out by Dr Armour on behalf of a Defendant on his deceased partner, Nicole Lewis. Dr Armour was instructed by solicitors acting for Nicole Lewis’ partner. He was the subject of a criminal charge and his solicitors informed Dr Armour in their instructions that he had confessed to strangling Nicole Lewis.

[137] When answering questions from Mr Edis QC about this example Dr Armour said that marks on the neck were absent and that there were no petechial haemorrhages other than in the conjunctivae (the inside of the eyelids) and the underside of the lip. In cross-examination she repeated these answers with no material differences.

[138] For this appeal the underlying documents in respect of the pathological evidence in that case have been disclosed. The Home Office Forensic Pathologist, Dr Johnson, in his report gave the cause of death as asphyxia. It is also clear from his final report that in his findings he described petechial haemorrhages visible on the skin around the eyelids and on the conjunctivae. He said that his findings were consistent with the Defendant’s account of gripping the upper neck/lower face with one hand and excluding the external airway with the other. He said there was no evidence of forceful compression of the deep neck structures (ie strangulation).

[139] Professor Milroy when asked to comment on Dr Johnson’s report said firmly that the case could not be described as one of manual strangulation.

[140] In evidence in this appeal Dr Armour was pressed to explain how she could have put this case forward as one of strangulation; and how she could have said that there was no evidence of petechial haemorrhages to the face. It was pointed out to her that in her report on this case she had recorded petechial haemorrhages to both eyelids upper and lower and a bruise to the neck. She explained that the petechial haemorrhages were in the conjunctivae and that she herself would have described the bruise as an injury to the face. She had not seen the final report of Dr Johnson but in his first report he had described the bruise as on the neck and she had adopted this description although she did not agree with it. The bruise in fact was on the jaw line. She herself had always regarded this case as a case of manual strangulation particularly since the Defendant had confessed to strangling Nicole Lewis. She said that at the trial she was giving her answers in the context of there being no recorded injuries to Mary Bowman’s neck. She wished now that she had explained that Nicole Lewis’ injuries were bruises to the angle of the jaw. In her mind they were not bruises to the neck.

[141] Mr Martin-Sperry strongly criticised Dr Armour’s evidence on this matter at trial and before us. He submitted that in respect of it she had misled the jury on an important matter which was introduced to bolster her evidence. In his closing submissions he submitted that it was ‘inconceivable that any other competent and honest pathologist would have given evidence in like fashion on this topic’.

[142] We say at once that having seen Dr Armour give evidence on this topic we are quite satisfied that she did not intend to mislead the jury. Mr Edis concedes that ‘it would have been better if she (Dr Armour) had mentioned bruising to the jaw line’ rather than stating that there was no bruising to the neck. We agree. Dr Armour also accepted that her evidence that there were no petechial haemorrhages on the skin was inaccurate in that there were such haemorrhages on the skin of the upper eyelids although there was none on the face.

[143] Nicole Lewis did not represent a typical case of strangulation. In our opinion if Dr Armour was going to give this case as an example of death by strangulation where there were no signs of bruising or petechial haemorrhages she should have made clear that the case was not a straightforward case of manual strangulation, in particular because there were no laryngeal fractures. She ought also to have stated that there was bruising on the jaw line and that there were petechiae on the skin of the upper eyelids.

[144] We have to consider whether our conclusions on this topic affects our general conclusions on Dr Armour’s evidence at trial and the criticisms made of her. Having seen her give evidence before us we collectively formed the opinion so far as we could that she was a competent and careful pathologist. She was certainly a good witness. We have rejected the specific criticisms made of her and despite our conclusions on the topic of Nicole Lewis we see no reason to revise those conclusions. In the circumstances we are satisfied that this aspect of her evidence does not undermine our conclusions on the specific criticisms made of her.

[145] We shall consider later in this judgment what effect her evidence on this topic and our conclusions on it may have on the safety of the convictions.

THE GENERAL CRITICISM OF THE PROSECUTION’S PATHOLOGY EVIDENCE

[146] In this section of our judgment we deal with that part of the ground of appeal in which it is submitted that Dr Armour’s cause of death was one which no reasonable pathologist could hold. This submission is different from the specific criticisms of Dr Armour because it is submitted that whether or not Dr Armour overstated her reasons for concluding that the cause of death was manual strangulation, every pathologist whom the defence have approached disagrees with her. Therefore the verdicts are unsafe. There is, of course, a considerable overlap between this aspect of the appeal and the specific criticisms of Dr Armour.

[147] At this point it is instructive in our judgment to see how this issue was dealt with by the judge in his summing-up. He gave a full and fair account of the evidence of Dr Armour and Professor Whitwell. He underlined Professor Whitwell’s reliance on Dr Gordon’s autopsy report in which it was stated that there were no petechial haemorrhages, such haemorrhages being a good indication of asphyxia; no neck bruising; and no mucosal lip lesions. He described these findings as ‘. . . rightly relied upon (by Professor Whitwell) as deserving great weight’ adding ‘. . . this is on the assumption that they are accurate’.

[148] Later in his summing-up he summarised the issues in the following way:

‘. . . the issues may not be quite as complex as you might thought have appeared first . . . first thought. Are you sure that the damages to both horns of the thyroid cartilages are fractures? If you are sure, it is common ground that whether you can sort of call it considerable compressive force or firm force was required to produce it.

Secondly, are you sure that they were caused before death or could Dr Gordon in some clumsy fashion have used such force to cause both fractures in the moving or handling the block of organs which included the entire neck structure?

Thirdly, if you are sure that Dr Gordon didn’t cause these fractures, are you sure that the Defendant did? And furthermore that these fractures were a substantial cause of death?

Dr Amour was prepared to express the conclusion that death was by strangulation. There’s no suggestion that her . . . Mary Bowman’s handling from the . . . from 16 Sudworth Road in the ambulance to the hospital or anything that happened to her in the hospital before the post-mortem would have caused these fractures that’s why I put two possibilities.

Professor Whitwell took the view that she could not reach a conclusion as to whether the fractures were before death. She said ‘I don’t know. I have serious doubts’ she said. She called the cause of death as unascertainable and if you have reasonable doubts, of course so must you. Unless you are sure that these fractures were caused by the Defendant, then this case in murder doesn’t even start. You must also be satisfied so that you are sure that the fractures were a substantial cause of death.

Finally, because Lord Carlile specifically mentioned the possibility that he’d put his wife’s chin up to open an airway in a proper attempt to resuscitate he might have compressed both horns of the cartilage, you have to be sure whether for murder or manslaughter that such force as was required to produce the fractures was not inflicted accidentally in an attempt to resuscitate. Do you follow.

In asking these questions in this way I am not ignoring or excluding the evidence of the toxicologists to which I shall now turn and I remind you that you ask these questions not merely based on the opinions of the experts whose evidence you are free to accept or reject but also the rest of the evidence in the case.’

As we have already said, and this passage in the summing-up makes clear, the central issue at trial on the pathology evidence was when did the fractures occur? That to a very large extent depended on the accuracy of Dr Gordon’s autopsy report. Again as we have already said this was an issue of fact for the jury to decide on all the evidence including the evidence of the pathologists.

[149] We have set out in some detail the evidence which we have heard from all the pathologists called on behalf of the Appellant whether available at trial or whether subsequently instructed to prepare reports for this appeal. In this respect we have made no distinction between the two groups.

[150] There can be no doubt that although these pathologists would not have given the cause of death as manual strangulation with the certainty expressed by Dr Armour, the majority would, as did Professor Whitwell, have said that the cause of death was unascertained. However, a number expressed with varying ranges of probability the view that the cause of death was probably some forceful compression of the neck. Dr Lawler said that the most likely explanation for Mary Bowman’s death was manual neck compression. Dr Hunt said that the most likely scenario was that the deceased’s neck was compressed with considerable short-lived force. In evidence he expressed the opinion that the Appellant probably caused the death of his wife. Professor Vanezis, whilst maintaining the view that the cause of death could have been as Dr Gordon described, said it was reasonable to conclude it was unascertained if one could not make up one’s mind between compression of the neck or due to alcohol and diazepam.

JUDGMENT-2:
[151] Dr Cary was of the opinion that manual strangulation was both possible and plausible. He pointed out there was nothing to suggest sustained compression of the neck. He did express the opinion that it was likely that there was third-party involvement in the circumstances in which death occurred although in evidence he qualified this by saying third-party involvement was not necessarily involved in the circumstances in which death took place.

[152] Professor Milroy agreed that if the fractures were caused in life within an hour or two of her death Mary Bowman had probably sustained some compressive trauma to the neck. Professor Crane based his opinions very much on the findings of Dr Gordon as set out in his autopsy report. He maintained his view that the cause of death should be ‘unascertained’.

