Reason why killer’s legal team withdrew from case midway through trial
A killer's legal team withdrew from his trial midway through the case after he told the jury "untruths" from the witness box.
Kevin Marsh drank gin and snorted cocaine as he watched a Bear Grylls show on Netflix hours before getting behind the wheel[1]. When he did so, he smashed his Ford Fiesta into a bin lorry in a head-on collision.
His partner Michelle Atherton died aged 47 in the crash[2]. Marsh attempted to pin the blame on her, claiming that she had grabbed the steering wheel immediately beforehand.
But he was convicted of causing death by dangerous driving by a jury on Wednesday following a trial at Liverpool Crown Court[5], having admitted the lesser charge of causing death by careless driving while under the influence of drink or drugs. It came after his barrister Michael O'Brien withdrew from the case[6] on Monday, January 8, with the defendant being represented by Steven Ball thereafter.
Jurors were not initially told of the reasons for this, but Judge David Aubrey KC, who presided over the trial, revealed what had happened to them after they returned their verdict. Mr O'Brien's withdrawal came after Marsh had been cross-examined on Friday, January 5 by prosecutor Arthur Gibson.
He was quizzed why he had said in his defence statement, a document submitted by a defendant prior to trial which sets out their case, that Ms Atherton had only attempted to grab the steering wheel rather than had succeeded. At this point, Marsh claimed that he had not read said statement and had merely signed it - leading to his brief being "professionally embarrassed".
Judge Aubrey told the jury on Wednesday afternoon: "Mr O'Brien, as you know, withdrew from the case. He was professionally embarrassed.
"That is why he withdrew from the case. He was professionally embarrassed in consequence of that which the defendant said in evidence about that defence statement.
"What he was saying was those words were not mine, I didn't say them, I didn't read the defence statement and I was merely asked to sign it. On occasions, barristers can make mistakes.
"When I was a barrister, I made many. When you make mistakes, you hold your hands up.
"You will notice that Mr O'Brien said nothing. Rightly so.
"If he had continued representing the defendant, he would have known - because he didn't correct anything - that that which he was saying was in fact untrue and therefore, by continuing to represent him, he would have been endorsing those untruths before you. That is why he was professionally embarrassed, and that is why he could not continue representing the defendant.
"There is no reason why you should not know that now. Mr O'Brien acted perfectly correctly in the best traditions of the bar, as did Mr Ball in accepting instructions at a late stage to ensure that this trial continued."
Mr Gibson earlier told the jury during the prosecution's opening that the refuse vehicle involved in the smash left the depot on Parr Street in St Helens[7] at around 6.45am on July 5 last year in order to commence a round in the Newton-le-Willows[8] area. This route took its crew eastbound along Broad Oak Road, a 30mph road where the "surface was damp, if not wet, from earlier rainfall".
As the truck approached the bend near to the junction with Delta Road, its driver noticed a white Ford Fiesta which was travelling in the opposite direction at an estimated speed of between 52mph and 54mph. This car then "suddenly steered to the right" and veered into the wagon's path, colliding "head-on" despite an "immediate correction back towards the left".
Footage of the fatal crash captured by the lorry's dashcam was shown to jurors. One member of Ms Atherton's family sat in the public gallery with his hands on his head as the video was played, while one woman walked out of the courtroom.
Mr Gibson told the court that Marsh had been the driver of the car, with his then partner being the front seat passenger. She was "severely injured" in the incident and was pronounced dead at 8.48am the same day after being taken to Aintree[9] Hospital.
The prosecutor said: "What of Mr Marsh? It seems that he may have been knocked unconscious, or at the very least dazed, as a result of the collision because, for a while, he remained in the car.
"But he did not stay there. Having got out of the car and recovered from the immediate effects of the collision, he started to walk away up Delta Road.
"It seems he turned right down an alleyway which ran along the back of the houses which border Broad Oak Road before entering the back garden of one of the houses and going down the side of the house, until he returned to the pavement of Broad Oak Road. Having done so, he went and knocked on the door of a house occupied by Mr Lewis Molyneux and his partner.
"What would you have expected Mr Marsh to say to Mr Molyneux when he opened the door? Something like, 'please can you help me, I’ve been injured in a car crash and my partner is still in the car, badly injured'?
"Mr Marsh did not say that, or anything like that. He asked Mr Molyneux to call him a taxi.
"In the distance, Mr Molyneux could see the crash and asked the defendant whether that was his car. 'No', replied Mr Marsh, 'I was in town and jumped on my way home', and repeated his request for a taxi, which Mr Molyneux proceeded to book for him using an app on his phone."
