Metcalfe, R. v [2016] EWCA Crim 681

[2016] EWCA Crim 681Case No 2015/1717/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice, Strand London, WC2A 2LLDate Friday, 20 May 2016
B e f o r e
LORD JUSTICE BURNETT
MR JUSTICE HICKINBOTTOM
MR JUSTICE SOOLE
Between
R E G I N ACrownV
Between
EDWARD METCALFE
Computer-Aided Transcript of the Stenograph Notes ofWordWave International Limited trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr D Crigman QC appeared for Applicant for The Crown did not appear and was not represented
J U D G M E N T (As Approved by the Court)
[1]MR JUSTICE SOOLE: This is a renewed application for leave to appeal against the applicant's conviction for manslaughter in the alternative to murder of his partner Tracy Topliss by a unanimous verdict on 18th March 2015 at the Crown Court at Birmingham. The applicant was sentenced to five years' imprisonment. The sole ground of appeal is that the judge should not have admitted an animation produced by a prosecution expert, Dr Bowley which illustrated her opinion as to how the death had occurred.[2]In the early hours of 15th November 2013 the applicant made a 999 call to the ambulance service. He reported that his partner was lying at the foot of the stairs at their home. He thought she had fallen down the stairs in the night. Paramedics attended and found her in the hallway. She was pronounced dead. Initially the death was treated a accidental. A Coroner's post mortem concluded that a significant head injury directly contributed to the cause of death. A second more rigorous examination by a forensic pathologist, Dr Hunt revealed a displaced tripod fracture to the right cheekbone which he attributed to a hard punch, a fracture to the skull with subdural and sub-arachnoid bleeding and bruising to the shoulders. The pathologist's opinion was that the overall pattern of injuries was not what he would have expected from a fall down a flight of stairs. There were no abrasions on the stairs.[3]Following arrest, the applicant gave a no comment interview on legal advice.[4]The central issue was whether the injuries were caused by a punch on the face followed by a catastrophic backwards fall leading to a fractured skull and rapid death or by an accidental fall linked to the evidence of heavy drinking. There was extensive expert evidence addressing this issue.[5]Two items of furniture featured prominently in the evidence - a small coffee table and a crate. On the table were found airborne spots of blood matching Miss Topliss's DNA. As to the crate, police photographs taken about three hours after the applicant's 999 call showed an undamaged crate at the bottom of the stairs between the body and the staircase. There was substantial disputed evidence as to whether the crate had been moved before the police arrived.[6]The defence case was supported by evidence from a consultant maxilla-facial surgeon, Dr Rivington. He said that the tripod fracture was equally consistent with a fall and a hard punch. In addition Mr Michael Brown, a mechanical engineer and expert in accident reconstruction gave his opinion that a fall from the stairs could result in the head and shoulder hitting the table and with no or little contact with the stairs or carpet. After falling and sustaining the skull fracture and some shoulder injuries on the table, the deceased could have staggered on and collapsed further than the stairs and struck her cheek on the laminated floor. He accepted that if the crate had been at the bottom of the stairs when she fell she would have hit it causing damage.[7]The prosecution case was supported by the evidence of Dr Susan Bowley, an expert in bio-medical engineering and kinematics. She was called to give her opinion on the way in which Miss Topliss came to suffer injuries and to be where she was found. She illustrated her opinion and her view of Mr Brown's rival opinion by means of animations prepared for her. These depicted the male as significantly large than the female. The applicant is six foot four inches tall and Miss Topliss was five foot two inches or five foot three inches.[8]No objection was taken to the general admissibility of Dr Bowley's evidence which satisfied the requirements of Criminal Practice Direction 19A.1. However, objection was taken to the animations. In his ruling

the judge recorded the objection as:

"... that it consists of animations as opposed to simulations. The difference is that simulation is a scientific model produced by a computer in accordance with set parameters entered into its program. It follows that if the parameters are reasonable and the programme is an appropriate tool then a simulation has scientific value over and above the expert's opinion, but animation is different in that it is no more than a depiction of an expert's views and therefore is no more valid than the view itself. Mr Crigman's main objection is that these animations represent high impact material which have the potential to mislead the jury. He also argues that Dr Bowley will only place two alternatives before the jury whereas the reality is that there are many possible scenarios in what is a complex case."

