Case No: 99/02244/W3
99/02420/W3
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
(Mr Justice Collins)
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 25th January 2001

B e f o r e :

LORD JUSTICE POTTER
MR JUSTICE BENNETT
and 
MRS JUSTICE RAFFERTY
- - - - - - - - - - - - - - - - - - - - -

	REGINA			
	- v -		
	(1)	SUSAN VICTORIA LUMMES
(2) CARL RICHARD ADAMS	 	
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Brian James Higgs QC and Robert Ward Esquire (instructed by the Crown Prosecution Service for the Crown)
James Sturman Esquire (instructed by Russell Cooke, London, for Susan Victoria Lummes)
Edward Jenkins Esquire (instructed by John Copland & Sons, Kent for Carl Richard Adams)

- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court

Crown Copyright ©

LORD JUSTICE POTTER:

1.	On 15th December 2000 this court allowed the appeal of the appellants Susan Lummes and Carl Adams against their conviction of Murder, each by a majority verdict of 11-1 at Maidstone Crown Court on 18th March 1999 following their trial before Collins J. and a jury.  Each was sentenced to life imprisonment.  Having stated that the appeals were allowed, we ordered a re-trial of the appellants and stated that we would give our reasons for allowing the appeal later.  Those reasons now follow.  

2.	The victim of the murder was Sean Lummes, the husband of Susan Lummes.  On the night of 23rd/24th September 1997 he was brutally murdered at 190 St. George’s Avenue, Sheerness, which was, in ordinary circumstances, their matrimonial home.  However, at the time, Sean and Susan Lummes were living with their children in rented accommodation at 73 Invicta Road, Sheerness while Sean Lummes was redecorating 190 St. George’s Avenue.  Adams was Susan Lummes’ boyfriend.  He wished her to leave Sean Lummes and live with him.  It was the Crown’s case that he committed the murder at the instigation of Susan Lummes who had ‘set up’ Sean Lummes by sending him late at night to 190 St. George’s Avenue, where she had arranged for Adams to go and murder him.

3.	The Lummes’s domestic history had been a turbulent one.  They had married in 1992 when she had two young sons by previous relationships with different men.  Their own marriage produced a daughter, Sophie and a son, Daniel.  They all moved into 190 St. George’s Avenue in December 1996.  However, by that time Susan Lummes had begun her affair with Adams and, by February 1997 the marriage was in difficulty, there were money problems, and Susan Lummes was speaking of leaving Sean to live with Adams.  In March 1997 Adams gave Susan Lummes £500 to help her move into rented accommodation at 73 Invicta Road  to which she moved with her three boys, Adams moving in with her.  He spent considerable sums of money on domestic fittings and furniture and offered her marriage.  Both had serious intentions for a future together.

4.	However, Sean was a problem to them.  According to Susan Lummes in her interview with the police, he had threatened to take the children away, as a result of which she ostensibly ended her relationship with Adams, who left 73, Invicta Road in mid-August 1997, Sean moving in with her shortly afterwards.  Susan remained in contact with Adams, mainly by public telephone, to avoid disclosure of her calls on her home telephone bills.  They also met at darts matches at The Royal public house.  They still discussed their future life together.

5.	At interview, both appellants said that, during the evening of Friday 19 December 1997 they visited 190 St. George’s Avenue to view it with future cohabitation in mind, Susan Lummes saying that Sean had spoken of moving away from London to live.  The Crown suggested that this supposed visit had never taken place, but was mentioned to the police in order to explain any scientific evidence which might be found to indicate that Adams had visited the premises on the night of the murder.  It was the Crown case that Sean Lummes was redecorating the house in order for the family to move back there and there was no evidence to suggest that Susan Lummes and Adams would be able to move there.