But Marsh was then spotted by refuse staff and made to remain in the area until the police arrived. The 43-year-old said to the workers as they walked him back towards the wrecked car: "What car, I don't have a car?"
He told another binman: "I wasn’t driving that car. It’s my cousin’s car.
"You’re not setting me up are you? You’d better not be f***ing setting me up?"
As they approached the scene, he continued: "Ah s***. That's not my car. It's my sister's. What's it doing here?"
Mr Gibson said of this: "You will of course have noticed that, in all his utterances, he did not ask once after Ms Atherton, who was still in the car being tendered to by a member of the public who happened to be an off-duty nurse."
Once handed over to officers, Marsh told them: "Don’t be blaming me for this s***. Listen, this has nothing to do with me, I got a taxi here.
"I've not drove that car. I've not been in that car."
Marsh also claimed to one PC that he had been "walking down the road when the accident happened". He was said to have "changed his tune momentarily" when he told paramedics he had been "sat in the driver's seat", but upon his arrival at Belle Vale Police Station "changed his mind again" and said: "I don't remember driving that f***ing car."
The dad was subsequently taken to Whiston Hospital as a result of his injuries. The court heard he had failed a roadside test which indicated that he had 58 micrograms of alcohol in his system per 100 millilitres of breath, the legal limit being 35.
Samples taken from him in hospital indicated his blood alcohol limit at the time of the crash "would have been in the region of twice the legal limit for driving". Marsh also failed initial tests for cocaine and cannabis, and continued to be over the limit for these drugs six hours after the collision.
He was interviewed by detectives on the evening of July 13 after being discharged from hospital and made no comment under questioning. But he did give a prepared statement in which he said Ms Atherton had forced him to drive to his ex-girlfriend Gemma Bainbridge's house after they had argued about him lending her money.
Marsh alleged his partner had been armed with a hammer at this time and damaged some of the windows at the address. He also stated she suffered from mental health issues and had been "refusing to take her medication", and that he "lost control of the car because Michelle was trying to grab the steering wheel prior to the collision".
During his evidence from the witness box, Marsh described Ms Atherton as being "like my best friend" and said they had moved into a house on Gaskell Street in the town together only 10 days before the incident. Wearing a black shirt and grey tie on the stand and sporting short dark hair, the dad-of-three said he had "slept all day" on July 4 "due to his working hours" and awoke at around 6pm - after which he and his girlfriend went to an Asda[10] supermarket, where she was said to have picked up her medication from the pharmacy.
Under questioning Mr O'Brien, he said: "She asked me to take her to an address in Haresfinch. When we pulled up, some guy came up to the car.
"She passed her medication out and he passed her £100 in £20 notes. I didn't know that's what we were going for."
Marsh said of their return home: "I wasn't really speaking to her because of what she'd just done. She basically sat in the kitchen all night.
"Later on in the night she asked could we have a drink, which was rich because it was a Tuesday night and I was starting a new job the morning after. There was a quarter bottle of gin left in the house.
"She stayed in the kitchen, I was in the living room watching Netflix. I started drinking about 10 o'clock."
Marsh told the court that they "walked to the shop just before it shut" and bought two bottles of wine and a 2l bottle of cider. He added: "The only drink I drank in the house that night was the gin.
"She drunk the two bottles of wine and the 2l of cider as well. She remained in the kitchen and I remained in the living room.
"I remember watching Bear Grylls. I don't remember speaking much, we'd fell out over selling the medication."
Marsh claimed Ms Atherton then began "going on about" Ms Bainbridge while on the phone "to a girl called Zoe", using his device and his WhatsApp account, in the early hours of July 5. He stated that she was "saying she's going to go round and do stuff" and "came in a couple of times asking would I take her to Gemma's.
The defendant said: "I think it was three times through the night. I said no on each occasion.
"I stopped drinking about 1am. Michelle carried on, she still had the cider and stuff.
"Michelle pulled a bag of cocaine out of her pocket. She said she got it from someone she knew.
"I had two little small amounts off a key and left the majority of it with Michelle. I smoked a joint about 9pm."
When asked if he had taken any prescription drugs, Marsh said: "No, but I did have diazepam in my system. I took that three weeks prior to it."
Mr O'Brien asked him "what caused Michelle to be upset", and he replied: "It was the messages Gemma was sending. Michelle told me Gemma had been messaging and winding her up.