The judge then concluded:

[9]i. "The first question for me is whether these animations are relevant and will assist the jury. In my judgment they will. Dr Bowley's opinions involve the body of the deceased moving in a complex manner, and it will help the jury to understand her views to see them illustrated. ii. The next question for me is whether the production of these animations is unfair within the terms of section 78 of the Police and Criminal Evidence Act. In my judgment they are not. The jury can and will be directed as to what an animation is and what its limitations are. The difference between animation and a simulation is not difficult to understand and with that understanding the jury will not be tempted to place undue reliance upon this material. iii. The fact that Dr Bowley only places two alternative animations before the jury is a matter for evidence and cross-examination. If the jury accept the proposition that there are many possible scenarios then they will inevitably view Dr Bowley's animations in that light. In my judgment there is no risk of them being misled by this material into accepting that there are only two possibilities in circumstances where in the absence of this material they would have taken a different view."[10]When Dr Bowley gave evidence in chief the judge intervened before the animations were shown to ask prosecution counsel first to establish what an animation is:
"... so that we do not embark upon this process with the jury thinking they may be about to see something which, in fact, it is not?"
Counsel then asked Dr Bowley to explain the difference between an animation and a simulation. She replied:
"An animation is a cartoon. I can make anything I want appear in the animations ... A simulation uses physics to model movement, okay? There may be limitations to that. We can get into that later."

The judge then intervened again:

"So, the important thing for the jury to bear in mind here is that what they are seeing is just a visual depiction of your opinion. Your opinion may be right or wrong -- that is for them to decide -- but what they are seeing does not add anything to your opinion; it is just to help them understand it."
[12]She replied that it was a "visual illustration" of her opinions.[13]In the course of a necessarily lengthy cross-examination, Dr Bowley was challenged on the basis that her opinion and therefore her animation depicting that opinion defied the law of physics. She disputed this. She rejected an alternative explanation put to her by Mr Crigman, stating that it did not make sense from a biomechanics viewpoint.[14]Under a range of heads Mr Crigman says, as he did to the jury, that her evidence was discredited. Amongst other things that she had changed the position of the table and the crate in re-examination from the position she had placed these items when creating the animation and had misunderstood the direction of force upon the deceased and the table.[15]There is no criticism of the judge's summing-up. He gave the usual general directions on expert evidence and summarised the cross-examination of Dr Bowley and the many criticisms of her evidence. As to animations

the judge said this:

"Now, you will remember that in explaining her opinion to you Dr Bowley showed you an animation and you should bear in mind that, to use her description, the animation is no more than a cartoon. She, in effect, has simply created a depiction, a moving depiction of her opinion and as she accepted she could have made the computer do anything that she had wanted to. It follows that in so far as the animation helps you understand her opinion it is relevant, but that is the limit of its relevance and, in particular, the animation cannot in any way add further support to Dr Bowley's opinion."
[16]The judge then reminded the jury of what he described as "the two main scenarios which have been explored with the various experts". Quoting him: i. "Scenario one, in effect the prosecution case, a punch to the cheek leading to the head and perhaps head and shoulders striking the side of the table. ii. Scenario two, a fall down stairs from a low step leading to an impact with the table which is then followed by movement and a subsequent fall to the floor."[17]When dealing with the second scenario

the judge emphasised that:

"... the defence do not have to prove that this is what happened and nor do they necessarily say that it was. As you know, the defence submit that this is a complex situation with many variables and at its highest they regard this situation as being one of a number of possibilities."
[18]Mr Crigman submits that if and to the extent that Dr Bowley's evidence was discredited, it must follow that the animations were equally discredited. However, their very existence would give the animations a continuing high impact shock and subliminal prejudicial effect, magnified by having them with them in retirement. The animation showed, it is submitted:
"... a faceless, menacing, grey hulk (the applicant) confronted a graphic and humanised woman with clothing and facial features (the deceased) in the hallway of the home..."
[19]and so added further prejudice. Furthermore, it focused attention on two scenarios thus excluding other possibilities. Accordingly, and as he had submitted at the outset, the animation should have been excluded under section 78 of the Police and Criminal Evidence Act.[20]In oral submissions today, Mr Crigman further submitted that the animation is to be distinguished from her opinion in that it independently defied the law of physics and so was in that way additionally misleading and prejudicial.[21]We do not, having considered the cross-examination and the essential point being made about the illustration, accept this distinction can be drawn. The challenge was to her opinion as defying the laws of physics and in other respects. If and to the extent that the opinion did so defy or was otherwise erroneous, then so was the illustrative animation.[22]In our judgment, for the reasons essentially given by the single judge, there is no arguable basis of appeal. By the terms of his ruling, his intervention during evidence and his clear directions to the jury, the judge understood and made clear that the animations were no more than an illustration of Dr Bowley's opinion and did not constitute any form of independent scientific evidence. The jury, properly directed as it was, would be quite able to understand the distinction between animations and simulations and to take account of alternative scenarios. The judge's decision to admit the animations was well within the ambit of his discretion under section 78. The challenge to Dr Bowley's evidence on the various matters identified in the grounds of appeal were all squarely put before the jury, as was the possibility of other scenarios. We do not accept that there is any arguable basis for submitting that the animation was capable of having a subliminal effect which could undermine their focus on the evidence, the defence's extensive criticisms of Dr Bowley, the other scenarios, or the clear directions from the judge. The application for leave is therefore refused.