6.	Adams met Susan Lummes at The Royal during the evenings of Monday 22 and Tuesday 23 September, on both occasions driving her home in his van to Invicta Road.  It was the Crown’s case that, having arrived home at Invicta Road at about 11p.m. on the night of 23rd September, Susan Lummes later sent Sean round to 190 St. George’s Avenue to collect some clothes, knowing that Adams, by pre-arrangement, would be waiting there to murder him.  No one else would have known that Sean would be at 190 that night.  Susan Lummes’ case on the other hand, was that, after she returned home on the evening of 23 September, she had an argument with Sean who left the house saying that he intended to commit suicide.  Adams stated that, having dropped Susan Lummes off at Invicta Road earlier in the evening, he had driven straight to his home.  However, the Crown’s case was that CCTV film taken in Sheerness that night showed that he was still in the area.  The Crown contended he must have driven to 190 St. George’s Avenue to wait for Sean and that he must have entered the house with a key provided by Susan Lummes.  A single fingerprint of Adams was found upon a vase at 190 St. George’s Avenue after the murder.  The Crown suggested that he must have touched it while he waited for Sean.  There was no other forensic evidence of any kind against him.

7.	On Wednesday 24 September, Susan Lummes made no immediate enquiries about Sean’s absence.  However, contrary to her previous practice when she did not wish Sean Lummes to know that she had been telephoning Adams, she made a telephone call to him from Invicta Road on that day.  It was the Crown’s case that her call indicated that she was no longer concerned about its disclosure to Sean because she knew he was dead.  It was her case that he had walked out after a row, leaving his wedding ring behind and causing her to believe the marriage was finally over; she telephoned Adams because she wanted reassurance.

8.	In interview Adams said he was surprised to hear from Susan Lummes as it was not common for her to call him at work. On Thursday 25 September, CCTV footage showed that Adams had travelled from his work place to Sheerness on Thursday morning, he being caught on camera on several occasions prior to 8a.m.  A schedule of telephone calls showed that he rang Susan Lummes twice during that time.  At his first interview, Adams stated that he had driven straight from work to St. Helier’s Hospital in Surrey but, faced with the evidence of the CCTV sightings and the telephone calls, in later interviews he said he was probably just seeing if Sean was home and was not sure if he had passed 73 Invicta Road.  

9.	Despite the fact that Susan Lummes made no attempt to contact Sean on 24 September either at 190 St. George’s Avenue or on his mobile telephone, on Thursday 25 September she reported to the police that she was concerned about him.  His body was discovered at 190 St. George’s Avenue, dead from knife wounds and what appeared also to be hammer blows, which the pathologist said suggested two assailants.  Bloodstains were widespread around the room.  There were no signs of forced entry to the house.

10.	The time of Sean’s death could not be stated with accuracy.  The contents of his stomach suggested that he probably died between two and four hours, or perhaps six hours, after eating potato chips.  Susan Lummes’ evidence was that they had had fish and chips between 5.30 and 6.00p.m. on 23 September.  However, it was not known if that was the deceased’s last consumption of potatoes.  Both appellants were interviewed at length over five days, and, in giving evidence, their accounts did not differ significantly from what they had said in interview.

11.	The Crown’s case, as opened, was that the two appellants were in it together and that no-one else was involved.  Adams had done the killing, Susan Lummes having set up her husband by sending him to 190 St. George’s Avenue where Adams was lying in wait for him, having being provided with a key by Susan Lummes to enable him to get in.

12.	The case against each, considered separately, had considerable difficulties and, no doubt for that reason, they were never separated out by the Crown in opening.  In fact, so far as Susan Lummes was concerned, there was no direct evidence against her of any kind.  The case was based entirely on her association with Adams and her ‘motive’ to dispose of her husband, so that she and Adams could live together with the children, coupled with the fact that (on the assumption that Adams was the killer), she must have given him the key to make the unforced entry into 190 St. George’s Avenue, confirmed by the forensic evidence.  The Crown relied upon two other matters.  It asserted that she had joined with Adams in a fictional account of their joint visit to 190, St. George’s Avenue three days before the murder in order to explain any forensic evidence linking Adams to the scene which might be found following the murder (as indeed it was in the form of the single finger-print on the vase).  The Crown linked this with the discovery by Susan Lummes’ bed at 71 Invicta Place of an out of date copy of ‘True Crimes’ magazine which came from a collected series of such magazines preserved at 190 St. George’s Avenue.  It contained an article relating to the role of scenes of crimes officers in the detection of crime and their ability to discover traces of forensic evidence connecting a particular person to the scene.  Finally, there was the suggestion that use of the telephone at Invicta Road on the morning after the murder indicated that she knew her husband was dead.

13.	As the judge put it at the outset of his summing up:

“The case against Mrs Lummes thus depends upon her active involvement in ensuring that Sean went to 190.  The prosecution rely on, for example, the possession of the magazine ‘Real Life Crimes’, the alleged phoney visit on Friday, the 19th and the showing of concern to ensure that any traces left by Carl should be explained as pointers to her involvement.  But in themselves, those pointers could not establish guilt.  You can only convict her on the case presented by the Crown if you were satisfied that she did lure Sean to 190.  I cannot underline that too clearly.  That is the only basis on which you can convict Mrs Lummes..”

14.	So far as Adams was concerned, there was evidence linking him to 190 St. George’s Avenue in the shape of the single fingerprint found upon the vase, which the defence suggested must have been the product of the earlier visit.  There was also evidence of his movements in his van as spotted on CCTV cameras before midnight on Tuesday 23rd September.  The journey of most significance, however, was the subject of disputed expert evidence relating to a white van seen to be driving from the general direction of Invicta Road at 4.56a.m. which a prosecution expert said was apparently the defendant’s van, which was of a common type but with a defect in its lighting which, according to the prosecution expert showed, but according to the defence expert, did not show, on the CCTV film.  The Crown relied upon lies told by Adams in his first interview, admitted in later interview to be lies, about the movements of the van before midnight.  Faced with the pre-midnight CCTV evidence, he explained that he had lied because he was concerned about being proceeded against for driving with excess alcohol.  He consistently denied driving his van in the area at 4.52a.m., the Crown relying upon its expert evidence that the van on film was his as further evidence of lies on his part.

15.	The only evidence, other than mere assertion, upon which the Crown relied (and which assumed considerable importance at trial) was a receipt for electricity in respect of the re-charging of the electrical meter key at 190 St. George’s Avenue, found in the pocket of the victim after the murder.  That receipt had been issued at 6.57p.m. on Friday 19th September at a shop close to St. George’s Avenue at about the time when the appellants said they had visited 190 on an evening when the victim was babysitting back at Invicta Road.  The Crown claimed that the receipt was an unanticipated factor which showed that the evidence as to the appellants’ earlier visit was a fabrication devised as part of their joint plan to murder Sean Lummes.

16.	During the trial, two difficulties arose which had been unanticipated in the Crown’s opening to the jury.  The first was that the forensic experts were agreed that the violent nature of the attack on the victim and the types of multiple injury sustained, indicated the likelihood of two assailants being involved, not one, as had been the Crown case in opening.  There was also credible evidence given by a Crown witness that the victim had had several affairs with the wives of other men, at least one of whom had a severe temper.  More significantly, however, the victim was involved in illegal beer importation and, after a police raid on premises on 23rd September, the victim was the only man who had not been arrested.  There was a suggestion by the defence therefore that criminal associates of Sean Lummes may have been responsible for the attack upon him.  There was also evidence before the jury that Adams was not a violent man and was squeamish at the sight of blood.

17.	For the purposes of this appeal, it is not necessary to recount the evidence of the appellants which was a firm denial of the charges, consistent with the interviews which they had given.  The judge observed that they were inordinately long interviews which the jury might think verged on oppression, canvassing and re-canvassing at length the details of the appellants’ activities either side of the murder and pressing Susan Lummes to admit fears that the victim intended to remove her children when there was really no evidence to that effect.

18.	Subject to one fundamental complaint made by both appellants as to the approach which the judge advised the jury they should take when considering the case against the appellants, namely that their cases stood or fell together, there can be no criticism of the judge’s summing up.  Indeed, upon this appeal, while certain criticisms were raised, in particular the judge’s direction as to lies, they were not pursued with any vigour.  The summing up was a full and fair one which reminded the jury of the events on a chronological basis, pointing out the weaknesses of the prosecution’s case in relation to the weight on the individual aspects of the evidence to which we have already referred, as well as other matters of detail to which it is not necessary to refer.  It seems fair to say, upon a thorough reading of the summing up, that, although no submission had been made on behalf of either appellant at the end of the prosecution case, the judge was concerned at the inferential nature of the case, as opposed to the existence of hard evidence in support of it.  In his advice on appeal which is before us, leading counsel for Adams at trial described the summing-up as ‘almost embarrassingly one-sided’ and a ‘strong invitation to the jury to acquit’.  Counsel for the Crown on this appeal did not demur.  

19.	By way of example, the judge emphasised that, while the absence of a forced entry was consistent with Adams having obtained a key to 190 from Susan Lummes, it was equally possible that, whoever had committed the murder, had been let in by the victim, perhaps because he knew him.  As the judge stated: ‘We simply do not know’.

20.	In relation to the question of motive, the judge was at pains to make clear to the jury that, suspicion and even probability were not enough.  He referred to the unlikelihood, that upon any final parting, any judge would be persuaded to remove young children from the stable home provided by Susan Lummes ‘to live with the father who had a history of depression, threats of suicide and philandering’.

21.	He concluded:

“But it is for you to consider whether the truth was such as really to provide a sensible motive for murder.  You may think that if the evidence does not persuade you that it would be safe to draw an inference of guilt, then it would be wrong to attach any weight to the alleged motive to tip the balance against the defendants.”

22.	So far as the evidence of the single fingerprint was concerned, the judge reviewed at length the pros and cons of the evidence relating to the earlier visit and the Crown’s basis for suggesting it had been touched on the night of the murder and concluded:

“You may think that it would be thoroughly dangerous to assume from the presence of that finger-print that there is any compelling evidence that Carl was present in 190 at the time that the murder was committed.  Whatever be the explanation as to how that thumb-print came to be on the vase – and there are many possibilities, you may think, members of the jury  - it would be unsafe to assume that it points to his presence, as I say, at the time the murder was committed.

23.	He also emphasised the evidence from two witnesses, one of whom was a workmate who had been present with Adams when an accident occurred at work, that he was squeamish at the sight of blood and that, despite widespread blood at the scene of the murder, none had been traced to the clothes of Adams.

24.	It has been the strong submission on behalf of each appellant on this appeal that, even considered on the basis of a joint enterprise between them, the evidence in the case never amounted to more than a strong suspicion short of guilt and that, in the light of the pathologist’s evidence that, contrary to the Crown’s original case, two persons appeared to have been involved in the killing and because of the possibilities of other perpetrators arising from the criminal and adulterous associations of Sean Lummes, the verdicts should be set aside as unsafe on the basis of a lurking doubt.  Subject to one matter, in the light of the thorough and favourable review of the facts by the judge in summing-up, that position would not appear to us to be sustainable.  That matter, and the real complaint in this respect, is that the judge, in instructing the jury on their approach to the case, erred in deciding to direct them to deal with it on the basis that the appellants stood or fell together.

25.	In this respect the judge went contrary to his initial instinct, which was articulated at the stage when he discussed with counsel the nature of the directions which he proposed to give when summing-up, so far as separate verdicts were concerned.  He stated:

“I am dealing with the question of separate verdicts - it seems to me that if the jury were not sure Mr Adams was one of the killers, they could not convict Mrs Lummes because the case against her is put as a secondary party to his killing.  It is specifically put on that basis …. it would, as it seems to me, be open, at least in theory, to the jury to be sure that he was involved in the killing, but not to be sure that she took part in it, as opposed merely to approving of it.  That possibility, I think, I must leave to them.”

26.	Counsel for the prosecution observed that it seemed to the Crown that separate verdicts either way were possibilities, but the appellants did not stand or fall together and either one could be convicted.  However, following discussions as to the various permutations and combinations open on the evidence a consensus was reached that, as the judge put it:

“Whatever the theoretical position, the reality is that this is a case where from whichever angle you look at it, the reality would be that it would be difficult to justify different verdicts against the defendants.”