"Gemma was telling Michelle I still loved my ex-wife. At 20 past 6, she came in from the kitchen.
"She got a hammer off the electric cupboard and said 'get me to your ex's now before I put this hammer through your head'. I was quite shocked."
Marsh alleged Ms Atherton then went into the bedroom where his 13-year-old daughter was sleeping while holding the hammer. He said: "I just said 'I'll take you to Gemma's now'.
"I just wanted to get her out of the bedroom. My daughter looked quite worried at the time.
"Michelle walked downstairs, I followed her. She went into the kitchen and passed me the car keys.
"We went out, Michelle put her jacket on. She must have put the hammer in the jacket, because I didn't know she had the hammer on her.
"She was wound up. It was weird. She was quite wound up, wound up at me. It was like a different Michelle to what I'd known.
"I was just normal. I know I'd had gin and that, but when I left that house I didn't feel like I couldn't drive that car."
Marsh reported he then began driving them to Ms Bainbridge's home, but was still "asking Michelle not to go because Gemma has an autistic son". He added: "I knew he would have got scared. He'd have had a meltdown. I was asking Michelle not to go.
"She said 'I'm going and getting the money she owes you'. It totalled £1,900 that Gemma owed me.
"I didn't want her to go. I didn't actually take her to Gemma's house.
"I dropped her off at least five minutes walk from her house. I said 'I'm having nothing to do with this'."
Marsh told jurors that he waited for around five to 10 minutes before going to look for Ms Atherton, eventually finding her in an alleyway near to Ms Bainbridge's home. He said: "I asked her to get in the car.
"When she got in the car, I asked 'what have you done?'. She said she'd smashed the window.
"I was quite upset. I turned round and said 'you know I'm going to get blamed for this now, don't you?', and she said 'yeah, so what?'."
After they drove off again, Marsh recalled: "Michelle was screaming at me. She was telling me f*** off.
"She was screaming about my ex-wife, you still love your ex wife. I was trying to calm Michelle down.
"Michelle was like 'put your foot down, we're being followed'. She had the hammer out.
"She was telling me to put my foot down. I was quite worried, so I put my foot down.
"As we approached the bend, the car was silent. Michelle was silent.
"No one was speaking. I thought I was going about 40mph."
Marsh claimed that, as their Ford Fiesta approached the bend at Delta Road, his rear nearside wheel was clipped by the front bumper of a flatbed truck that was travelling in the opposite direction, in front of the bin lorry. He said: "I just hear a bang at the back of the car.
"I seen it like when it was literally on us, I heard a bang. It was louder than it would be if it was bumper to bumper.
"From the sound of it, it was the alloy part of the wheels that had hit. I thought it was the truck that I'd just seen on us."
Mr O'Brien said that experts had concluded that there was no evidence of such a collision taking place, but Marsh maintained: "There was a collision. It was just a little clip.
"He clipped the wheel, not a lot of force behind it. I heard a bang.
"It felt like the car fishtailed to the left, so I steered to the left - a quarter of a turn, if that. I turned the steering wheel to the left, because the back end of the car was going to fishtail to the left.
"Michelle leaned over and grabbed the steering wheel. She grabbed it around the 20 past the hour mark.
"It was her right hand. She pulled the wheel towards her to the 20 to the hour mark, towards herself in a clockwise direction.
"It caused the right turn in the car. I overpowered her and put it back to the left.
"We all know what happened next. I could see the bin wagon approaching, so I tried to steer to the left as fast as I could.
"We went into the bin wagon."
Marsh said he then "woke up" behind the wheel, adding: "I didn't actually know what had happened. It was like I'd lost my memory.
"If you can imagine being in a dark room holding a candle, that's what my vision was like. My chest was like having a heart attack, because I've had one before.
"I didn't know where I was, what I was doing. The next thing I remember was waking up in hospital."
Marsh said he spent the next 10 days in hospital after suffering a broken left ankle, a broken right wrist, "several" fractured ribs and "massive internal bleeding". Of his guilty plea to causing death by careless driving while under the influence of drink or drugs, entered on the second day of his trial, he said: "I want to take my side of the responsibility.
"If I wasn't driving that car, it wouldn't have happened. Because of the alcohol and drug levels in my blood and the speeding as well, the speed I was travelling at going into the bend."
Asked why he had pleaded not guilty to causing death by dangerous driving, Marsh told the jury: "Because Michelle grabbed the steering wheel. I actually fixed the steering wheel."
