O'Leary, R. v [2013] EWCA Crim 1170

[2013] EWCA Crim 1170Case No 2012/3876/C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 11 June 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE EDWARDS-STUART
Venue THE RECORDER OF BRISTOL
HIS HONOUR JUDGE FORD QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
MICHAEL O'LEARY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr M Magarian QC appeared for Applicant
J U D G M E N T

LORD JUSTICE ELIAS:

[1]This is a renewed application for leave to appeal against conviction following refusal by the single judge. The applicant was sentenced to imprisonment for life with a 13½ year minimum term by the Recorder of Norwich, His Honour Judge Jacobs, following his conviction for murder.[2]The background briefly was this. Ron Beecham was killed by the applicant in the early hours of Monday 5th December 2011. They had been out drinking together with Cassandra Fiske. The deceased and Fiske were old and close friends with a platonic relationship. The applicant was homeless. He had been temporarily staying with Fiske at the request of her brother, Mr Georghiou. There was some evidence that on the night in question when they were out drinking, the applicant had been aggressive and loud in the ex-servicemen's club which they had frequented.[3]When they got home, which was in the early hours of 5th December, the applicant suggested that the deceased had sexual designs on Fiske. He made threats of violence. Fiske told him to leave. At that point he dragged the deceased to the ground and repeatedly kicked him. Fiske left the house to get help. Subsequently paramedics arrived. One of them, Tony Smith, noted that the deceased had an angular v-shaped injury on his left temple. The victim's heart had stopped. He survived for a few days but died without ever regaining consciousness.[4]Following his arrest, which was at the time for a section 18 offence, the applicant was taken to Bury St. Edmunds Police Station. He arrived at 2.30 in the morning and was observed by Police Sergeant Mackie to be belligerent and uncooperative, refusing to wear prison clothes and so forth. Prior to his arrest he was alleged to have made admissions to Mr Georghiou and Mr Georghiou's next door neighbour, Peter Walsh, that he had carried out an attack on the deceased.[5]There was a post mortem examination carried out by Dr Carey who found rib fractures, although these could have been caused in attempts at resuscitation, and also a number of facial injuries. These were consistent with kicking and stamping. The applicant's left shoe had a pattern of fine droplets of stray blood consistent with evidence of multiple impacts.[6]The defendant's case was that he had not assaulted the deceased. The injuries had been caused by a drunken fall possibly as a result of a cardiac arrest.[7]There were two material rulings which are the subject of appeal. First, the prosecution applied to admit evidence of a conversation which took place between the applicant and his son at a police station on 5th December. He had been informed that the conversation would be monitored and recorded. In the course of that conversation he appeared to explain his conduct by reference to separation from his wife. He indicated that he expected to be in prison for a few years and, according to the prosecution, the whole assumption behind his comments was that he had carried out this assault. The defence contended that this was highly prejudicial material, and that it was a conversation between father and son which ought not in the circumstances be admitted. It was essentially about bail and other matters and had nothing to do with the nature of the offence. The judge considered that if the conversation could throw light on the applicant's attitude towards the accusations against him, it was potentially relevant and should be considered by the jury. Here the material was, in the judge's view, capable of supporting the prosecution case.[8]The second ruling concerned an application to adduce the evidence of Police Sergeant Mackie about the applicant's behaviour at the police station shortly after the arrest. The prosecution relied on this to show the aggressive and unstable behaviour shortly after the incident which, they submitted, was relevant to the applicant's state of mind. The prosecution also contended that it was potentially relevant for the jury to assess the reactions of a man who had been charged with this violent crime. They submitted that he would not act in this belligerent way if all he had seen was a man collapsing and dying in front of him. The defendant submitted that his reaction to the officer was not necessarily consistent with guilt at all and could be explained in a number of other ways. Again, the judge concluded that the matter, including the defence explanation, should be left to the jury and that it was potentially material evidence. It is right to say, however, that in his summing-up he played down the significance of this evidence. He said this to the jury in relation to the policeman's evidence:
"The submission made by the Crown is that this shows he is still in something of a wound-up state and this is not consistent with a man who simply watched somebody collapse in front of him and he is therefore completely innocent. The defence submission is that you are dealing with a man who has done nothing; was very upset and distressed. All matters are for you to consider, but you may well consider that his behaviour at the police station at this point does not throw significant light upon whether he behaved violently at Mrs Fiske's house."
Counsel, Mr Magarian QC, submits that the judge was wrong with respect to each of these rulings and that neither sources of evidence ought to have been admitted.[9]As to the conversation with the son, counsel submits that the defendant could not be criticised for failing to reveal his defence in a private conversation. It was wrong and indeed Orwellian for prosecution counsel to assert that there had been a failure to assert the defence case. This, we think, misunderstands the significance of this evidence. If and in so far the prosecution were contending that the defendant could be criticised for not indicating his defence in that conversation, that would plainly be wrong. There is no obligation to assert a defence case and no proper inference can be drawn from the failure to do so in a conversation of that nature. But that is not the reason the evidence is admissible. It is rather that the conversation was, at least on one view, consistent with somebody who has accepted that he has carried out an assault. He did not have to deny it. He did not have to say anything about it. But if what he did say could reasonably be inferred as consistent with his having carried out an assault and inconsistent with his contention that he had not attacked the deceased at all, then it was plainly material evidence in support of the prosecution case. In our view, there no reason why it should not have been admitted.[10]This ground links with the separate contention that when the judge dealt with this evidence in his summing-up he did so unfairly and confusingly. The judge initially referred to this evidence in his summing-up when he referred to the transcript of the conversation which was before the jury. He recounted the inference which the prosecution wished to draw from it and also the contention of the defence, namely that it was not a confession at all and betrayed no admission of guilt. He then said to the jury:
"Really a lot of these issues are just for you. Your own assessment. Your own analysis."
Counsel, quite properly, submitted to the judge that in his view this had not sufficiently put before the jury the way in which they should deal with this evidence. He asked the judge to make it clear that the jury should only have regard to this conversation if they were sure it amounted to a confession. The judge then at some length told the jury that they could only use this evidence if they were satisfied that it did amount to some kind of confession that there had been an assault. (Of course at that point it was not a confession of murder because the deceased had not then died. If it was a confession at all, it was merely to assault.)[11]We were taken to the passage in the summing-up by Mr Magarian. He says that the judge had at one point indicated to the jury that there was no confession but had then gone on to leave it to the jury to infer that there might have been. That would indeed have been confusing. We do not accept that the judge erred in that way. In our view the judge in his summing-up is indicating there was no specific confession but that whilst there was no express statement by the applicant that he had carried out an assault, the jury had to decide whether it was reasonable to infer that the conversation implied such a confession. The judge went on to remind the jury that even if there was, that would be consistent both with manslaughter and with murder. Counsel also submits that reading this conversation, it simply was not open to the jury to infer that there was any kind of admission that the applicant had carried out an assault at all. We reject that submission. It seems to us that it was a perfectly proper inference that could be drawn from that conversation if the jury thought it appropriate to do so. The other ruling we have identified relates to the evidence from Police Sergeant Mackie. Again, it seems to us that this was evidence which the judge was entitled to leave to the jury. It was not of very great significance, but it did cast potentially some light on the attitude of the defendant soon after the alleged attack. The judge’s summing-up was very fair. In the light of the defendant’s explanation of the conversation, the judge properly advised the jury not to put too much emphasis on this evidence. Counsel says that nonetheless this would have been highly prejudicial and should not have been admitted at all. We respectfully disagree. The judge summed up in any event in a perfectly fair way, effectively telling the jury to pay little attention, if any, to it and we think there is no reason to suppose that the jury would not have followed that direction. We think there was no adverse prejudice even if, contrary to our view, this evidence ought not to have been admitted. The third ground relates to evidence of a paramedic who suggested that the angular injury to the left temple might have been caused by falling onto furniture. Counsel submits that he wished to be able to cross-examine the paramedic on this matter. The judge refused on the grounds he was not an expert. We find this a rather surprising submission. The evidence from this paramedic would have been to the effect that the v-shaped injury was caused by the fall. Nobody was suggesting that it may not have been. Indeed, Dr Carey himself recognised that some of these injuries may have been the result of a fall. So it was not in any way inconsistent with Dr Carey's evidence. It would not have been open to the paramedic to give evidence on the wider question of whether other injuries were consistent with an assault or not. He was certainly not expert in relation to those matters. It was open to the defence to call their own expert. We were told they did engage an expert but in the event chose not to put his evidence before the jury. That is the prerogative of the defence, but they can hardly criticise the judge for not allowing a paramedic to give evidence in the expert’s place. To the extent that Mr Smith's evidence would simply have been that it was his view that this v-shaped mark had been caused by a fall, it would have added nothing to the evidence before the jury. Mr Magarian says it would have made more forcefully the point he wished to make about the possibility of a fall. We see no basis for that assertion. Finally, there is a complaint about the way the judge summed up in relation to causation. The defence case, as we have indicated, was that these injuries were caused as a result of the deceased falling and injuring himself as a consequence. The judge dealt with this evidence at pages 32 and 33 of the summing-up. He recounted the defence case that the injuries could easily have been caused by furniture. Again Mr Magarian was unhappy about the way in which the judge had summed up on this matter. He thought that this possibility should have been put more forcefully to the jury and expressly raised the matter with the judge. The judge then came back to the matter at pages 62 and 63 of his summing-up. He put very fully what the defence case was and reminded the jury of Dr Carey's evidence. Counsel submits that this was all rather late in the day and that it would not have been specifically and forcefully enough in the minds of the jury when they came to reach their verdicts. We do not accept that. It is commonly the case that counsel asks for a judge to expand on parts of the evidence in order to ensure that the jury has the defence case fully in mind. When a judge accedes to that request, it is not a very attractive submission to this court to say that it all came too late and really the jury would not have been likely to follow the judge's directions. We are not in fact sure that it was necessary for the judge to add anything to what he had earlier said in his summing-up. But the fact is that he did, it was very much putting the points which counsel wanted him to put, and so the issue was very fairly before the jury. In our judgment, there can be no complaint about it.[12]In our view this summing-up was very fair. We do not accept that there were any material errors in the way the judge dealt with the evidence. There was plenty of evidence here to support this conviction, not least the confession by the applicant himself to two independent witnesses that he had assaulted the deceased. It was also in that context that the judge had to consider whether to admit the evidence of the conversation between father and son. Notwithstanding the submissions of Mr Magarian forcefully urged before us, we do not think this appeal has any prospect of success and we refuse permission.[13]MR MAGARIAN: I think I know the answer to the next question, my Lord, the question of a representation order.

LORD JUSTICE ELIAS: I am sorry, no. But thank you.