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Criminal law – Murder – Self-defence – Provocation – Evidence – Relationship evidence – Admissibility – Admissible on question of intent – Not admissible as propensity evidence – Expert evidence – Evidence that knife wounds were self-inflicted – Whether a matter for expert evidence – Whether witnesses qualified as experts – Evidence shown to have no proper foundation after being admitted – Trial judge’s refusal to withdraw evidence from jury – Conflict in expert evidence – Jury must be satisfied beyond reasonable doubt of the correctness of the preferred evidence: R v ANDERSON, COURT OF APPEAL

R v ANDERSON (2000) 1 VR 1

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VICTORIAN REPORTED JUDGMENTS
R v ANDERSON

COURT OF APPEAL
(2000) 1 VR 1
5 August 1999; 25 February 2000
25 February 2000
CATCHWORDS: Criminal law – Murder – Self-defence – Provocation – Evidence – Relationship evidence – Admissibility – Admissible on question of intent – Not admissible as propensity evidence – Expert evidence – Evidence that knife wounds were self-inflicted – Whether a matter for expert evidence – Whether witnesses qualified as experts – Evidence shown to have no proper foundation after being admitted – Trial judge’s refusal to withdraw evidence from jury – Conflict in expert evidence – Jury must be satisfied beyond reasonable doubt of the correctness of the preferred evidence – (VIC) Crimes Act 1958 (No 6231) s 568(1).

HEADNOTES:
The accused was charged with the murder of a woman with whom he had had a volatile and at times violent relationship over a number of years. There had been an altercation between them in which the deceased suffered knife wounds to various parts of her body and head wounds inflicted by blows. The accused also had a number of stab wounds. In the accused’s record of interview with the police he said that the deceased had attacked him, stabbing him and that he had retaliated but without meaning to kill her. The record of interview also contained an account of the relationship between the deceased and the accused which was favourable to the accused. At the trial the Crown led evidence, over objection, of the relationship which showed that the accused had assaulted, threatened and abused the deceased. The trial judge admitted this evidence on the basis that it was relevant to the jury’s consideration of the issues to be raised in the case, particularly those related to the accused’s state of mind at the time of the alleged offence. The judge directed the jury that they could use this evidence to understand the relationship between the accused and the deceased and the background to the events in question, to assist them to understand what was then in the minds of the accused and the deceased. He gave a strong propensity warning about it.

The defence relied on self-defence and provocation. The Crown’s primary contention was that the accused’s wounds were self-inflicted. Over objection, the trial judge admitted expert evidence from three prosecution witnesses on this question. They were the doctor who initially examined the accused, the surgeon who subsequently treated him and a forensic specialist. The doctor and the surgeon both expressed the opinion that the wounds were self-inflicted. Neither had undertaken any study of characteristics and patterns of wounds. The doctor admitted his examination of the accused had been brief. The surgeon said his conclusion had been based on the downward angulation of the abdominal wounds. But the forensic specialist said that was not conclusive and his evidence was equivocal on whether the wounds were self-inflicted. A forensic specialist called by the defence expressed the opinion that the accused’s wounds were not self-inflicted. The trial judge rejected defence counsel’s request for a direction to the jury to disregard the evidence of the doctor and the surgeon and told the jury it was for them to determine which of the experts they preferred.

The accused was convicted and sought leave to appeal against conviction on the grounds that the relationship evidence should not have been admitted, that the judge misdirected the jury on it and that the expert evidence should not have been admitted, should have been withdrawn from the jury after being admitted and that the judge misdirected the jury on it.

Held, granting leave to appeal and allowing the appeal: (1) The relationship evidence led by the Crown was properly admitted as relevant to a fact in issue in the trial, bearing on the state of mind of the accused at the relevant time and upon the issues of self-defence and provocation. It was also made relevant by the admission into evidence of the accused’s account of the relationship in his record of interview. Given the accused’s admission that he stabbed the deceased and the judge’s strong propensity warning to the jury, there was no danger that they had used the evidence for the impermissible purpose of demonstrating that the accused was the sort of person likely to have committed the crime charged. [30]-[38].

Wilson v R (1970) 123 CLR 334; R v Ritter (unreported, NSW Court of Criminal Appeal, 31 August 1995); R v Peake (1996) 67 SASR 297, applied.

R v Tektonopoulos [1999] 2 VR 412, referred to.

Pfennig v R (1995) 182 CLR 461, distinguished.

(2) The trial judge’s direction to the jury on the relationship evidence did not contain any material misdirection, although it might have gone further in telling the jury how they could use the evidence. [39], [40].

(3) Accepting that there is an organised body of knowledge, based on the study of the characteristics and patterns of wounds, from which one may infer by comparison with recognised standards that particular wounds are self-inflicted, the evidence of the opinions of the doctor and the surgeon should not have been admitted in this case. Neither of those witnesses had shown himself to be qualified to express an opinion in the field of expertise and neither had demonstrated any factual or scientific foundation for the opinions expressed. [55], [58], [68]-[72].

Clark v Ryan (1960) 103 CLR 486, referred to.

(4) The trial judge should have directed the jury to disregard the opinions of the doctor and the surgeon after it had become clear there was no proper foundation for them. [59], [60], [73].

(5) Furthermore, the judge misdirected the jury on the expert evidence by simply telling them it was for them to determine which of the expert witnesses they preferred. Given the conflict in the expert evidence and that it went to the critical issue which would conclude the guilt of the accused, the jury should have been told that they could only prefer the opinions of certain witnesses to those of others if satisfied beyond reasonable doubt that the former opinions were correct. [61].

(6) The introduction of the inadmissible opinion evidence deprived the accused of a fair chance of an acquittal and the proviso to s 568(1) of the Crimes Act 1958 could not be applied. [62]-[65], [75].

JUDGES: WINNEKE P, PHILLIPS and CHERNOV JJA

JUDGMENTS: Winneke P.

Facts

At about 12.15 in the morning of Sunday, 2 April 1995, the applicant Warren Anderson (then aged 32 years) appeared at the front door of the police station at 9 Patrick Street, Stawell, a country town in the Wimmera region of Victoria. He was seen by Senior Sergeant Mintern-Lane. The applicant said “Help me — I’ve been stabbed.” He was wearing socks, but no shoes. He also said “She’s worse; she’s at 180 Main Street.” Mintern-Lane asked to see his wounds and the applicant lifted his shirt. Upon further questioning he also said that “She started it, and I threw the knife on the footpath”. Mintern-Lane took the applicant out to his car and put him in the passenger seat. The police officer then drove the applicant to the Stawell Hospital.

At a time which appears to have been approximate to that at which the applicant appeared at the police station, one Cherie Cameron saw some men assisting a woman out of the doorway of the premises at 180 Main Street near a phone box adjacent to those premises. The woman, as it later appeared, was Kim Bauer, the girlfriend of the applicant, who had been badly injured and was suffering from knife wounds to various parts of the body. She was also suffering from head wounds inflicted by blows. Cameron was asked to call an ambulance. She did so from the phone box. The ambulance driver, one Rice, said the call was received at 12.18 am. Rice arrived at the scene at 12.23 am where he saw Bauer lying on the pavement of Main Street near the telephone box. Cameron was seeking to assist her. There were a large number of people gathered around them. He made an assessment of the condition of the injured woman, which led him to believe that she was in a critical state. He then put her in the ambulance and took her to the Stawell Hospital. Cameron accompanied them. When they arrived at the hospital, the applicant was already there.

Subsequent inquiries by the police revealed that there had been an altercation between Kim Bauer and the applicant in Bauer’s premises at 180 Main Street at some time between 11.50 pm on 1 April 1995 and 12.15 am on the following morning. Those times were fixed by Sergeant Mintern-Lane because he had seen Kim Bauer enter the Commercial Hotel, which was opposite the Main Street entrance to the premises at 180 Main Street, at 11.50 pm. Bauer had apparently come to the hotel to buy a packet of chips. Mintern-Lane had seen her leave the hotel and enter the premises at 180 Main Street immediately before he left the hotel to return to the police station.

Bauer’s premises at 180 Main Street were a subterranean flat underneath the building which was on the corner of Main Street and Patrick Street, Stawell. The flat had two entrances; one from Main Street via a staircase which led into the loungeroom of the flat; the other from Patrick Street via a staircase which led to the kitchen of the flat. It was apparent that the deceased had been assisted from the flat via the former entrance while the applicant had removed himself from the premises through the Patrick Street entrance. No one saw him leave, but the knife which he told Mintern-Lane he had “thrown on the footpath”, was later found there outside the Patrick Street entrance.

Although Bauer was still alive when she was taken to the Stawell Hospital early in the morning of 2 April, she died whilst being treated. The pathologist gave evidence that she had the following injuries:

– a small injury to the centre of the forehead consistent with it striking something “blunt”;

– a blackened left eye and injuries to the lower and upper lips consistent with the receipt of a punch or punches;

– superficial skin loss under the chin;

– penetrating injuries to the upper left chest (1.5 cm deep), right nipple (2 cm deep), right side of chest, front wall of stomach, right leg and lower left back, all consistent with knife wounds. These wounds had caused severe internal bleeding;

– bruises to the right forehead, left temporal region, left parietal region and left side of the back of the head, one of which had caused a sub-arachnoid haemorrhage.

The pathologist expressed the opinion that death had ensued as a result of the head injuries and stab wounds to chest, abdomen and back. In cross-examination he agreed that, if the deceased had suffered only the head injuries it was “less likely” that she would have died but that the stab wounds would have inevitably led to death without immediate treatment. The doctor who treated her at the Stawell Hospital expressed the opinion that the cause of death was the loss of blood from the stab wounds, not the sub-arachnoid haemorrhage.

The applicant was briefly examined whilst he was at the Stawell Hospital by Dr Robert Castle, the Director of Medical Services at the hospital. Castle described his examination of the applicant variously as “very brief”, “quick”, “hurried” and “very rapid”. He did not notice all his wounds, but formed the opinion that the applicant’s general condition was “quite satisfactory”. He asked the applicant how they occurred and the applicant replied “She did them”. He said that because one of the wounds “looked a little deeper than the others and . . . had probably penetrated the abdominal wall”, he referred the applicant to the Wimmera Base Hospital.

Whilst he was at the Stawell Hospital, the applicant was also spoken to by Constable Polglase of the Stawell police. The applicant and Polglase were acquainted. Polglase said that the applicant had said to him: “Polly, it’s not my fault, she knows that; she wanted me here.”

The ambulance officer, Rice, also spoke to the applicant at the Stawell Hospital whilst he was being examined by a Dr O’Brien. Although he had forgotten exactly what he had asked the applicant, Rice said that the applicant had told them that the deceased “had attacked him with a poker” and that he had punched and knocked her down the stairs. He also said that when O’Brien had asked the applicant what he knew of the injuries to the deceased, he had replied “I stabbed her”. O’Brien gave no evidence of this conversation. Following the examination to which I have referred, Rice transported the applicant to the Wimmera Base Hospital where he was treated by Dr Ian Campbell.

Campbell saw the applicant at about 2.20 am on 2 April 1995 at the Wimmera Hospital. He said the applicant was conscious and alert. The applicant told him that he had been in a “domestic fight” and that he had been stabbed by “the girl”. He examined the applicant and found that he had a number of stab wounds. There was a wound over the right chest above the bottom of the rib cage. There were two more on the right side of the rib cage, two below the umbilicus in the stomach region, two on the left flank, one on the inner aspect of the left thigh and two on the outer aspect of the left thigh. The doctor regarded the wounds to the thigh as “entry” and “exit” wounds. The wound in the chest had penetrated to the ribs with no damage to the underlying bone. Each of the wounds below the umbilicus had penetrated the peritoneal cavity; one of these had gone into the small bowel. The wound was not “life-threatening” but it would have been if it had gone further into the bowel. One of the thigh wounds was some 5 or 6 cm deep which meant it had penetrated to the depth of the thigh bone. He described the wounds to the stomach area and the thigh as requiring a “moderate degree of force”. Campbell said that he had admitted the applicant to the theatre and, under general anaesthetic, had explored and treated the wounds. He said that he noted that the inferior epigastric artery had been cut and was sutured. He had also noted that there were “shallow” cuts to the knuckles of the left hand — obviously made by a sharp object. He also found what he called “scratches” down the right forearm which did not need stitching.

Over objection by applicant’s trial counsel, the learned judge permitted both Castle and Campbell to express opinions to the jury that the wounds to the applicant had been “self-inflicted”. Because this was an issue which was central to the applicant’s defence, the admission of this opinion evidence, and the directions given in respect of it, will have to be revisited hereafter.

At about 1 pm on 3 April 1995, Sergeant Rovis of the Homicide Squad conducted a “video recorded” interview with the applicant at the Wimmera Base Hospital. At the time when this interview was conducted Kim Bauer had died. The record of the interview ultimately became the focal point of the applicant’s defence at his trial, because he gave no evidence of the events which had occurred between himself and the deceased at the premises in Main Street on the evening of 1 April 1995. In the course of the interview, the applicant traced at some length the relationship which had existed between himself and the deceased over a period of some two and a half years before the incident as a result of which the deceased had met her death. The relationship had commenced in Darwin where the applicant had lived and worked since 1985 and where the deceased had lived since the late 1980s, having moved there from Stawell. The applicant said that he had first met the deceased in or about 1989 when she was working as a receptionist for a transport company and he was working as a transport driver. The initial acquaintance was short lived, but it was resumed in or about the beginning of 1993 when they commenced a relationship which continued, subject to periodic interruptions, until the deceased met her death. It was not in dispute that the relationship was a volatile one characterised by periodic outbursts of verbal and physical disputation. In his interview the applicant had put a slant on the relationship which was favourable to himself. It was his contention that the deceased was constantly reproaching him for slovenly habits and his failure to take steps to improve himself. He described the deceased as a person who was egocentric and quick to take offence; and who was prepared to resort to physical violence against him if and when it suited her purposes. Thus, he claimed, she had assaulted him in Darwin with her fists, causing injury to his head; and on another occasion had taken to him with a shovel causing injury to his leg. It is fair to say, I think, that he had painted himself as a person who exercised restraint, whilst being unable to understand what she wanted of him. Paradoxically, he stated that there was a strong and magnetic bond of affection and mutual attraction which drew them together. He said that despite the fact that they had separated following a difference of opinion in late 1994, when the deceased had left him and returned to Stawell, it was not long before she was writing to him and making telephone calls entreating him to join her in Stawell. Contrary to what he described as his “better instincts” he had relented, given up his job, and travelled to Stawell to resume the relationship. Once there, he said, he was again taunted by the deceased who continued to be critical of him, his habits and his station in life. In the course of the interview he was asked about an incident which had occurred between them on 19 February, some five to six weeks before her death, following which she had sought an “intervention order” against him. He said that he had not started the incident but had been prepared to “shut his mouth” and “take the rap” for it. Although he had been angry with her, and had hit her, he was only “trying to wake her up to what she was doing”. Despite the intervention order they had continued to see each other and to cohabit from time to time.

With regard to the events which occurred on the night of 1 April 1995 the applicant told the police that he and the deceased had been out to dinner with friends. They had a “quiet” night and had drunk very little. He said that, whilst at the friends’ place, the deceased had acted “real cocky” and had “made herself the centre of attention”. They had left at about midnight and he had driven them, in her car, to Main Street. He went into the bedroom and “started making the bed”. She came in and commenced to “bad-mouth” him. He said that he walked out into the loungeroom, put his head in his hands and leaned against the wall by the fireplace. The next thing he knew she had hit him “around the back” with a poker. He turned around and grabbed her; he did not feel “any real pain” — it was “just the shock of her hitting me with it”. He had tried to “take the poker off her” and she “put up a fight”. In order to take the poker from her, he punched her in the face with his left fist. She fell onto a beanbag in the loungeroom and started to lash out at him with her feet. He walked away and she followed him, pushing him in the back. He then started to walk up the stairs towards the Main Street entrance and she again following him yelling “You’re a cunt.” He got to the door but she pulled him back. He “slid” down the stairs. He said he went into the kitchen “to get away from her” but she followed him in there yelling “You’re an arsehole”. She then grabbed a knife “out of one of those Wiltshire stay sharp things” and “came lunging” at him. He tried to “get it off her” and punched her in the head again. She struck him with the knife in the stomach area and the leg. He tried to push her off and “get the knife off her”. He could not say how many times she struck him because it all happened so quickly. He got cuts on his hands trying to get the knife from her. She was screaming at him and calling him a “low-life”. He could “feel the knife going in and out a few times”. Although he was facing her he did not see her pick up the knife and presumed she had taken it from its container on a shelf. He said he was “stunned” because he could not believe that the deceased was trying to kill him. Ultimately he said that he knocked the knife out of her hand by hitting her arm. The knife fell to the ground and he picked it up. He said that she was laughing at him and mocking him. She said “I’ve got you now, that’s what everybody wanted.” He then said to her: “Leave me alone; just get an ambulance.” She said: “No, fucking die.” The applicant then said that he had “just lunged at her with the knife and gave it to her”. He said that he “did not want to”, but that he had “had a gut full”. He further said that the deceased had continued to taunt him by smirking at him and saying “You’re going to die.” He had then said: “I’m sick and tired of this — if I’m going, you’re going.” He told the police he had “just let her have it”, when somebody walked in the door. He said he had struck her with the knife in the chest or the stomach but he could not say how many times. He said that the deceased was screaming and that someone had “kicked in” the kitchen door from the loungeroom. He had yelled “get her out of here” and a “couple of guys” had grabbed her and taken her out. He thought that there were three people who had come into the premises but he could only remember one “group” of people who had entered. He said that the deceased was hysterical when they took her through the lounge and up the stairs into Main Street. He had then gone out the other way into Patrick Street where he had dropped the knife into the gutter on his way to the police station. The entire “stabbing incident”, he said, had taken place in the kitchen; but that it was in the loungeroom where she had hit him with the poker and he had punched her twice to the head. He said that, as she had fallen on to the beanbag after he had punched her, she had struck her head on a glass vase which was on the mantelpiece.

Towards the end of the interview, the following exchange took place between Sergeant Rovis and the applicant:

Q — After you picked the knife up, you indicated she was looking at you, smirking and verbally abusing you — is that right? A — Yes.

Q — And you got angry? A — Yes.

Q — And you said to her if you were going to die so was she . . .? A — She said “you’re going to die” . . . and then said “That’s what I wanted” or something.

Q — Yes. What did you say? A — Well, “if I’m going so are you” because I had nothing to lose.

Q — And what was your intention when you grabbed the knife and lunged at her? A — Not to kill her.

Q — What was your intention? A — Just harm her.

Q — How did you want to harm her? A — Just to shock her into reality . . . I did not mean to kill her.

Q — Do you think that [stabbing her] 4 times is a reasonable way to shock her back into reality? A — Under those circumstances where I was . . . yes.

The applicant continued to say that he did not intend to kill the deceased but to “knock” some sense into her. He said that when he stabbed the deceased she was by the sink in the kitchen, but he again said that it had all happened so quickly that he could not be sure; and that they had been moving around an “island” table in the middle of the floor area.

Following the conclusion of the interview at about 4 pm on 3 April 1995, the applicant was told that he was going to be charged with the murder of the deceased.

The trial

The trial of the applicant took place in November and December 1997. It was in fact a re-trial, the applicant having initially been convicted by a Supreme Court jury at Horsham in May 1996. On appeal, this court quashed the conviction and directed a re-trial: R v Anderson (1997) 94 A Crim R 335. Upon the re-trial he was again convicted on 11 December 1997; and on 12 December the trial judge sentenced him to be imprisoned for a term of 17 years and to serve a minimum term of 14 years before being eligible for parole. This sentence was less favourable to the applicant than the one which he had received from the judge who had presided over the initial trial. Although the head term imposed was the same, the minimum term fixed by the judge at the first trial was two years less (namely 12 years) than the minimum term fixed at the re-trial.

The applicant has appealed against both conviction and the sentence imposed. Before turning to the grounds of appeal it is desirable to refer briefly to some of the evidence given at the trial and the cases made by both the prosecution and defence.

The evidence

The video-recorded interview between the police and the applicant was led in evidence by the Crown and, in the absence of evidence from the applicant, became the centrepiece of his defence. As became apparent from that interview the altercation between the applicant and the deceased had attracted the attention of bystanders who had been at the Commercial Hotel and who had entered the premises of the deceased. The bystanders had entered in two groups of three via the Main Street entrance which led into the loungeroom. The first group comprising Troy Johnson, Terri-Ann Grinham and Anthony Coles, had been attracted by screams coming from the premises. They had forced their way through the Main Street entrance and proceeded down the stairs into the loungeroom. In the adjoining kitchen they had seen the applicant, with a knife in his left hand, moving around the bench in the centre of the kitchen following the deceased. Johnson said that when he entered the kitchen, his two friends were behind him. When he had seen the applicant with the knife he had turned and run out of the flat. He said that when he had looked into the kitchen the applicant and the deceased stopped moving. Although Johnson said that he could not say whether the screaming was that of a male or female, the other two witnesses said it was a female voice screaming for help. Miss Grinham had said that she had looked into the kitchen and seen the deceased with “blood all over her”. The witnesses said that, in the glimpse which they had of the events, they saw nothing in the gait of the applicant which suggested that he was limping, nor did they see blood on his clothing. One said that he had blood on his face.

Almost immediately after the first “group of three” had removed themselves from the flat, the second group (Steven Lyons, Neill Pascall and Darren Supple) had entered. They too went through the door from the loungeroom into the kitchen. Supple said that he was the first to enter and, when he did, both the applicant and the deceased “froze”. The applicant had the knife in his hand and the deceased, who was covered with blood, was grabbed either by him or Pascall. She was able to walk with them “unassisted”. Pascall said that the applicant was wearing “dark” clothing (in fact a black T-shirt and jeans) and had a “large amount of blood” on his right and left hands and forearms. He saw no blood on his clothing and, according to him, was screaming “get her out of here”. He said that, from the way in which the applicant was moving, he did not appear to be injured. Having removed the deceased from the kitchen, he closed the kitchen door. They then took the deceased up the stairs into Main Street where she collapsed.

Maxwell Jones, a forensic scientist from the Victorian Forensic Science Centre, went to the flat during the afternoon of 2 April. He gave evidence of his observation of blood stains and his analysis of them. He observed blood from the applicant on the footpath in Patrick Street and blood from the deceased on the footpath in Main Street. In the kitchen he found “spattered blood” on the cups and glasses on a shelf above the sink and on the cupboard below the sink. This, he said, was blood from both the applicant and the deceased. On the architrave of the door leading to the loungeroom he found a blood smear from the applicant. He also found some droplets of the applicant’s blood on the floor near the exit to Patrick Street. On the island bench and the stools around it, he found droplets of blood from both the applicant and the deceased. He also examined the handle of the knife. There was blood there which comprised a mixture of blood of both the applicant and the deceased. In the loungeroom he found blood stains from both the applicant and the deceased. Most of it was in the corner between the coffee table and the fireplace. Blood from each of them was on the floor; there was a spatter of the deceased’s blood on the beanbag and an “arc of cast-off blood” coming from the applicant leading up the wall and onto the ceiling. He found a mixture of blood from each of them near the handle of the poker, a mixture of the blood of each near the tip of the poker and blood from the deceased in the mid-shaft of the poker. He found smeared blood stains from the applicant at the bottom of the staircase leading to Main Street and on the wall some distance up those stairs. There was blood from the deceased on the floor and wall near the top of the stairs. There was hair from the deceased on the glass vase or “terrarium” on the floor of the lounge.

The Crown led a body of evidence which was descriptive of the relationship between the applicant and the deceased both in Darwin and at Stawell. This evidence painted a somewhat different picture of the relationship from the one given by the applicant to the police in his record of interview. Although the evidence had been led by the Crown without objection at the first trial, it was objected to by applicant’s trial counsel at the re-trial on the basis that it was evidence of prior criminal and discreditable conduct which ought to have been excluded because of its prejudice. The trial judge admitted the evidence on the basis that it was relevant to the jury’s consideration of the issues to be raised in the case, particularly those related to the state of mind of the applicant, and that, subject to proper directions, the cogency of the evidence required its admission. His Honour also took the view that the admissibility of the evidence was warranted by the fact that the applicant had, in his interview with the police, put the nature of the relationship in issue and that trial counsel for the applicant had indicated to him that he was not prepared to agree to an “editing” of the record to remove those answers.

It is, I think, unnecessary to refer at length to the nature of the “relationship evidence” which was led by the Crown. It was led through a number of witnesses who had known the applicant and the deceased in Darwin and Stawell. There was evidence from people who knew them in Darwin who said that they had seen the deceased with “black eyes” and bruises on face, arms and legs. One witness said that he had seen the applicant, in Darwin, kneeling on the deceased in the carport of the house at which they were living and punching her in the face. Another said that, on occasions, the applicant had become short-tempered with the deceased at gatherings and had on one occasion expressed his anger by “kicking a chair”. Yet another said that the applicant had told him that he “did not know what the deceased wanted from him” and that he had given her a “back-hander” at times. A witness from Stawell told the court that he had seen the applicant sitting on the stomach of the deceased on the floor of the flat which he shared with her. He, too, had seen her with bruises on her face and had called the police. A senior constable of police said that he had received this call to the deceased’s premises early in the morning of 19 February 1995 and had taken the applicant to the police station where the applicant told him that he and the deceased had had an argument and that he had become aggravated because he was “trying to express myself in certain ways and the only way I could get through to her was the way it ended up”. He said the way it “ended up” was by him throwing her against the wall, pushing her to the ground, pounding her head against the floor, shaking her and punching her. He said that he “did not want to do it” but “wanted her to listen to him”. The evidence indicated that, as a result of the assault on this day, the deceased had received facial injuries including two black eyes, bruising around forehead and cheeks and tenderness to the chest. There was also evidence that, as the consequence of this incident, an intervention order had been issued against the applicant. This evidence placed in context the description given of it by the applicant to the police in his record of interview.

The evidence was not all one way. In the presentation of his defence, the applicant called evidence from one Johannes Hermans who had known the applicant in Darwin. He also knew the deceased. He said that the applicant had shared premises with him for a substantial portion of 1993. He said that he had observed the applicant and the deceased together; that the deceased used to “niggle” the applicant about his posture, his smoking and his weight. He said that, at some stage during 1993, the applicant had left his premises and “moved in” with the deceased. Towards the end of the year, the applicant had, so the witness said, returned to New Zealand to see his family. Whilst he was away, he said that the deceased had “kept on ringing my place all hours of the night and day”, asking “Is the fucking bastard there?” He said that, on one occasion, the deceased had come around to his premises at 3 am and had forcefully tried to enter by pulling at the screen door. Whilst doing this she was yelling “Where’s the fucking bastard; I know he’s in there.” She then overturned the outdoor furniture. On another occasion, the witness said, he had gone, with the applicant, to the deceased’s premises to “pick up his (the applicant’s) gear”. This was after the applicant had returned from New Zealand. The applicant had called the police to assist them. Whilst there, the deceased had screamed: “Get your fucking gear out of here; I don’t want to see you; get lost you fucking bastard.” The witness said that on one occasion the applicant had shown him cuts and bruising to the back of one of his legs and, on another occasion, he had seen the applicant with a black eye. He said that, of the two of them, the deceased did “most of the talking”. He also said that he had seen the deceased punch the applicant in his kitchen.

Without objection from the Crown, the applicant’s trial counsel read into evidence statements from medical witnesses who had treated the deceased and the applicant in Darwin. Dr Chin stated that he had treated the applicant on 6 September 1994. The applicant had a laceration over his left eyebrow and an injury consistent with a “bite mark” on his right forearm. He also had a blackened left eye, swollen left cheek, swollen nose and bruised right forehead. All the injuries were consistent with assault. Dr Phillip Worley stated that he had treated the deceased at the Darwin Hospital in December 1991 for an “apparent suicide attempt” by slashing of wrists. In respect of this incident, it was accepted that it had occurred at a time which preceded the relationship between the deceased and the applicant.

The cases made by Crown and defence

The real issue in this case, as it seems to me, was whether the Crown was able to negative provocation in the event that the jury considered it a reasonable possibility that the stabbing of the deceased had occurred in the manner recounted by the applicant in his record of interview; namely that he had stabbed the deceased in response to her unjustified stabbing of him. Although the applicant’s record of interview had put in issue the existence of the relevant intention to support a charge of murder and the applicant, through counsel, had raised the issue of self-defence, it was unlikely that either of those issues could succeed having regard to the concluding statements made by the applicant in his record of interview in which he said that, after he had gained control of the knife and the deceased had laughed at him and said “You’re going to die”, he had “got angry” and said “I’m sick and tired of this — if I’m going, you’re going” and had “lunged at her” and “let her have it”.

In response to the applicant’s case that he had been provoked, the prosecution contended before the jury, as its “principal scenario”, that the deceased had never been in possession of the knife and that, after she had been assisted from the flat, the applicant had “self-inflicted” his wounds in order to raise a defence which was not properly open to him. Thus, in his final address, the prosecutor had told the jury:

The Crown say that really there are three possible scenarios here when you assess this. The first is . . . what the Crown has put from the beginning . . . that she never had the knife and that he has inflicted these wounds himself to provide a defence at a later time . . . that is what the Crown have set out to prove to you here, that indeed was the case.

Although the Crown suggested that there may be “other scenarios” — namely that she had the knife to defend herself against a life-threatening attack by him or that she had the knife in the circumstances described by the applicant in his record of interview, it was the Crown’s principal case, and the one which it asked the jury to accept, that the deceased never had the knife. Indeed it was the Crown case that the applicant had a motive to stab himself because he “was caught red handed” with the knife in his hand and “knew the problems he was in”. The prosecutor asked rhetorically:

What does he do, you might ask yourself, in a desperate situation like that? He must realize he’s murdered this girl or caused her very serious injury. He knows that only six weeks previously he’s been dealt with for assaulting this woman seriously. What possible view is anyone going to take in this fact situation; in that moment when they’ve caught him chasing her with the knife in the light of that background? What option does he have? The only option, the Crown say, is to turn the knife on himself.

Thus, the issue of whether the knife wounds to the applicant were inflicted by the deceased or were inflicted by himself after he had mortally wounded the deceased became a, if not the, crucial issue of fact in the case. If the jury accepted the Crown contention, then not only were the jury bound to reject the defences which he raised but they were entitled to use the wounds which he undoubtedly suffered as an admission of his guilt to the crime of murder.

The grounds of appeal

Against the background of the evidence which I have recited and the cases made by the Crown and the defence, it is now appropriate to turn to the grounds of appeal which have been argued in this court. Those grounds alleged wrongful admission of evidence and misdirection by the trial judge in respect of the evidence. Four grounds were argued; in substance they were as follows:

1. That the trial judge was in error in permitting the Crown to lead evidence of the “relationship” between the applicant and the deceased both in Darwin and Stawell.

1A. That the trial judge misdirected the jury as to the use which they could make of the “relationship evidence”.

2. That the trial judge was in error in admitting into evidence the opinion evidence of Drs Castle and Campbell that the wounds to the deceased were “self-inflicted”.

3. (By leave of the court) That the learned judge, having admitted the evidence of Drs Castle and Campbell, as referred to in ground 2, ought to have directed the jury to disregard it and had otherwise misdirected the jury in respect of it.

Mr Salek, counsel for the applicant, argued grounds 1 and 1A together and the remaining two grounds together. For the purposes of this judgment, it is appropriate to deal with the grounds in the same way.

The “relationship evidence”

Mr Salek submitted that his Honour should have excluded the relationship evidence on the grounds that it was evidence of uncharged criminal conduct amounting to “violent propensity” and did not satisfy the “no other reasonable explanation” test propounded by the High Court in Pfennig v R (1995) 182 CLR 461. In this regard it should be noted that s 398A of the Crimes Act 1958 which has recently introduced into the law of this State its own test of admissibility for “propensity evidence” designed to replace the “Pfennig test”, had no application to the proceedings in this case: cf R v Best [1998] 4 VR 603 at 611-12. Thus, Mr Salek submitted that, in determining whether the impugned evidence should have been admitted, the judge was obliged to have posed for himself the test, enunciated by the majority of the court in Pfennig v R (1995) 182 CLR 461Pfennig at 481, namely does the evidence possess:

. . . a particular cogency or probative value such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged.

In support of this submission Mr Salek relied upon R v Wackerow [1998] 1 Qd R 197, particularly per Pincus JA at 204.

In a careful ruling, the trial judge, after argument, had excluded some of the evidence of the relationship between the applicant and the deceased which the Crown sought to tender on the basis that it related, in general terms, to the disposition or temperament of the deceased, or that it was “too remote”, or that it was evidence of “inadmissible hearsay”. He admitted, however, the evidence to which I have previously referred on the authority of Wilson v R (1970) 123 CLR 334, ruling that it was or would become relevant to facts in issue in the trial. His Honour, however, ruled that the evidence could not be used to prove that the applicant had a propensity to commit the type of crime with which he was charged. He rejected the argument, advanced by the applicant’s trial counsel, that, in determining whether the evidence should be admitted it was appropriate to apply the test of admissibility formulated in Pfennig v R (1995) 182 CLR 461Pfennig at 481.

In my view his Honour was correct to have admitted the evidence which he did on the basis which he did. In cases of this kind, where the parties have been living together for a substantial period of time preceding the events in question, courts have traditionally admitted evidence of the pre-existing relationship between them provided that it has a bearing on the facts in issue. This is particularly so where the evidence is relevant to the state of mind of the accused at the time when the acts alleged occurred. Thus such evidence has been admitted to prove motive or to establish the intent of the accused, or to negative a defence of accident, self-defence or provocation. Such evidence can be admitted either for or against the interests of the accused. It would be contrary to common sense, for example, to exclude evidence which pointed to an entirely harmonious and compatible relationship between the accused person and his wife or partner if such evidence was relevant to the defence of the accused person: Wilson v R (1970) 123 CLR 334Wilson v R at 337 per Barwick CJ. Likewise it would be contrary to reason and common sense to exclude evidence of previous violent acts by the deceased towards the accused person, or others, if such conduct had a relevance to the issues at trial: see Re Knowles [1984] VR 751.

Admission of evidence of relationship of the type which was admitted in this case, and for the purpose for which it was admitted, has a substantial pedigree. In Wilson v R (1970) 123 CLR 334Wilson v R at 339, Barwick CJ explained its admissibility in the following way:

It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance, it is inadmissible . . . It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn . . . Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible.

Menzies J, in whose reasons for judgment McTiernan and Walsh JJ agreed, said at 344:

It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence — which rests fundamentally upon the requirement of relevancy, ie having a bearing upon the matter in issue — to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.

The statements made in Wilson v R (1970) 123 CLR 334Wilson have been referred to and applied in many cases in this country both pre- and post-Pfennig Pfennig v R (1995) 182 CLR 461 where evidence of relations of the kind admitted in this case was in question and where it had been tendered to prove the state of mind of the accused, or, in some cases, the victim, at the relevant time. (See, for example, R v Hissey (1973) 6 SASR 280; Harriman v R (1989) 167 CLR 590 at 630 per McHugh J; R v Frawley (1993) 69 A Crim R 208 at 220 per Gleeson CJ; R v Vollmer [1996] 1 VR 95 at 132 per Southwell and McDonald JJ; R v Mala (unreported, 1997) R v Mala (unreported, Court of Appeal, 27 November 1997) per Ormiston JA at 10-12; R v Ritter (unreported, 1995)R v Ritter (unreported, NSW Court of Criminal Appeal, 31 August 1995) per Gleeson CJ at 7-9; R v Lock (unreported, 1997)R v Lock (unreported, NSW Supreme Court, 25 March 1997) per Hunt CJ at CL at 7-8.)

Evidence of the relationship between the parties has been admitted, not simply because it describes the relationship of the parties but because particular acts or statements occurring within that relationship are relevant to the issues arising in the case. I did not understand Mr Salek to contend that the evidence which the judge admitted in this case was not relevant to the issues in the case. He could scarcely have done so because it was evidence which had a bearing, not only the existence of malice aforethought, but also upon the issues of self-defence and provocation. Mr Salek’s contention was that the proper test, which the judge should have applied in determining the admissibility of the evidence, was that described by the majority of the court in Pfennig v R (1995) 182 CLR 461Pfennig at 481 which, so he contended, had modified the test of admissibility propounded in Wilson v R (1970) 123 CLR 334Wilson and the cases which had followed it.

I am unable to accept these submissions. In my opinion, they read too much into the decision in Pfennig v R (1995) 182 CLR 461Pfennig. As I endeavoured to point out in R v Tektonopoulos [1999] 2 VR 412 at [24]-[25], in determining whether evidence of prior criminal or discreditable conduct is admissible, much depends upon the purpose for which the evidence is being tendered. In Pfennig v R (1995) 182 CLR 461Pfennig the evidence of other criminal conduct was being tendered, as “similar fact” evidence, to prove the fact that the crime charged had been committed and the fact that the accused was the one who had committed it. In cases like the present, the evidence is tendered as bearing on the state of mind of the accused person at the time when the undisputed act occurred. In the latter circumstance the evidence is tendered, not as propensity evidence to prove that the accused was the sort of person likely to have committed the crime charged; whereas in the former circumstance the purpose for which the evidence is being led is to identify the accused as the person who committed the crime charged. Where that is the purpose of the tender, the courts have always acted with caution and required a compelling degree of cogency, in the nature of “striking similarity” or “underlying unity”, before admitting the evidence. Where the evidence is tendered, not as evidence of propensity to commit the crime charged but as bearing on the accused’s state of mind at the relevant time, the judge must be satisfied that the evidence is relevant to a fact in issue, and must warn the jury that they cannot use the evidence for the impermissible purpose of demonstrating a propensity on the part of the accused to commit that crime. In the case of R v Ritter (unreported, 1995)Ritter, a submission similar to the one made by the applicant’s counsel to this court, had been made to the NSW Court of Criminal Appeal. In the course of giving the leading judgment of the court, Gleeson CJ said at  10:

Newman J admitted the evidence [ie "relationship evidence"] in reliance upon the authority of Wilson v R (1970) 123 CLR 334Wilson v The Queen (1970) 123 CLR 334 . . . In addition to the question of the relevance of the evidence, his Honour also considered an argument to the effect that the evidence should be excluded because its prejudicial effect outweighed its probative value, and rejected the argument.

On this appeal the appellant’s submission that the evidence was inadmissible was based upon the recent decision of Pfennig v R (1995) 127 ALR 99Pfennig v The Queen (1995) 127 ALR 99. In particular, it was argued that the decision in Pfennig is authority for the proposition that evidence of the kind in question should have been rejected unless it were proper to conclude that its probative force was such that it bore no reasonable explanation other than the appellant’s guilt of the crime charged. This, it was said, is the test to be applied whenever the Crown tenders evidence, for any purpose, which is evidence tending to show that the accused is guilty of a criminal offence other than that charged.

I am not persuaded that Pfennig is authority for that proposition.

His Honour then went on to give examples where evidence disclosing that the accused was guilty of other criminal offences would clearly be relevant and admissible in proof of crimes charged. His Honour then continued at 11-12:

In the two examples mentioned above, the evidence in question was not propensity or similar fact evidence . . .

Similarly, in the present case the evidence in question was not led on the basis that it was propensity or similar fact evidence. It was led, in conformity with the decision of the High Court in Wilson, on the basis that it tended to establish matters relevant to the relationship between the appellant and the deceased. There is nothing in Pfennig which suggests the High Court was setting out to overrule or qualify Wilson. Indeed, it may be remarked that, if Pfennig is authority for the proposition relied upon by senior counsel for the appellant in this appeal, then Wilson would seem to be wrongly decided.

These remarks, if I might say so with respect, accurately point up the proposition that it is the purpose for which, or the basis upon which, the evidence is tendered which will play a significant part in the court’s determination as to whether it should be admitted, and the degree of cogency which is required to support its admission. That has always, so far as I am aware, been the effect of the common law principles.

In the case of R v Peake (1996) 67 SASR 297, the appellant had been convicted of an offence of unlawfully wounding a 16 year old girl with whom he had been living in a “de facto” relationship and of attempting to murder the girl’s parents. The offences had occurred during the course of a single incident and the various wounds had been inflicted with a samurai sword. The Crown had led evidence of events preceding the charged events which were designed to show that there had been long-standing enmity between the appellant and the girl’s parents and a history of violence and assaults perpetrated by the appellant upon the girl and her parents. The trial judge had admitted the evidence for the purpose of giving context to the offences charged, to demonstrate motive and to rebut the appellant’s defence of accidental infliction of wounds. The Court of Criminal Appeal rejected an argument that the evidence should have been excluded unless the trial judge was satisfied that it had the degree of cogency explained by the majority of the High Court in Pfennig v R (1995) 182 CLR 461Pfennig. In the course of his judgment Olsson J ( at 307) accepted the proposition that the decision in Pfennig:

. . . stands as the current definitive exposition of principle concerning the approach proper to be adopted to the broad sweep of propensity evidence — particularly similar fact evidence of the nature there under consideration. The critical point there in issue was that the probative value of evidence of that type lies in the improbability of witnesses giving accounts of happenings having the relevant degree of similarity unless the happening of the alleged events occurred. [Emphasis added.]

His Honour then contrasted the admission of evidence for that purpose with the admission of evidence led to establish a relevant relationship. He said at 307:

Whilst it is true that, in the introductory paragraph at the commencement of the joint judgment [ie in Pfennig], the broad statement was made that so-called relationship evidence is a category of propensity evidence, I do not take the High Court to have overruled, or significantly qualified, the reasoning stemming from the earlier authority of Wilson v The Queen . . .

His Honour referred to the statements of Barwick CJ in Wilson v R (1970) 123 CLR 334Wilson v R (to which I have earlier in these reasons referred), to a passage in the judgment of the SA Full Court in R v Hissey (1973) 6 SASR 280 R v Hissey, and (inter alia) to the statement of Toohey J in S v R (1989) 168 CLR 266 at 279 that:

. . . evidence which bears on the relationship between an accused and a complainant over a period of time may not in truth be similar fact evidence when it is admitted, not to show propensity but rather the relationship between the parties . . .

Olsson J concluded by saying at 308:

All of the foregoing authorities combine to suggest that Mr Peek seeks to read far more into a general introductory statement of the majority in Pfennig v The Queen than was ever intended. I see nothing in their judgment to indicate an intention to abrogate the reasoning underpinning those authorities.

The Court of Criminal Appeal’s decision in R v Peake (1996) 67 SASR 297Peake went to the High Court on an application for special leave: Peake v R A/47 1996, 4 September 1997. Again the question was raised “whether evidence of prior criminal conduct, which is led to establish relationship, is required to satisfy the high test of cogency recognized by the (High Court) in Pfennig v R (1995) 182 CLR 461Pfennig“. The court (Brennan CJ, Toohey and Kirby JJ) rejected the application on the basis that “the prospects of appeal, whether on the question of admissibility or on the question of inadequate directions, are not sufficient to warrant the grant of special leave”. In the context of this appeal, the transcript of argument on the application is noteworthy only because it records the following statement of Brennan CJ at 4-5:

Now one can readily understand how one ought not to admit evidence of propensity to engage in a certain kind of conduct when the issue for determination by the jury is whether the accused engaged in that kind of conduct. That is where you have problems of the actus reus. Was this the person who committed the rape? Did the schoolmaster violate the boy, et cetera? But that is not the problem here, is it? It is not a question of whether he did or did not wield the sword; it is a question of mens rea. So there was no real risk of the jury misusing the evidence of the acts of violence in order to determine whether the sword was wielded; the only question is whether the evidence was admissible to assist the jury in coming to a conclusion as to the mental element.

For the foregoing reasons, I am not persuaded by the applicant’s argument that the judge was in error in admitting the so-called relationship evidence on the basis which he did. His Honour did not admit it as evidence probative of the fact that the applicant had stabbed the deceased. He admitted it for the purpose of enabling the jury to understand the relationship which had existed between the parties and thus to enable them to better evaluate the respective intentions with which the parties had acted on the night in question. There was no risk that the jury would have used the evidence as “propensity evidence” because they were strongly warned that they could not use it for such a purpose. That is sufficient to dispose of ground 1 of the appeal. However there was another compelling reason why the evidence was admissible. As I have said the applicant himself, in his record of interview, had spoken at length about his relationship with the deceased and had described it in terms favourable to himself and unfavourable to the deceased. It was made clear to the judge by counsel for the applicant, in the course of taking objection to the admissibility of the evidence, that he (ie counsel) desired the record of interview to go into evidence without editing. If that had occurred the jury would have had before them, in the absence of the evidence objected to, an entirely one-sided — and perhaps erroneous view — of the relationship between the applicant and the deceased. In the long run it was a matter for the jury as to what they made of the evidence of relationship but it was, in my view, quite proper for the judge to ensure that the jury’s consideration of the issues be made upon all the relevant evidence describing the relationship and not simply upon the applicant’s description of it.

Nor, in my view, can it be said that his Honour’s directions to the jury as to the manner in which they could use the “relationship evidence” amounted to misdirections or, at least, misdirections which caused an injustice to the applicant. His Honour said:

This evidence, which we call relationship evidence, has been led to enable you to understand the relationship between the parties. It may assist you to understand what was in their minds on 2 April, because they, better than anybody, knew the events between them that had gone before. In other words, when you approach the evidence of the events of 2 April, you must not do so on some unreal basis as if we are hearing of two strangers meeting for the first time; you don’t have to decide this case in a vacuum, and I am sure that will not surprise you or cause you any difficulty. It is, however, necessary that I bring to your attention a principle of law that is very fundamental in our system. It is this: a person may be convicted of an offence, any offence, only on the evidence which bears on that offence. The prosecution, therefore, is not entitled to prove a person’s guilt of one offence by leading evidence of other crimes that person has committed.

His Honour then gave an example which was calculated to tell the jury that they could not convict a man simply on the basis of propensities. In that context he reminded the jury of the evidence that the applicant had assaulted the deceased in Stawell some six weeks before the crime alleged. He then continued:

You are not permitted to use evidence that [the applicant] assaulted [the deceased] on that evening to conclude that he is a woman beater and therefore likely to have attacked her on 2 April in the same way. You may however use the evidence of the events of the 19 February incident to understand how each of them might have behaved in the situation in which they found themselves on 2 April . . . You have to bear in mind that you cannot use the evidence of any assaults which you find to have been committed by [the applicant] upon [the deceased] either in Stawell or Darwin (assuming you find those assaults occurred). You cannot use that evidence to conclude that, as a woman beater, he is guilty of the charge before this court. You must focus, therefore, your attention on the events of the evening of 2 April, as you find them, and you may then use the relationship evidence to assist you to understand how these two people behaved on this occasion.

His Honour then gave the jury a summary of the evidence relating to the prior relationship of the parties and, having done so, concluded by saying:

. . . I remind you again that you may use these [events] in order to understand the relationship, background, that . . . the parties would have known on 2 April, but you are not to use it for an improper purpose; and the improper purpose would be to conclude that because he beat her, as he describes, if you so find on 19 February, therefore he is a woman beater and therefore likely to repeat this behaviour.

It was contended that these directions were inadequate because they gave little guidance to the jury as to how they could use the evidence, as distinct from how they could not use it. Whilst I agree that the directions could have been more explicit as to the manner in which the evidence might have been used by the jury, it seems to me that the more important aspect was to tell the jury that they were not to use it for the purpose of concluding that the applicant was the kind of person who was likely to have committed the crime charged. His Honour warned the jury on more than one occasion that they could not use the evidence for that purpose but only for the purposes of putting the events of 2 April in a proper and realistic context and for the purposes of understanding “what was in the mind” of the parties in the course of those events. Although, as it seems to me, this latter direction was not as specific as it could have been, I am of the view that the entire direction — in the terms given — was quite sufficient and not disadvantageous to the interests of the applicant. That, no doubt, was the reason why no exception was taken to the content of the directions by counsel for the applicant on the trial.

In those circumstances I am not satisfied that there was any material misdirection by the judge in respect of these matters and, accordingly, I would reject ground 1A.

The expert opinion evidence

Counsel for the applicant submitted that the trial judge had erroneously admitted into evidence the opinions expressed by Drs Campbell and Castle that the wounds which they had observed on the applicant had been “self inflicted”; and had further erred, in the light of the evidence which they gave, in failing to direct the jury that they should disregard such opinions.

As I have previously stated, the evidence was led in support of the “principal scenario” put by the Crown that the deceased had not been in possession of the knife and that, after she had been removed from the flat, the applicant had used the knife to inflict the injuries upon himself in order to conceal the true nature of the crime which he had committed and to provide for himself a basis for exoneration. It is, at once, apparent that acceptance of the Crown’s contention carried with it significant ramifications for the applicant. Not only would it have the effect of providing a complete answer to the applicant’s claims of self-defence and provocation, but would also lead to the inevitable conclusion that the applicant’s conduct in inflicting his own injuries amounted to an admission that he had committed the crime charged and that his subsequent statements to police, doctors and others that the deceased had inflicted his injuries were falsehoods told so as to conceal his guilt. If, on the other hand, it was accepted that it was reasonably possible that the applicant had suffered his injuries in the circumstances which he had related in his record of interview, there was at least a basis upon which the jury could find that the stabbing of the deceased by the applicant was not unprovoked. That much appears to have been conceded by the prosecutor in his final address. The applicant’s record of interview was tendered in evidence by the Crown and thus formed part of the evidential material which, along with other evidence, fell to be considered by the jury in considering the applicant’s guilt of the crime charged: R v Su [1997] 1 VR 1 at 64-5; R v Lovett [1972] VR 413 at 418. It was, of course, a matter for the jury to determine what weight they would attribute to the applicant’s explanation of the circumstances in which the stabbing had occurred. Although the Crown was entitled to impugn that explanation by reference to evidence properly before the jury, the applicant was entitled to expect that the jury’s consideration of the evidential value of his explanation would not be impeded or defeated by the introduction of inadmissible expert evidence. That, no doubt, was the reason why so much time was devoted during the trial to the admissibility of the opinion evidence of Campbell and Castle.

In the absence of the expert opinion evidence, the evidence upon which the Crown relied to support its contention that the applicant had inflicted his own injuries appears to me to have been somewhat tenuous. If the evidence of “times” given by the relevant witnesses were to be accepted, it would appear that the applicant had arrived at the police station in his injured state at or about the same time as the deceased was being assisted into Main Street. In that event the opportunity for him to have inflicted wounds to himself would have been minimal. In addition to the opinion evidence, the Crown sought to support its contention of “self-infliction” by reference to the “relationship evidence”; the evidence of the distribution of the blood of the applicant and the deceased as later found in the flat; the fact that the applicant was the only person seen with the knife; the fact that none of the persons who came into the flat had seen any sign of injury to the applicant, and the fact that none of his injuries was “serious”. Although the Crown was, no doubt, entitled to use this evidence as supportive of its contention that the applicant had, in some manner, inflicted his own injuries, none of it, considered individually or collectively, seems to me to be conclusive of the issue. Whatever view was taken of the “relationship evidence”, it did not suggest that the applicant had ever used a weapon against the deceased. Indeed, as the Crown conceded, the deceased herself was “no angel”. Furthermore, as it seems to me, the evidence of the distribution of blood found in the kitchen and upon the knife handle, and the fact that the “rescuers” had seen only the applicant with the knife were quite consistent with the accused’s account of the events given to the police. The fact that the “rescuers” saw no sign of injury to the applicant was equivocal having regard to the limited opportunity which they had to make their observations and the fact that the colour of the clothing which he was wearing was apt to conceal whatever injuries he had. Indeed the witness Cameron, who had seen him at the hospital, said that she observed no injuries to him even though it was not in dispute that he had the injuries at the time.

Over the objection of the applicant’s counsel, his Honour permitted the Crown to lead opinion evidence from Mr Campbell, Dr Castle and Dr Wells. Campbell was the surgeon who treated the applicant’s wounds at the Wimmera Base Hospital and Castle was the doctor who examined the applicant at Stawell and had referred him to the Wimmera Base. Dr Wells was the head of clinical forensic medicine at the Victorian Institute of Forensic Science and the senior lecturer in forensic medicine at Monash University. His specialty was, he said, that of “looking at injuries” and “interpreting them”.

His Honour admitted the evidence of all three witnesses. He said that he was satisfied that there was in existence an organised body of knowledge “concerned with whether knife wounds in a given case were self-inflicted or inflicted by a third party”. He held that each of the experts was qualified by experience and practice to express an opinion within the field of knowledge which he found to exist. He rejected counsel’s submission that neither Campbell nor Castle was expert in “the field”. His Honour referred to Campbell’s experience in treating accidental self-inflicted injuries which regularly came to his attention from the local abattoir. He said that:

. . . in order to determine the sufficiency of the experience and the training, I must have regard to the nature of the opinion in question and the reasons offered by the witness for it. In the case of Mr Campbell, he bases his conclusion upon physical features of the wounds he observed. An opinion expressed by a medical practitioner with his background is therefore receivable.

His Honour said that the court was not “concerned to evaluate the opinion” for itself and that:

. . . if Mr Campbell’s opinion is insubstantial and not worthy of credit, I will leave this to counsel to demonstrate.

In respect of Dr Castle, the judge again rejected counsel’s submission that the doctor was not qualified by training or experience to express an opinion within the field of knowledge which he had found to exist. He further rejected the submission that, on the material available, Castle had not demonstrated a foundation to express the opinion that the applicant’s wounds were self-inflicted. His Honour said his concern was “whether logically and factually [Castle's] opinion is so unsound that I should not permit the jury to evaluate it. I am of the opinion that his opinion does not fall into that category . . .”

Campbell gave evidence that he had concluded shortly after treating the applicant, and had noted, that the wounds were self-inflicted. His police statement, partly on the faith of which his Honour permitted him to express an opinion said:

All the wounds are consistent with having been caused by downward blows made with a sharp, narrow knife. They’re all consistent with having been self inflicted.

In his evidence, he described the wounds which the applicant had suffered and which I have earlier related. He said that the only two wounds which were sufficiently deep to obtain a measure of angulation were the two to the abdomen to the left of the umbilicus. He said that “because of the angle . . . I believe that [sic] was caused by a downward blow with a knife”. On that basis he said: “I believe they were self-inflicted.” He repeated, in cross-examination, that his “belief” was founded on the “downward angulation” of the wounds. He said “a self-inflicted wound to the abdomen is going to be downward pointed” whereas a self-inflicted wound to the leg “depends what position the leg is in”. He ultimately conceded, however, that a wound inflicted to the abdomen by an assailant might have a “downward angulation” depending upon how the assailant was holding the knife or whether the victim was upright or bending forward.

As I have previously indicated, Castle’s evidence of the examination which he had made of the applicant’s wounds at the Stawell Hospital was variously described as “very quick”, “very brief” and “hurried”. He said that the wounds “appeared to be superficial” but, “because one looked a little deeper than the others” and “may have punctured the bowel” he had referred him to the Wimmera Base Hospital. He agreed that he had not examined all the wounds, nor had he formed an initial view as to their cause. He later conceded that he had spoken to Campbell and was asked for his opinion by the police about a month after his examination. In evidence he said:

Q — Did you form a view in relation to the injuries you observed on the abdomen of that man as to the cause of those wounds? A — Well, I didn’t at the time because I was concerned to make sure about his welfare and the welfare of the deceased, who was critically injured. I was asked my opinion . . . about a month later.

Q — What was your opinion? A — Well, taking all factors into consideration — there are two things –

Q — Tell us what your opinion was first please? A — I would think, taking all factors into consideration and seeing the size of the assailant . . .

Q — Without going into the size of the assailant? A — Alright. Well I was of the opinion that at least some of them would have been self-inflicted.

In cross-examination, Dr Castle said that he “could not see how she would inflict all the wounds” without him doing something to stop her. In his view “size and strength” were important, but “superficiality” was the main thing. He then said that he had not explored the wounds to see how deep they were. He said that he “had not had much experience with wounds in this situation”; most of his experience “was with bullet wounds”. He was further asked whether there were “accepted criteria for forming a judgment as to whether wounds are self-inflicted”, to which he replied:

There are some criteria, but it is often very difficult to say whether a wound is self-inflicted or not.

He repeated that the “apparent shallowness” of the wounds was the “most important factor”. However, he said that he could not tell from his examination how deep the wounds to the stomach were, but he could see from the symptoms that the applicant may be suffering from some internal damage. He also agreed that he had made no notes as to where the wounds were and that he had made no attempt to look at all the wounds or to measure them.

Wells gave evidence that he had studied characteristics of wounds over a long period with a view to interpreting from them their possible causes, including the possible self-infliction of them. By dint of his studies he was able to say that “self-inflicted wounds” often bore common characteristics; eg they “tend to be of a similar type”, in sites that are “readily accessible” to the dominant hand, whether there were signs of “self-defensive injuries”, whether the wounds were to “vital” or “non-vital” areas, and so on. On the other hand, he said that the finding of stab wounds of significant depth to the abdomen “is not a common situation in self-inflicted injuries”. He referred to a “table of characteristics” (produced by Dr Stephen Cordner, forensic pathologist) that the interpreter might usually look for in determining whether wounds might be self-inflicted. Wells had had access to the applicant’s record of interview setting out his history of the altercation. He said that “downward angulation” of wounds to the stomach was not a determinant. Overall, he said he was left “very much with this balance of a possibility of (the wounds) being sustained in the mechanism alleged by (the applicant)”.

The only other expert called to give evidence as to whether the wounds were self-inflicted was Dr Collins, a forensic pathologist of some years standing and a lecturer in forensic pathology at Melbourne and Monash Universities. He was called in the presentation of the defence case. He said that he had made a study of the patterns and characteristics of wounds with a view to determining their cause and whether they were “self-inflicted”. He was familiar with the “table of characteristics” which had been referred to by Wells. He expressed the opinion that:

. . . because of the different types of injuries [ie to the applicant] and their wide scattering over the body, in my view they are more consistent with having been inflicted by another individual rather than having been self-inflicted.

He, too, said that the fact that a wound to the stomach has a “downward angulation” was of no real significance because the relevant positions of the parties cannot be fixed. Knife wounds to stab victims, he said, can be “at all sorts of angles”. He also said that, if knife wounds are self-inflicted “in an attempt to feign an assault”, they “tend to be in areas related to non-vital functions of the body”. He, too, agreed that stab wounds into the abdomen were a contra-indication of self-infliction.

This, then was how the evidence of the experts stood at the time when the judge came to direct the jury. In dealing with it, his Honour said:

A good deal of time was devoted to this matter, the significance of which, of course, lay in the prosecutor’s first scenario that she did not use the knife on him, it was he who injured himself . . .

His Honour then referred to the witnesses who had given evidence and that he intended to summarise the evidence of each of them. He continued:

Before I do so, can I just say something general about how you might approach the evidence which is essentially opinion evidence of these doctors. For the most part, the facts which they were working from were not contentious; the area of debate you will recall is what it all meant and what inference could be drawn. We are back into this familiar area of inference that I spoke to you about earlier. It has an added complication because you, as I imagine, lay people with not much more medical knowledge than I have, are asked to pick and choose between persons with very eminent backgrounds. The important thing to bear in mind is that opinion evidence from doctors . . . is part of the area of fact which is your responsibility and it is your function to decide, in accordance with the principles that I have outlined, between them. If Dr A says black, and Dr B says white and that is a fact which you must decide, then you must decide it. You can do that as you do any evidence, have regard to the demeanour of the witness, you have regard to the way in which the opinions are expressed. You have regard to the logical reasons which are offered for them and whether they appeal to you as a logical thing. You have regard to the facts that they rely upon in support of their conclusions. You have regard also to the way they handled the challenge to their opinions in cross-examination. You have regard to their attitude to the case, whether you regard them to be objective or partisan. You have to make up your own mind about that.

So it is not an easy task, but it is just one of the many difficult tasks that juries often have to perform. Bear in mind that it is evidence and it is for you to determine which of the witnesses you prefer and to apply them in the manner that I have described bearing in mind ultimately where the burden of proof lies.

His Honour then recited the evidence, in turn, of each of the expert witnesses.

During the course of his Honour’s directions, counsel for the applicant asked whether his Honour proposed to direct the jury, on the assumption that there was a “recognized body of science” in which the witness was qualified to express an opinion, whether particular witnesses had expressed, or had a basis for expressing such opinion. His Honour replied that he would not be giving such a direction because:

. . . in an area such as this, which is of interpretation of injuries, . . . such a direction really does not take the matter much further than what I have said . . . the thing is that essentially . . . the observations that are contained in the table are not . . . much more than common sense, and that’s the way the witnesses appear to address them. It’s not as though you are dealing with something truly medical or truly scientific. It’s really a behavioural question, and it seems to me that is particularly within the capacity of the jury.

Counsel returned to the matter again during the course of the charge, asking that the jury be “given guidance about opinion evidence . . . as to whether or not it was a matter of expertise or whether it was simply wild conjecture that some of the witnesses were giving . . .”. His Honour replied that he had:

. . . attempted . . . to intrude no comment as this summary has gone ahead and I would not want to depart from that either to say, for example, if I took the view that this is a proper view they should take, that . . . Dr Castle’s opinion should be thrown out as . . . mere conjecture . . . any more than I would say that your client’s statement to the police is a lot of nonsense . . . I think it’s important that I simply put it to them and I will not exhibit or make any comment about the validity of the expert . . . I will be summarizing . . . fairly your arguments, and insofar as you have taken Dr Castle to task, I will remind them that you have done so, but I would not add the weight of my office to that criticism.

Counsel then submitted that there was no scientific basis for the opinions expressed by Drs Campbell and Castle and that his Honour should so direct the jury with the weight of his office. His Honour said that he would “not give the jury further guidance unless they ask for it on the use that they might make of the expert evidence”.

Against the background of the material to which I have referred, Mr Salek has submitted to this court that the trial judge was in error in admitting the opinions of Mr Campbell and Dr Castle into evidence or, alternatively, ought to have directed the jury that they should disregard their opinions on the basis that their evidence disclosed that they were not experts in the field in which they purported to express opinions or, if they were, no evidential foundation had been given for the opinions which they gave. Counsel was prepared to accept, and asked the court to accept, that there is an organised body of knowledge and experience, based on the observation of wounds alone, which will entitle a person, skilled in the knowledge, to express an expert opinion upon the question of whether particular wounds observed are self-inflicted: cf Clark v Ryan (1960) 103 CLR 486 at 490-1 per Dixon CJ and at 501-2 per Menzies J; R v Bonython (1984) 38 SASR 45 at 46-7 per King CJ. I must confess to some difficulty in comprehending how a person, medically qualified or not, by merely observing wounds, can express an opinion that they have been “self-inflicted”. However, I am prepared to accept that such a body of knowledge exists. The evidence of Wells and Collins tends to lend some support to its existence. What is clear, however, is that such body of knowledge does not derive from recognised principles of medical science, but rather from the study of characteristics and patterns of wounds from which one may infer, by comparison with recognised standards, that the wounds being studied are themselves self-inflicted. Such an expertise would not necessarily be limited to medical practitioners although, by dint of their practice, they would be the more likely possessors of it. In a real sense, as I understand it, the claimed expertise is derived from empirical data in much the same way as those who claim an expertise in analysing and interpreting blood stains to determine their source of origin, whence they emanate and the force of impact required to produce them. However the field of expertise, which we are asked to assume in this case, would seem to me to be necessarily an imprecise one simply by reason of the infinite variety of circumstances in which wounds are produced and can be suffered. In general terms, the law’s own experience suggests that expressions of opinions that a wound or wounds are self-inflicted are those expressed with full knowledge of surrounding circumstances; for example the history given by the victim or the knowledge that the victim was found in circumstances suggesting self-harm, etc. It is, perhaps, instructive that counsel have not been able to cite to the court any case where opinion evidence of this type, given in circumstances where the accused denies self-infliction and asserts infliction by a third party, has been recognised or received in evidence.

Mr Salek has submitted, however, that on the assumption that such a specialised field of knowledge exists, neither Mr Campbell nor Dr Castle had qualified themselves as experts in it and that, accordingly, they should not have been permitted to express the opinions which they gave. He submitted that his Honour was in error in treating Mr Campbell as an expert simply because he “bases his conclusion upon physical features of the wounds he observed”, and that an “opinion expressed by a medical practitioner with his background is therefore receivable”. This was, he submitted, to accord, erroneously, the necessary expertise to the witness simply because he was a surgeon of some years standing and had based his opinion on physical features of the wounds which he observed. There was no suggestion, so Mr Salek submitted, that Mr Campbell had ever undertaken a study of wound characteristics or patterns which would equip him with the expertise to express an opinion that these wounds had characteristics commonly found in wounds which had been self-inflicted to feign an assault. Indeed, said Mr Salek, he conceded that he had not read “any articles or texts which set out criteria for judging whether wounds have been self-inflicted” and that he “did not know” if there were any criteria for making a judgment of that kind. Further, he had said that he was “sure that forensic pathologists (would) have their criteria” but, because he was not a forensic pathologist, he “would not know”. Apart from the fact that he had been told by the applicant that he had been stabbed by “the girl”, he had taken no history from the applicant as to the circumstances in which he claimed to receive his wounds. Mr Salek submitted that the only basis which Campbell had given for his opinion was that the two wounds to the stomach demonstrated a “downward angulation” and that he had ultimately conceded that such a basis was not conclusive of self-infliction. It was further submitted that the only two witnesses who had any claim to expertise in this area were Dr Wells and Dr Collins and each of them had given evidence rejecting the stated basis upon which Mr Campbell had formed his opinion. In this state of the evidence, Mr Salek submitted, his Honour should have acceded to counsel’s submission that the jury ought to have been told to disregard the opinion of Campbell.

Mr Salek submitted that Dr Castle’s opinion was also wrongly admitted because he had not demonstrated that he had any relevant expertise; nor did he demonstrate that he had any foundation to express the opinion which he did. He submitted that his Honour was in error to conclude that he could admit the evidence of Castle because it was not “so logically and factually unsound that I should not permit the jury to evaluate it”. It was clear, Mr Salek submitted, that Castle had demonstrated no factual foundation for the opinion which he was permitted to express. He had only examined the applicant’s wounds “very briefly” and for a purpose quite discrete from forming an opinion as to their cause. He did not form or express the opinion until the police had asked him about a month after his examination. He did not examine all of the wounds nor did he seek to determine where they were or how deep they were. Mr Salek submitted that it was apparent from the evidence given by Dr Castle that his opinion was not based upon any expertise in the subject matter upon which the opinion was professed to be based but upon speculative matters such as the comparative sizes of the applicant and the deceased and the impression which he had formed that the deceased could not have inflicted all the applicant’s wounds without him doing anything to stop her. It was put that Castle had effectively conceded his lack of expertise when he had said that he did “not have much experience with wounds in this situation” and that, although there are “some criteria” for forming a judgment as to whether wounds are self-inflicted, “it is often very difficult to say whether a wound is self-inflicted or not”. He did not say what the “some criteria” were. Ultimately he said that it was the “apparent shallowness” of the wounds which was the predominant factor; yet he had conceded that he had made no assessment to determine how deep the wounds were. Mr Salek submitted that the ultimate opinion expressed by the witness, namely “that at least some of the wounds would have been self-inflicted” — without saying which — was conjecture and not expert opinion. Again Mr Salek submitted that, on the basis of the evidence, his Honour should have acceded to counsel’s submission that he should direct the jury to disregard the evidence of Castle’s so-called opinion.

I agree with Mr Salek that neither the opinion of Mr Campbell nor that of Dr Castle should have been permitted to go before the jury. In my view, neither had shown himself to be qualified to express an opinion in the field of expertise claimed and neither had demonstrated any factual or scientific foundation for the opinion expressed. I also agree with Mr Salek that, at the very least, the judge should have directed the jury to disregard the opinions expressed by those witnesses because, by the end of their evidence, it was, in my view, clear that neither of them possessed any expertise in the organised body of knowledge or experience claimed to support the opinion offered for the guidance of the jury. I must confess that I harbour some sympathy for the trial judge having regard to the manner in which the matter was first presented to him. The matter was dealt with on the written materials put before the judge and without any clear exposition from the Crown as to what the specialised body of knowledge and experience was and how the two doctors claimed to be experts in that field. Neither Campbell nor Castle gave evidence on the voir dire, and it seemed, at least from the transcript, that the Crown was suggesting that any doctor with an experience of treating injuries was qualified to express an opinion of the type which these two witnesses eventually expressed. This assumption appears to have been carried into the learned judge’s reasons for concluding that the witnesses were qualified. From reading the transcript, it seems that it was only when Dr Wells gave evidence that it became clear just how specialised the field of knowledge or experience was, which would qualify a person to express an opinion that a particular wound or wounds was or were deliberately self-inflicted to “mimic” an assault. Expertise in such a field of knowledge, so the evidence suggested, was able to be claimed only by those who had made an habitual study of wound characteristics and patterns and who, by an accumulation of data and comparison against known standards, could express an informed opinion on the question whether particular wounds had been self-inflicted. Neither Campbell nor Castle claimed to have acquired such an expertise. There was no doubt about their expertise as medical practitioners in their respective fields but, as Brennan J pointed out in Murphy v R (1989) 167 CLR 94 at 120, the “admissibility of opinion evidence tendered by an expert depends upon the fact which is sought to be proved by the admission of the evidence”. His Honour referred to the passage in Wigmore on Evidence, Chadbourn Rev, (1979), vol 2, p 750 where it is stated that:

The object is to be sure that the question to the witness will be answered by a person who is fitted to answer it . . . He may be fitted to answer about countless other matters, but that does not justify accepting his views on the matter in hand . . . Since experiential capacity is always relative to the matter in hand, the witness may, from question to question, enter or leave the class of persons fitted to answer, and the distinction depends on the kind of subject primarily, not the kind of person.

So here, there could be little doubt that Campbell and Castle would have an expertise to express opinions on a range of medical matters, but it was apparent, in my opinion, from their evidence that they were not appropriately qualified to express an opinion on the particular subject matter in question.

The trial judge has a continuing responsibility, particularly in a criminal trial where a witness has been allowed to express an opinion on a critical issue, to ensure that such opinion is not left for the jury’s consideration where it has become clear that the person who has expressed it has no qualification to do so, or has provided no factual or scientific foundation for the opinion expressed: see Bugg v Day (1949) 79 CLR 442 at 456-7 per Latham CJ; R v Inch (1990) 91 Cr App R 51 at 54; R v Marquard (1993) 85 CCC 193 at 225. Although it is, of course, true that it is for the judge to decide whether an expert’s opinion is admissible, and for the jury to decide whether the opinion is credible and what weight it should be given, it is also true that an opinion is only as good as the factual or scientific basis upon which it is expressed; and if no such basis is given or, if given, can be seen to be speculative or irrelevant to the opinion expressed, then the opinion will be worthless: R v Turner [1975] QB 834 at 840 per Lawton LJ. In that sense the existence of such a foundation, or proper foundation, for the expression of opinion is a matter relevant to be taken into account on the question of admissibility: R v Bonython [1984] 38 SASR 45 R v Bonython at 46-7 per King CJ; R v J (1994) 75 A Crim R 522 at 531-2 per Brooking J.

In my view, this was a case where it became clear that neither Campbell nor Castle had any satisfactory basis to support the opinions which they were permitted to express. Campbell expressed a basis which he later conceded to be non-conclusive; and because Castle had made it clear that his examination of the applicant had been so brief and carried out for a purpose unconnected with the formation of the opinion which he expressed, it could not possibly have formed a proper foundation for that opinion. In those circumstances it was, in my opinion, not sufficient for the judge to have adopted the “non-interventionist” approach which he did; namely not to intrude any comment of his own but rather to leave it for the jury to determine whether the opinions had an adequate factual basis to support them; and then to decide which of the witnesses they preferred. In my opinion, and for the reasons expressed, the applicant’s counsel was entitled to ask the judge to withdraw the opinions expressed by Campbell and Castle from the jury’s consideration; and it is also my opinion that his Honour should have done so. If that had been done, his Honour would have been bound to tell the jury that there was nothing in the opinion evidence alone upon which they could properly conclude that the applicant had inflicted his own wounds. It is interesting to note that, in refusing counsel’s application to withdraw the opinion evidence from the jury, the learned judge expressed the view that the field in which the opinions were offered, including the criteria to be applied, was a matter of “common sense”, was neither medical nor scientific, but “behavioural” and, as such, “within the capacity of the jury”. It is not entirely clear to me what his Honour was intending by these remarks, but they are open to the interpretation that he had, by then, formed the view that the area claimed was not one for the expression of opinions at all.

Even if, contrary to the view to which I have come, the jury could properly have been asked to consider the opinions expressed by Campbell and Castle, it was not enough to simply tell the jury that it was for them to determine which of the expert witnesses they preferred. This was a case where there were conflicting opinions bearing upon a critical issue in the trial, and yet little guidance was given to the jury about how to approach such evidence generally, let alone in the specific circumstances of this case. If the jury were to accept the evidence of Campbell and Castle then it was, as I have previously stated, inevitable that the only conclusion to which they could come was that the applicant had not acted in self-defence and had not been provoked, and that, when he had told the witnesses that he had been stabbed by the deceased, he was lying. Although, of course, there will be many circumstances in which a jury will be entitled to act on the opinions expressed by some witnesses in preference to the opinions expressed by others: cf Chamberlain v R (No 2) (1984) 153 CLR 521 at 598 per Brennan J, where, as here, the opinions were directed to an issue which would conclude the guilt of the accused, the jury should have been told that they could only accept the opinions expressed by Campbell and Castle, to the exclusion of those expressed by Collins and Wells, if they were satisfied beyond reasonable doubt that the former opinions were correct: R v Sodo (1975) 61 Cr App R 131 at 134.

For these reasons, I have come to the conclusion that grounds 2 and 3 have been made out. The Crown contended that, if the court came to the view that the opinion evidence of Campbell and Castle had been wrongly admitted, or that the jury had been misdirected in respect of it, it ought to conclude that no substantial miscarriage of justice had occurred and that the proviso should be applied. It based this submission upon the proposition that it must have been obvious to the jury that Wells and Collins were far more experienced in the subject matter of the opinion evidence than were Campbell and Castle, that the latter experts had been effectively destroyed by cross-examination and that, accordingly, the totality of the opinion evidence would have been regarded as inconclusive. Indeed Ms Carlin, who argued these grounds on behalf of the respondent, contended that cross-examination had so clearly exposed the lack of expertise in Campbell and Castle, that no account would have been paid to their opinions. Further, the Crown contended that the “self-infliction” by the applicant of his wounds was only “one of the scenarios” put to the jury by the prosecutor and it was open to the jury to have rejected self-defence and provocation on the basis of the “other scenarios” put to them by the Crown.

These submissions, if I might say so, lie uneasily in the mouth of the Crown, which had been responsible for leading the body of opinion evidence which had been precipitated by the hasty and ill-considered impression formed by Mr Campbell on the morning of 2 April. To have then led evidence from Dr Castle, whom the police only approached a month after his “cursory examination” and who had by then spoken to Campbell, was, to say the least, ill-advised. The issue which was created by the opinion evidence of Campbell and Castle was not “just one” of three “scenarios” put by the Crown — it was the “principal scenario” and the one which the Crown exhorted the jury to accept. It was an issue which dominated the trial. There seems to me to have been very little evidence, other than what the Crown now calls the discredited opinion evidence of Campbell and Castle to support its “principal scenario” and the Crown was quite content to use such evidence to invite the jury to accept the case which it put. The mere fact that there were other “scenarios” put by the Crown to support the case of wilful and unprovoked murder can be of little assistance to this court in determining whether the applicant has lost a fair chance of acquittal. For all we know, the jury may have been content to accept the so-called “scenario” which was urged upon them and have been prepared to act on the opinions of Campbell and Castle in doing so. No comfort, I think, can be obtained from the jury’s request (made during deliberations) to have read back to them the prosecutor’s address on “proportionality” and to read into that request a conclusion that the jury must have accepted that the deceased had caused the applicant’s injuries. When one reads that portion of the prosecutor’s address he was particularly confining himself to the question of the stabbing being an unreasonable response by the applicant to being struck with the poker.

It has often been said by this and other courts that ill-informed expert opinion evidence can be seductive of juries particularly when furnished by witnesses of stature: R v Parker (unreported, 1995) R v Parker (unreported, Court of Appeal, 10 August 1995) at 37. Not only is such evidence potentially seductive but it has a tendency, as I suspect it had in this case, to divert the focus of the trial away from the essential issues and to concentrate the focus on the dispute between the experts. As Dawson J said in Murphy v R (1989) 167 CLR 94 Murphy v R at 131:

The admission of such [opinion] evidence carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give to it an authority which is not warranted. In addition the calling of unnecessary expert evidence tends to prolong a trial, particularly when it provokes the calling of further expert evidence in reply. Moreover there is then a risk that the focus of the trial will shift from the evidence of the facts in dispute to the conflict between competing theories of the various expert witnesses.

These remarks are apposite to what occurred in this trial and they accord, if I might respectfully say so, with common experience.

I cannot accept the Crown’s submission that the introduction of what I have concluded was inadmissible opinion evidence has not deprived the applicant of a fair chance of acquittal. Unfortunate though it may be, the conviction must be quashed and another trial ordered. Phillips JA.

I agree in the judgment of the President which I have had the advantage of reading in draft. Chernov JA.

I agree with Winneke P that, for the reasons given by him, the conviction in this case should be set aside and a new trial ordered. I merely wish to deal briefly with some matters concerning the admissibility of the opinion evidence of Dr Castle and Mr Campbell.

Although I have similar misgivings to those of the President about the matter, I shall assume for present purposes that there exists an organised body of knowledge and experience concerned with determining whether a wound on a person has been self-inflicted. On that basis, expert testimony in the form of evidence on that subject may be permissible albeit only from a person who is relevantly skilled and it is for the trial judge to be satisfied that the witness possesses such qualifications, whether they be acquired by study or experience or both: Clark v Ryan (1960) 103 CLR 486 at 491-2 per Dixon CJ and at 501-2 per Menzies J; R v Bonython (1984) 38 SASR 45 at 46 per King CJ. Thus, the central question here is whether Dr Castle and Mr Campbell were sufficiently qualified to give opinion evidence as to whether the applicant’s wounds were self-inflicted. Put more specifically, the question is whether through study or experience or both, they gained the required degree of skill in determining whether a wound was self-inflicted or was caused by a third party.

In my view, on the evidence before the court, neither of those witnesses had the requisite degree of expertise to permit him to give opinion evidence on this issue. No relevant knowledge was gained by them through study. Unlike Drs Wells and Collins, for example, they did not study the characteristics of wounds over a long period of time with the view to interpreting their cause, including self-infliction. They engaged in no other relevant studies. Mr Campbell said that he had read medical texts which made mention of stab wounds, but that was a long time ago and, in any event, they did not deal specifically with the causes of wounds. The writings were essentially concerned with the treatment of wounds. Moreover, he agreed in cross-examination that he had not read any articles or texts which set out criteria for judging whether or not wounds have been self-inflicted.

Similarly, in my view, the professional experience of those witnesses did not qualify them as experts in the relevant area. In the case of Dr Castle, his relevant experience was confined to the treatment of self-inflicted wounds in the course of his medical practice. Many of them were sustained in an industrial context and some were the result of attempts by patients to commit suicide. He said that he was also involved with several murders where the victim had died of stab wounds. But there was no evidence that Dr Castle had any experience in determining by reference to objective standards (or at all) whether a stab wound was self-inflicted or was caused by a third party. