Dillon, R v [2009] EWCA Crim 678

Case No 2007/05696/D4[2009] EWCA Crim 678
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 10 March 2009
The Strand
London
WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE KEITH
and
THE RECORDER OF LIVERPOOL
(Sitting as a Judge of the Court of Appeal, Criminal Division)
Between
R E G I N ACrown- v -
Between
TERRY DILLON
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Mr Rex Tedd QC appeared for AppellantMr Gareth Evans QC appeared for Crown

J U D G M E N

[1]On 8 October 2007, at the Stafford Crown Court, before McKinnon J and a jury, the appellant was convicted of murder. He was sentenced to custody for life, with a recommendation that he serve a minimum of twelve years and 195 days. He appeals against conviction by leave of the full court.[2]The facts are as follows: at approximately 11.40pm on 4 May 2007, the appellant and his girlfriend saw Daniel Davis, the victim, in the street. The appellant and Mr Davis knew each other. There was an altercation between the two men. The appellant punched Mr Davis several times in what one witness described as a flurry of blows. However, the appellant insisted that it was Mr Davis who threw the first punch. Mr Davis fell backwards over a wire fence and landed on his back on the ground. The appellant also went over the fence, but he regained his footing. On the other side of the fence Mr Davis received at least two blows to his head.[3]Peter Waters, who was watching events unfold, but who had had a considerable quantity to drink, described seeing the appellant's body movements through the perspex screen of a bus shelter. He said it looked as if the appellant was kicking the deceased. He approached the scene, as did the appellant's girlfriend, Chantelle Moore. She pushed the appellant away from Mr Davis. They both left taking with them the deceased's mobile phone, about which the appellant later lied. Mr Waters attempted to resuscitate Mr Davis, but he could not find a pulse. He telephoned for an ambulance. Mr Davis was taken to hospital, where sadly he was pronounced dead in the early hours of the following morning.[4]Later the same day the appellant surrendered himself to the police. He provided them with items of clothing and a pair of trainers. When he was arrested he observed, "It was just a fight".[5]Dr Gupta examined the appellant that same day. He found the following fresh injuries: bruising around the appellant's left eye, a cut to his nose, multiple scratches to his neck and forehead and bruising to his sternum.[6]The defence case was that Mr Davis had punched the appellant and the appellant had punched him back in self-defence. He denied intending Mr Davis any harm, although he accepted that he may have kicked him or "nudged" him with his foot. He also accepted that he caused him to fall over the fence. He denied stamping on Mr Davis' head. He accepted that on any view he was guilty of manslaughter. He claimed Mr Davis' actions had provoked him. He had lied to the police, he said, because he did not wish to get his girlfriend into trouble.[7]The defence placed some reliance on Mr Waters' concession that he had drunk a considerable amount. He had also made a number of inconsistent statements. Further, they placed some reliance on the medical evidence which they suggested was inconclusive. The medical evidence came from a pathologist, Dr Acland. He found a number of injuries to Mr Davis: bruising to the middle finger of his right hand, bruising to the bridge of his nose and around the left eyelid, and bruising to the left mid-jaw and behind the right and left ears. He also found two round patterned marks from a trainer, one on the left side of the head behind the left ear, and the other above the left eyebrow and left ear. The marks were such as to have been caused by some significant force. He could not say whether the round patterned marks were caused by a stamp or by kicking with the heel. It seems to have been accepted during the course of the trial that the marks were caused by the appellant's trainer.[8]According to Dr Acland, the cause of death was traumatic subarachnoid haemorrhage (bleeding on the brain). This was due to the rupture of the left cerebral artery. This in turn had been caused by a sudden jerking back of the head to the right, upwards or backwards. Dr Acland said that this could have happened by the deceased falling awkwardly over the fence or as a result of a kick. Dr Acland opined that the first mark to the left side of the head behind the left ear caused by stomping or kicking was the most likely candidate for the fatal injury. The stamp or blow would have caused a violent movement of the head from left to right, throwing the head back and to the right, causing stretching of the left side of the neck. The second mark above the left eyebrow and left ear also caused by kicking or stomping was another rposible candidate for the fatal blow. Because the damaged artery was in a vulnerable area, he conceded that moderate force may have been sufficient to cause the actual rupture. This was more likely to be the case if Mr Davis had had a certain amount to drink and his muscles were relaxed. The pathologist also found further bruising to the left mid-jaw and behind the left ear. He was not sure of its causation, but it might have been from the toe part of a trainer. In Dr Acland's opinion this bruising appeared to have result from a less forceful impact than with the other two marks.[9]Mr Rex Tedd QC, on behalf of the appellant, has argued that the conviction is unsafe essentially for two reasons. He initially advised an appeal focussing on the judge's summing-up on intent and his answer to a jury question on intent. The directions McKinnon J gave were as follows:
"The third matter which the prosecution must prove is that the defendant intended to cause the deceased at least really serious physical harm. You cannot open up a man's mind or X-ray it and say, 'Ah, there it is. We can see his intention'. But what you can do, and are entitled to do, is to look at all the circumstances of the case, including what the defendant said and did, and ask yourselves what it was that the defendant intended in kicking the deceased to the head, if that is what caused the deceased's death, if it was not to cause the deceased at least really serious physical harm."
Mr Tedd takes exception to those final words. The judge continued: 10. "If the death resulted from an awkward fall over the wire fence, you may think the position is different. What the defendant was doing was driving the deceased backwards towards the wire fence, and could not be said at that stage to have intended to cause really serious physical harm." 11. "The prosecution say that in relation to the kicking this is a very clear case, namely, that the defendant did intend and must have intended to cause really serious physical harm, for why else would he kick, and kick forcefully as the prosecution say, the deceased's head? If on the other hand it may have been an awkward fall over the wire fence which caused the death then the defendant is guilty only of manslaughter. 12. The defence say that the defendant intended to cause the deceased no harm at all in kicking him or in causing him to fall over the wire fence. If you think that is true or may be true then the defendant is not guilty of murder, but is guilty of manslaughter by reason of lack of intent." A little later he returned to the same issue. He said: 13. "The issue here concerns the case if you conclude that one of the two kicks caused the death. In that case, the prosecution say that it is clear that the defendant must have intended to cause at least really serious physical harm. The defence say, 'Not so'. This is a case, the defence say, where the defendant kicked out instinctively without intending to cause really serious physical harm, but of course you will bear in mind that there were two kicks here. Before you can convict of murder, as I say, you have to be sure that the defendant did intend to cause really serious physical harm." Mr Tedd's objection to those directions may be summarised in this way. The judge's comments (a) amounted to strong comment favourable to the prosecution, and (b) omitted the thrust of the defence case on the issue.