[153] Much of the evidence in this court has been addressed to the issue of whether or not the fractures were caused before or after death. We have already discussed this topic when dealing with the specific criticisms of Dr Armour. It is in our view significant that none of the pathologists called before us commented on Professor Whitwell’s evidence at trial on this issue. None had transcripts of the evidence before writing their reports. This is not surprising since the transcripts were not available at the time their views were being sought. It is not certain which of them had transcripts of either Professor Whitwell’s evidence or Dr Armour’s evidence at any time before giving evidence before us. None save Professor Milroy referred to that evidence. The jury was directed to resolve this factual issue on all the evidence. Obviously prominent in their deliberations would be the pathology evidence and the descriptions given by Professor Whitwell as to how the fractures could have occurred at the autopsy carried out by Dr Gordon. We have already referred to her evidence on this topic. We note that she was not very happy with the explanation that Dr Gordon had caused the fractures. We also note her opinion that if he had caused the fractures at autopsy he ought to have seen them and noted them.

[154] It is also clear that the views of the experts whom we heard in many respects were based on an acceptance of Dr Gordon’s findings. But the prosecution case was based on those findings being incomplete and the fact that Dr Gordon had missed the vital signs of petechial haemorrhages and injuries to the neck. We have already said that in our view there was undisputed evidence upon which the jury could properly conclude that his autopsy had not been carried out with proper care. In the respects referred to by her in her evidence Professor Whitwell agreed with this although like the pathologists we have heard she commented favourably on the care with which he made his notes.

[155] Next, as Mr Edis pointed out in his final submissions, much of the evidence given by the pathologists we have heard would have assisted the prosecution.

[156] Where a pathologist accepted the probability that the pathology evidence pointed to death being caused by compression of the neck (in the circumstances of this case) taking account of all the other evidence, it would in our judgment be folly for an advocate to call such evidence on the Appellant’s behalf. Mr Martin-Sperry when asked by the court which of these witnesses he would call at any re-trial, after taking time to think about it, said that he would call all of them. He added that he would only do so after having a full conference with each before calling him. In our judgment this assertion is wholly unrealistic. We infinitely prefer the view taken by Lord Carlile. He told us that in his judgment to call any one of Dr Hunt, Dr Lawler or Professor Vanezis would have been likely severely to damage the Appellant’s case. This was also the view of Dr Hunt expressed in his letter to solicitors of 13 June 2002 and his evidence in this appeal.

[157] In addition to the above, a number of the pathologists gave other evidence which would be positively unhelpful to the Appellant. Professor Vanezis spoke of the difficulty encountered by pathologists in identifying petechial haemorrhages which he said can be difficult to see. He also expressed the view that a person under the influence of alcohol and diazepam would not necessarily put up much resistance so that physical signs in the form of a struggle against a compressing hand ‘would not be well developed’. Further he expressed the opinion that the signs of injuries to the deceased’s face indicated more than one fall, if fall there was, something which was inconsistent with the Appellant’s evidence.

[158] Dr Lawler’s scepticism about the fractures being caused after death would clearly not have helped the Appellant’s case. Nor would Dr Cary’s comments about third-party involvement. Professor Crane in evidence said that on the whole people who fall do not fracture their larynx. When asked about the account given by the Appellant at interview he described it as a mechanism unlikely to have caused the injuries found.

[159] In our judgment the best test of whether this evidence would, or might, have assisted the Appellant is to be found in the views of Lord Carlile to which we have referred. He was trial counsel. He was in the best position to judge what evidence would or would not assist the defence. His decision not to call any of the three pathologists available to the defence is not challenged as unreasonable or negligent. Nor in our judgment could it have been. In our opinion precisely the same considerations apply to the three other pathologists who were instructed after trial.

Professor Conway

[160] We turn finally to the evidence of Professor Conway which Mr Martin-Sperry sought leave to adduce. We had been supplied with a report from Professor Conway in respect of which Mr Martin-Sperry conceded that five of the seven paragraphs were inadmissible. This evidence affects the appeal on ground 1 but more specifically is addressed to grounds 2 and 3 for which leave to appeal has not been granted. We decided that we should hear his evidence de bene esse.

[161] Professor Conway is an expert in memory research. His written report set out general comments about the unreliability of memories of children of five years at a distance of 20 years remove or more. In general terms the report pointed to the difficulties of accurately recalling events occurring at age five when re-telling them after 20 or more years. In the summary to para 2 of his report Professor Conway stated:

‘2.5 Summary. The memories from below about seven years in age were formed during the period in which the brain, the self, memory, comprehension, language, and the emotions were all undergoing rapid and intense development. Memories from this time are likely to contain errors and in some cases will be entirely wrong. This is the case for everyone, there is nothing unusual about it and it simply reflects the fact that, in humans more so than in any other animal, cognition develops after birth. It means, however, that memories from this period, when the individual was aged five to seven years or less should be treated with caution. As a memory researcher I would not rely on the accuracy of such memories unless there was additional, independent, corroborating evidence.’

The third paragraph dealt with specific statements taken from the witness statements taken from Diane for the purpose of the trial.

[162] In his oral evidence Professor Conway was an impressively candid witness. He said that it was not impossible for a child aged 51/2 to remember her mother being murdered. He added most people remember three or four ‘hot spots’ in their early life. However he said research shows that the memory of early events is recalled out of order and with inaccuracies as to the detail of the event or events. In his opinion the only way to test the accuracy of such evidence is by looking at independent reliable evidence which supports it. He said that in his opinion it was not possible for an adult to relate accurately conversations heard under the age of seven.

[163] Generally he was sceptical about false memory syndrome. He said it was a hypothesis for which there was no proper evidence. He was asked in cross-examination if much of what he was saying was simple common sense. He said he did not really know.

[164] Finally towards the end of his evidence he said that childhood memories are likely to be accurate as a theme, but may be coloured by inaccuracies.

[165] In submissions on this aspect of the appeal Mr Martin-Sperry relies upon the many inconsistencies in Diane’s witness statements and her evidence. He points to the absence of medical records which ought to have existed for both Diane and Damien which could have confirmed some parts of their evidence. Further, the medical records which do survive do not confirm either Diane’s or Damien’s evidence.

[166] As to these submissions the inconsistencies were all evident during the course of Diane and Damien’s evidence as was the lack of documentary support. The transcript of Diane’s evidence demonstrates how Lord Carlile made considerable use of these factors in his cross-examination. He told us, and we accept, that he felt he had sufficient ammunition from his cross-examination not to call Dr Boakes. He feared much of the inroads made by him in cross-examination might have been minimised if he called Dr Boakes and Dr Brewin was called by the prosecution.

[167] At trial he was also fearful, that if he called Dr Boakes it might risk the admission of the Appellant’s previous conviction for sexual offences against his step-daughter Kelly. That decision is also not the subject of any criticism by Mr Martin-Sperry.

[168] Whether the reason for not calling Dr Boakes was right or wrong, having heard Professor Conway’s evidence we are quite satisfied that his evidence would not have assisted the Appellant if it had been given at trial. In our judgment it is on the very borderline of admissibility. Essentially the professor’s evidence of the results of research into memories goes little further than is commonsense and well within normal human experience. He accepted that a traumatic event occurring when a person is under the age of seven can be recalled by that person in adulthood. Moreover, rejecting, as he does, false memory syndrome it would not have assisted Lord Carlile’s attempts in cross-examination to sow the seeds of that hypothesis in the minds of the jury.

[169] Generally the contradictions in Diane’s evidence and her failure to give a version of the killing which accorded with strangulation (the prosecution contended that her view of what happened at the crucial time was hidden by the Appellant’s body) were all before the jury. The judge directed the jury to take great care in assessing her evidence. We are quite satisfied that if Professor Conway’s evidence had been given at the trial it would not have affected the verdicts and it affords no ground for allowing the appeal. In the circumstances we reject the application for leave to amend the grounds of appeal in the terms sought.

SUMMARY

[170] We have discussed at length the criticisms of Dr Armour and the effect of the fresh evidence which we have heard. But it is important to remember that the evidence of pathology was only one strand of the prosecution’s evidence adduced at trial. It must not be considered in a vacuum. The prosecution relied on the background evidence of violence by the Appellant to Mary Bowman. It also relied on the eye-witness evidence of Diane and Damien of the night on which Mary Bowman died. Further there were the alleged lies of the Appellant about what happened on that night. That body of evidence coupled with the evidence of the confession to a fellow prisoner provided a powerful case against the Appellant. The pathology evidence must be considered in the context of the whole of the prosecution case.

[171] We repeat, the essential issue raised by the pathology evidence was as to the time when the laryngeal fractures occurred: were they ante or post mortem? Given that the fractures required localised constrictive force the prosecution’s case that the fractures could not have occurred during Dr Gordon’s autopsy (including the placing of the neck structures in the body cavity) was a powerful one. At the time the structures were removed and then examined Dr Gordon would have been proceeding with special care. The possibility that he unconsciously fractured both thyroid horns is a remote one, as is the possibility that the horns were fractured when the larynx was placed back into the body with the other organs that had been removed. There was therefore in our view strong evidence that the fractures occurred ante-mortem. There were also cogent grounds for the view that Dr Gordon missed external signs of strangulation which can be subtle and hard to detect. These matters, together with all the other evidence in the case afford a sound basis for the jury’s verdict of murder. In our judgment nothing in the fresh evidence which we have received causes us to conclude that the verdict is unsafe.

[172] It follows from our conclusions expressed above that save to the limited extent set out in respect of the Nicole Lewis topic we reject the criticisms made against Dr Armour. We also reject the submission that the fresh evidence of the pathologists called before us affords the Appellant any ground of appeal. Notwithstanding the limited criticism we have made of Dr Armour we are quite satisfied that this criticism does not render the verdict of the jury on count 1 unsafe. We have already stated that the evidence of Professor Conway affords no ground of appeal. For the reasons expressed above we are satisfied that the verdict of the jury is quite safe and accordingly this appeal must be dismissed.

[173] We wish to add that in our opinion this appeal is in reality an attempt to re-open all the arguments deployed at trial. We are not to be taken as saying that in all cases where fresh expert evidence is called to the same effect as was called at trial an appeal can never succeed. But in our judgment this court will be astute to ensure that in such appeals the trial process is not thereby subverted.

EXPERTS

[174] In R v Harris and others [2005] EWCA Crim 1980, [2006] 1 Cr App Rep 55, 85 BMLR 75 this court gave guidance in respect of expert evidence given in criminal trials (see p 55). The way that the expert reports have been prepared and presented for this appeal leads us to believe that it would be helpful to give some further guidance in order to underline the necessity for expert reports to be prepared with the greatest care.

[175] On 14 February 2006 the Attorney General, announcing the outcome of his review of Shaken Baby Syndrome cases published three papers including a booklet entitled ‘Disclosure: Expert’s Evidence and Unused Material – Guidance Booklet for Experts’. The instructions contained in this booklet were ‘designed to provide a practical guide to disclosure for expert witnesses instructed by the Prosecution Team’. The booklet sets out three key obligations arising for an expert as an investigation progresses. The relevant steps are described as to retain, to record and to reveal. No doubt any expert instructed by the prosecution will, of course, comply with these guidelines. What follows applies equally to experts instructed by the prosecution and defence.

[176] We desire to emphasise the duties of an expert witness in a criminal trial, whether instructed by the prosecution or defence, are those set out in Harris. We emphasise that these duties are owed to the court and override any obligation to the person from whom the expert has received instructions or by whom the expert is paid. It is hardly necessary to say that experts should maintain professional objectivity and impartiality at all times.

[177] In addition to the specific factors referred to by Cresswell J in the Ikarian Reefer [1993] 2 Lloyds Rep 68 set out in Harris we add the following as necessary inclusions in an expert report:

1. Details of the expert’s academic and professional qualifications, experience and accreditation relevant to the opinions expressed in the report and the range and extent of the expertise and any limitations upon the expertise.

2. A statement setting out the substance of all the instructions received (with written or oral), questions upon which an opinion is sought, the materials provided and considered, and the documents, statements, evidence, information or assumptions which are material to the opinions expressed or upon which those opinions are based.

3. Information relating to who has carried out measurements, examinations, tests etc and the methodology used, and whether or not such measurements etc were carried out under the expert’s supervision.

4. Where there is a range of opinion in the matters dealt with in the report a summary of the range of opinion and the reasons for the opinion given. In this connection any material facts or matters which detract from the expert’s opinions and any points which should fairly be made against any opinions expressed should be set out.

5. Relevant extracts of literature or any other material which might assist the court.

6. A statement to the effect that the expert has complied with his/her duty to the court to provide independent assistance by way of objective unbiased opinion in relation to matters within his or her expertise and an acknowledgment that the expert will inform all parties and where appropriate the court in the event that his/her opinion changes on any material issues.

7. Where on an exchange of experts’ reports matters arise which require a further or supplemental report the above guidelines should, of course, be complied with.

[178] In this case, at times, some of the experts expressed to the court for the first time opinions which had not featured in their reports. A number of additional reports were also supplied at a late stage. Mr Martin-Sperry explained forcefully the funding constraints and difficulties faced by those representing the Appellant in approaching and obtaining experts’ reports. We are mindful of these difficulties and aware of the constraints placed on the Appellant’s advisers in this appeal but they do not wholly explain why some of the material placed before the court was not included in the relevant expert’s initial report. They also do not explain or excuse the failure to refer to the instructions given and material provided before the reports were written. Failure to adhere to the guidelines can cause considerable difficulties and some delay in the conduct of the proceedings. These remarks are designed to help build up a culture of good practice rather than to be seen as critical of the experts in this case. We should add that it may be that some of the difficulties experienced by the experts were caused by late supply to them of information, from whatever source.

DISPOSITION:
Appeal dismissed.

SOLICITORS:
Chris Saltrese; Crown Prosecution Service.

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