O' Leary, R. v [2006] EWCA Crim 3222

Case No 200603013/C3

[2006] EWCA Crim 3222

IN THE COURT OF APPEAL

CRIMINAL DIVISION SITTING AT BIRMINGHAM CROWN COURT

Date Date: WEDNESDAY, 29th November 2006

QUEEN ELIZABETH II LAW COURT

1 Newton Street

Brimingham B4 7NA

B E F O R E:

SIR IGOR JUDGE

(PRESIDENT OF THE QUEEN'S BENCH DIVISION)

MR JUSTICE FORBES

MR JUSTICE TREACY

Between

R E G I N ACrown

-v-

Between

ALEX AKA PAUL O'LEARY AKA DWYER

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MISS S WASS QC & MISS K WILKINSON appeared for APPELLANT

MISS E MARSH QC appeared for CROWN

J U D G M E N T

SIR IGOR JUDGE: This is an appeal against conviction by Alex O'Leary otherwise known as Paul Anthony Dwyer, who on 22nd July 2002 in the Crown Court at Norwich, before His Honour Judge Mellor and a jury, was convicted of murder.

[2]The single ground of appeal in this case is that there is fresh evidence which undermines the credibility and the accuracy of the main prosecution expert pathologist witness, Dr Michael Heath, so as to leave a conviction based upon his evidence unsafe.

[3]The Single

Judge giving leave to appeal observed:

"The crucial issue in this case was self-defence. The expert interpretation by forensic pathologists was very important in relation to that issue, particularly since the division between the experts was about interpretation, not fact... Given the history here, it is appropriate to grant leave."

[4]The Crown's position is found in one short passage from the written skeleton argument, which reads:

"In the circumstances that is after and a detailed analysis, the appellant has sound arguable grounds which are difficult to refute, the Crown would seek, if the conviction were quashed an order for retrial, and if the conviction were quashed, then the appellant accepts that would be an appropriate order."

We have concluded that this conviction is unsafe and we shall make such an order.

[5]It is therefore necessary to summarise the facts very briefly. The deceased was a man called Peter Brown. He was killed late on 25th October 2001, at an address in Ipswich where the appellant had frequently stayed with his girlfriend, a woman called Tara Smith.

[6]The cause of death was multiple stab wounds. There were over 20 stab, slash or puncture wounds. There were no less then five such wounds to the neck, three of which would have been fatal and one of which entered the jugular vein, and damaged it and caused an air embolism to the heart.

[7]It was not in dispute that the fatal blows were inflicted by the appellant. He admitted that he had stabbed the deceased with a bowie knife and that the death of the deceased was consequential on the blows administered by the appellant.

[8]His case was that he had acted in self-defence. The deceased had come to the flat in order to sell drugs and to settle a debt and gradually an argument had developed between them. His case was that it was the deceased who had produced the knife first and, afraid for his life, he had grabbed hold of the knife with his left hand. The two of them had struggled. At one point the deceased was lying on top of him. By now he had wrestled the knife away from the deceased and in the course of the struggle, acting in self-defence, the deceased had been stabbed and sustained the wounds to which we have already referred.

[9]Understandably, in the light of all the evidence, the Crown did not accept that the appellant was acting in self-defence and relied and still relies on the evidence of his behaviour, both before and after the event, as providing the basis on which to refute self-defence. However, there was no independent evidence about the circumstances in which the fight had started or indeed any independent evidence about who had first produced the knife.

[10]The difficulty with this conviction arises from the evidence of Dr Heath, the pathologist called by the Crown. Putting the matter as neutrally as we can for the moment, his standing as an expert witness at any rate in relatively recent cases has been called into question (see the decision of this Court in Puaca; see also the findings of the Home Office Policy Advisory Board whose adverse findings against him were followed by Dr Heath's resignation in the autumn of this year from the Home Office Register of Pathologists).

[11]We want to make as clear as we can in the course of this judgment that it does not necessarily follow from these criticisms that every case resulting in a conviction in which Dr Heath has given evidence for the Crown should or will be treated as unsafe. We expect the Crown to do what the Crown has done here, which is to analyse the precise nature and importance of Dr Heath's evidence to the conviction, in the light of the particular circumstances of the individual case and the issues which arose at trial.

[12]Even if Dr Heath's evidence was challenged at trial, it does not follow that the convictions will all be unsafe. Some will remain safe, even if his evidence lent support to the Crown's case. Some, of course, and this is one, will not.

[13]The issue, here, was self-defence. Pausing, one may wonder why expert evidence was needed at all by either side, but that is a separate question. The expert evidence was put before the jury for its consideration.

[14]There were three aspects in which there was a conflict between Dr Heath and Dr Carey, a distinguished pathologist called by the defence, and we summarise them in three questions:(i) was the fatal blow struck during the fight, or after the deceased was so fatally wounded that he could fight no longer?

(ii) was the force required to inflict injuries sustained by the deceased moderate force or severe force?

(iii) were the wounds found on the defendant's hands defensive wounds or not?

[15]As to first two questions, we doubt whether, taken on their own or together, the differences of expert opinion were of substantial significance to the decision to be made by the jury. We are not making a definitive ruling on the point. We have not invited argument on it and we have not heard any because we did not invite it. But we simply observe that even if the jury had accepted Dr Carey's evidence on those two questions in its entirety, in reality that evidence appears to us at the moment, without having heard argument, to add little weight to the defence.

[16]The third question, however, did have some serious importance, because in essence Dr Heath simply refuted the suggestion that the wounds on the appellant's hands were or could be wounds which were sustained when he was wresting the knife from the deceased. The judge, in his summing-up, dealt with the issue of the injuries to the appellant's left hand and his account that he faced the knife coming to him from a right-handed man and grabbed the blade with his left and managed to take it off the deceased, who was described as "the stronger man". He said:

"The left hand is something that Dr Heath dealt with. He said that the inline palm injuries were compatible with being defence injuries. His view looking at the whole hand, and the angle to see the other cuts was that he could not see how these could ever have been defence injuries."

That is a very clear, the defence would say, dogmatic piece of evidence of expert opinion evidence.

The judge then returned to Dr Carey:

"Dr Carey described the hand injury as compatible with the grabbing of something like the bowie knife, did not make any direct reference, specific reference to the other cuts. But Dr Badcock (whose evidence was read to the jury) had himself said 'in particular the cut to the left palm, together with the other superficial scratches are compatible with the left hand taking hold of a sharp blade.'"

So there was the issue, clear and direct.

[17]In our judgment, Dr Heath's disputed evidence on this topic could reasonably be said to have been an important feature of the Crown's case in seeking to disprove self-defence. In those circumstances, we conclude that the conviction was unsafe. It will therefore be quashed. We shall order a retrial. The Crown has asked for a six-week period in which to examine its position -- I hope that is putting it reasonably neutrally. We shall certainly allow that, but we shall direct that the appellant should be rearraigned on a fresh indictment with 2 months of today's date.

[18]The single count which has been quashed is the offence of murder. It is that offence which will be retried on a fresh indictment.

[19]There will be a representation order for the appellant for the retrial. We think that the order should cover leading and junior counsel and solicitors. As to custody or bail, we need to hear submissions.

[20]MISS WASS: No application, thank you.

SIR IGOR JUDGE: The appellant will be remanded in custody pending the retrial. The venue will be decided by the presiding judge on the southeastern circuit. As to where it should take place, that I think must depend on the convenience of the witnesses who may or may not be available.

[22]FOR THE CROWN: They are all available and the convenience for the witnesses is Ipswich.

SIR IGOR JUDGE: Is that any problem for you?

[24]MISS WASS: No.

SIR IGOR JUDGE: We shall suggest, though we are not making the order; as we have said, it is for the presiding judge, that on the information we have Ipswich Crown Court would be the appropriate venue. It is of course important there should be a judge there who is authorised to try murder cases because this case should now take place as soon as practicable. It may be necessary for the presiding judge to say Norwich rather than Ipswich, if there is an available murder authorised judge at Norwich rather than at Ipswich.

[26]Very well, stand up. I hope you have understood. Your conviction has been quashed for the reasons we have given. There will be a retrial of these issues. In the meanwhile you will be remanded in custody. Thank you very much.