Mr Tedd takes exception to those final words. The judge continued:

[10]Mr Tedd conceded in his oral submissions that, had those directions stood alone, he would not have been in a position to argue that they rendered the conviction unsafe. However, he asked the court to take into account the cumultative effect of the directions in the main body of the summing up coupled with the judge’s answer to the following jury question:
"Can we have a definition of 'really serious physical harm'?" 15. "
The lawyers use the expression 'grievous bodily harm', which perhaps is an old-fashioned expression, and so I have for a number of years used the ordinary English expression of 'really serious physical harm' to make it easier for juries perhaps to understand what is meant. 16. There is no simple definition of what is grievous bodily harm or what is serious, really serious physical harm. It is for you, the jury, to say what really serious physical harm is." 17. "There is no dispute here that the ruptured vertebral artery is certainly grievous bodily harm, or really serious physical harm. What you have to decide is, if the defendant kicked or stamped the head of this man, what his intention was, and although the actual effect of what he did may have been, and indeed was to cause, actually to cause really serious physical harm, you still have to look at all the circumstances and what he actually did to see what his intention was. 18. You are not going to get from me a list, if somebody thinks that this will help, or, if you like, on the left-hand side on a piece if paper what is in physical terms really serious physical harm, and on the right-hand side of the page what is not really serious physical harm. I am afraid life simply does not work like that. 19. I could go on talking like this for a very long time, and not help you very much. You are not going to get a definition which is going simply to answer it and I simply hand you the answer, 'Here you are. Here is really serious physical harm'. 20. It is for you to decide, and you have .... to look at all the circumstances and see what the defendant's intention was. I mean, what does one intend, you may ask, if you kick somebody in the head? I do not think I can say more than that. If you need more help, of course, I will try and give it, but I think that is the best that we can do. There you are."[11]Mr Tedd argues the combination of those directions has rendered the conviction unsafe. He argued that, by focusing on the consequences actually caused, the judge has equated two quite different concepts: an intention to cause grievous bodily harm, and the actual causation of injury. He rightly submitted that it does not inevitably follow that because the appellant caused grievous bodily harm, he intended to do so. He argued that the judge's directions appear to have all but ignored this distinction. He went further by suggesting that the comment "What does one think will happen when you kick someone in the head?" equates erroneously foresight of consequences with intention. The issue in this case was not whether the appellant foresaw grievous bodily harm, but whether he intended it.[12]The authorities, to which we do not need to refer, make clear, Mr Tedd argued, that foresight of the consequences of an action is no more than fact from which intent may be inferred. He submitted that if a judge introduces an element of foresight into his summing-up, it is incumbent upon him to give a careful direction on what is required to establish the necessary mens rea. In any event. Mr Tedd suggested the judge's "parting shots" (as Mr Tedd described them) were wrong in law; they were too strong a comment and they were destructive of the defence case on a central issue. They went beyond the matter raised by the jury's question.[13]Following the full court's grant of leave to argue that the directions had rendered the conviction unsafe, and its encouragement to explore the question of the mechanism of death, Mr Tedd has developed a further ground of appeal. He argued that there was no evidential basis upon which the jury, properly directed, could have concluded that one of the kicks caused the rupture identified as the cause of the deceased's death. The offence of murder was left to the jury on the basis that they could only convict if they were sure that one of the kicks caused the death. Mr Tedd submitted that this was not a case in which the jury had other evidence to consider apart from the expert medical evidence. The only evidence before the jury on this issue was that of the pathologist. If the pathologist left open the possibility the cause of death was an awkward fall, that was the end of the case. He reminded the court that on any view Mr Davis was driven backwards towards the fence and fell. It must be a real possibility he fell sufficiently awkwardly to cause the fatal injury.[14]To this ground Mr Gareth Evans QC, who now appears on behalf of the prosecution, retorted that the pathologist's evidence went far further. The pathologist opined that the most likely candidate for the fatal injury was one of the kicks. The pathologist accepted that he could not rule out other possible scenarios, but he considered these in detail when re-examined by prosecuting counsel at trial. Mr Evans’ summarised his views as follows. For Mr Davis to have died as a result simply of the fall, one of three things would have had to have happened: first, the deceased's head would have had to strike something and be deflected during the fall; second, the deceased's head would have had to have struck a prominence on the ground that had forced it backwards and to the right; and/or third, the deceased would have had to pivot on the fence so that he came down almost upside down on his head and then buckled. As we understand it, it was this final scenario upon which Mr Tedd placed reliance before us.[15]Mr Evans pointed out that the only person who could assist the jury on how the deceased actually fell was the appellant himself. Mr Evans observed that there was no evidence from the appellant or indeed from any other source to the effect that Mr Davis' head struck anything during the fall or on the landing, and certainly no evidence that he had pivoted and landed upside down on his head. The appellant never suggested any of the three scenarios postulated. The appellant thought that the deceased landed on his back and that he was conscious when he landed. To this last point Mr Tedd submitted that there was no evidence from the doctor as to when unconsciousness would have set in had Mr Davis received his fatal injury in the fall.[16]Further, Mr Evans reminded the court of evidence from the forensic scientist to the effect that the kick, which left a lace mark on Mr Davis' forehead, was delivered from beneath the head. This meant that the jury was entitled to conclude that the deceased was conscious and on all fours when he was kicked, and therefore to reject the awkward fall theory. Mr Tedd responded to this point by saying that, if it was of any significance, it is surprising that the judge did not refer to it in his summary of the expert's evidence and in his summary of the appellant's evidence. Further, if it was a point of great significance, he argued it was incumbent on the judge to make reference to it.[17]Given the seriousness of the offence of which the appellant was convicted, this issue was one which the full court, understandably, considered worthy of further exploration. However, with the assistance of Mr Evans we are now satisfied that this is an issue which does not assist the appellant, as Mr Tedd first advised. It is far from uncommon for an expert to accept the suggestion put to him in cross-examination that there are a number of possible causes of a particular phenomenon. When pressed, the expert may be prepared (as here) to offer an opinion on the most likely cause. It is then for the jury to assess all the evidence and decide whether or not they can be sure of the cause relied upon by the prosecution to prove their case. Here the cause relied upon, and said to be the most likely cause, was kicking to the head. There was compelling evidence that kicking to the head occurred. The jury was entitled to conclude on this evidence, coupled with the appellant's own evidence of how the deceased fell and how he allegedly merely nudged Mr Davis with his foot, that the kicking was the cause of death.[18]The case turned on the question of intent, to which we shall now return. We note that the judge began his summing-up with the conventional direction on the judge's functions. The judge made it crystal clear to the jury at that time, during the course of his summing-up, and in answer to the jury's question, that the facts were for them to decide. It is readily acknowledged that a judge is not obliged to summarise the evidence without making any comment upon it provided, of course, he leaves the issues to the jury fairly and he avoids descending improperly into the arena. Having read the summing-up and the judge's directions as a whole, we accept that the jury may have gleaned from the judge's comments that the judge had his view of what the appellant intended in kicking Mr Davis to the head. They may have gleaned that the judge saw considerable force in the prosecution's argument, "What else does one intend when one kicks someone in the head?" Some might argue that was a statement of the obvious. However, even if the jury were in a position to decide what the judge’s views were it does not mean the whole summing up was unfair. We have to consider these passages in the context of the summing-up as a whole. We have read all of the judge's directions. In our view, he fully and fairly set out the law, the issues and the evidence. He directed the jury to ignore his own views where they conflicted with theirs. Looking at the directions as a whole, and looking at the questions set for them in written form by the judge when they retired, the jury could have been left in no doubt as to their tasks, as distinct from the tasks of the judge. It was their task to answer the series of questions. Question 4 put it in clear terms:
"Are you sure that the defendant intended to cause at least really serious physical harm?"
Further on our reading of the judge's directions there is nothing in the body of the summing-up, or in his answer to the questions to suggest that he may have confused the jury with the question of foresight of consequences. Time and time again he directed the jury that their task was to decide the question of intent.[19]Accordingly, having carefully considered all of Mr Tedd's submissions with care, and despite his customary eloquence, we are driven to the conclusion that there is nothing in the judge's summing-up or the answers to the jury's question, taken either individually or cumulatively, which has led us to doubt the safety of this conviction. The appeal must be dismissed.