27.	Accordingly, in summing up to the jury, the judge said this:

“…. the prosecution have to accept that they present the case now before you on the basis that Carl Adams was not on his own but, nonetheless, they maintain, that as they are entitled to – and this is a matter you are going to have to decide – that Carl Adams was one of those who was attacking Sean at the relevant time and killing him.”

28.	Turning to the position of Susan Lummes he said:

“The main thrust of the prosecution case is clearly not changed.  That thrust is, as I have said, that Sean was lured to 190 and his death by his wife and was killed when or shortly after he got there and. in any event, not later than the early hours of Wednesday morning.

The case against Mrs Lummes thus depends upon her active involvement in ensuring that Sean went to 190.  …….

Members of the jury, equally since the Crown’s case is that Carl was enabled to get into 190 because he was provided with a key by Susan and Sean was sent there by her, you would have to be sure of her involvement if you were to convict him.  

It is fairly obvious, you may think.  Thus while separate consideration is needed, and may be important in the matter that Mr Stokes raised before you, it cannot in the circumstances of this case justify different verdicts.  You look at the whole of the evidence.  If that evidence looked at as a whole satisfies you that both were involved you convict both if you are not sure that both were involved you must acquit both.  That, as I say, is a matter of reality is the way that this case has to be approached.”

29.	It should be noted that the reference to the ‘matter that Mr Stokes raised before you’ was a reference to the possibility raised by leading counsel for Adams that Susan Lummes might have organised others than Adams to carry out the killing of Sean.  

30.	It is the case for the appellants that, by directing the jury in the terms of the last paragraph quoted, following which the judge immediately proceeded to review the evidence without discrimination as to its effect on the case against each, the judge in effect paid no more than lip service to the question of separate consideration against each before inviting the jury to consider against both, every piece of evidence used to found a case which was almost entirely surmise, including any evidence of lies by either on which the prosecution relied.  Counsel for the Crown on this appeal has sought to justify the approach of the judge on the basis that he was, if anything, favourable to the defendants in the sense that the judge was directing that, unless the jury was satisfied that both were involved in the killing, both should be acquitted.  That meant that, even if the jury considered that Adams was involved in the killing for his own reasons uncommunicated to Susan Lummes, he would be acquitted.  That is superficially an attractive point.  However, it fails to meet the main thrust of the objection that, having received such a direction, points of strength made individually on behalf of one defendant could well have got lost, or appear to be outweighed in the minds of the jury by considerations relating to the other.  The lies told by Adams were relied on heavily by the Crown.  Where the evidence against two co-defendants is markedly different it is appropriate that a conventional direction relating to separate considerations of the cases should be given: R –v- Ashton [1992] Crim LR 667.  It seems to us that one of the vices of the judge’s direction was that, if it was in fact the case that the jury principally concentrated on the case against Carl Adams and decided that it was sufficiently proved, not least on the basis of the lies he told, it may have led them automatically to consider the case proved against Susan Lummes as the only candidate who could have given Adams the key, without reconsidering, as against her, whether the evidence was sufficient to show that a key must have been used at all or whether the case against her was anything but suspicion.  On the other side of the coin, we were told on the appeal that, while Susan Lummes was firm in the evidence which she gave, she came over as a cold, emotionless and unsympathetic witness.  Given the ‘joint’ direction which the jury received this may in turn have acted to the disadvantage of Adams.

31.	In our view, the judge’s initial reaction as to the appropriate direction was correct, if, in practice, the necessity to consider the case against each defendant separately was to be followed by the jury.  While such a direction could and would have included a direction that in most respects, because of the Crown’s case of joint enterprise, the evidence relied on was admissible against each, a direction to consider first the case against Adams and thereafter that against Susan Lummes would have been preferable.  The form adopted by the judge, while taken for practical reasons of simplification, may in practice have robbed at least Susan Lummes of a separate and beneficial verdict.  That same risk also exists in respect of Adams, simply because the nature of the Crown’s case was one of joint enterprise throughout, and it is not possible to speculate on what evidential basis or by what process of reasoning the jury returned a verdict of guilty in respect of each.

32.	For those reasons, we consider that the conviction was unsafe in the case of both appellants.