At the conclusion of his evidence in chief, he added: "I'd just like to say how sorry I am to Michelle's family. There's not a minute of any day that's gone by since then where I don't think about Michelle or how I could have done things differently - watching the videos since then, I'm actually mortified by what I've seen."
Marsh returned to the same court to be sentenced on Thursday. The father-of-three stood with his head bowed and appeared emotional, having been seen wiping away tears earlier in the hearing, as he was jailed for 16 years.
Mr Ball said during the hearing: "He has to accept that he has caused pain and distress to many members of Michelle Atherton’s family and friends. The other factor mentioned is the defendant’s previous conviction for drink driving in 2006 as a 26-year-old.
"He has previous convictions but not extensive or particularly relevant beyond that. A number of testimonials have been uploaded to the digital case system, in addition to a letter from the defendant’s 10-year-son.
"The defendant is a father of three children, and their father’s absence will be felt particularly hard. The defendant has previously been self-employed with a loft conversion business and has consistently traded in that business since 2010."
Marsh will be required to serve at least two thirds of his prison term before being released on licence. He was also banned from driving for 18 years.
Sentencing, Judge Aubrey said: "Lives have now changed forever, and her family will never be the same. She was, to them, the best mum to her sons and daughter, and their children have lost their grandmother and she will now never have the opportunity of seeing her children grow up or seeing any unborn grandchildren.
"She died alone in that car, you having left her to die alone because you were only thinking of your selfish self. Whilst at the scene she was calling out for her daughter - it haunts her daughter that she was left alone to die.
"Michelle Atherton, notwithstanding some issues she had, has been described as a kind-hearted and wonderful mother and grandmother. The family are left to mourn and grieve and will do so for the rest of their lives.
"I am satisfied that the deceased had not contributed in any way to the collision and she had not told you to put your foot down because a car was following you. There was no following car, you were seeking to dishonestly blame the deceased for the collision.
"You sought to blame everybody, including your own barrister. I do not hold that against you, but it provides you with no mitigation.
"Unconscious for a moment, you left the car having regained consciousness and you left your girlfriend to die. You then commenced a charade of deceit, the purpose of which was your own self preservation and protection.
"I am satisfied that you knew and remember precisely what you were doing and saying before you were ultimately arrested. You were not in shock, I am satisfied that you were behaving and speaking in a drunken condition.
"You are a father of three children aged 10, 13 and 16. You have one relevant conviction of driving above the prescribed limit, although that was a long time ago in 2006.
"The court has received a number of references, one of which is from your ex-wife. She describes you as a loving and deviated father who will do anything for anyone.
"I regret to say that, while it may be her experience, it is not borne out by your previous convictions of a domestic nature and that which you did on the 5th of July when you did absolutely nothing to help your girlfriend. You may well have expressed remorse in the witness box at the conclusion of your evidence in chief - in my judgement, they were hollow words, such was your defence in this case.
"I find little or no mitigation in your case and little or no remorse. I do take into account your heart condition.
"There is no sentence I can pass that will begin to equate for the loss of life and suffering sustained by the family and all those who loved Michelle Atherton. There is nothing the court can do or say that will reduce the suffering spoken of.
"You failed to stop in the sense that you left the scene in the knowledge your girlfriend was seriously injured, if not dying. You sought to blame the deceased by stating that she had contributed to her own death by taking hold of the steering wheel, which could only have exacerbated the grief held by her family."
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References
- ^ Kevin Marsh drank gin and snorted cocaine as he watched a Bear Grylls show on Netflix hours before getting behind the wheel (www.liverpoolecho.co.uk)
- ^ His partner Michelle Atherton died aged 47 in the crash (www.liverpoolecho.co.uk)
- ^ Teenage girl lured into back room of newsagents by shop worker and raped (www.liverpoolecho.co.uk)
- ^ The Liverpool Echo Premium app is just £12 for 12 months for a limited time (www.liverpoolecho.co.uk)
- ^ Liverpool Crown Court (www.liverpoolecho.co.uk)
- ^ his barrister Michael O'Brien withdrew from the case (www.liverpoolecho.co.uk)
- ^ St Helens (www.liverpoolecho.co.uk)
- ^ Newton-le-Willows (www.liverpoolecho.co.uk)
- ^ Aintree (www.liverpoolecho.co.uk)
- ^ Asda (www.liverpoolecho.co.uk)
- ^ Don't miss the biggest and breaking stories by signing up to the Echo Daily newsletter here (www.liverpoolecho.co.uk)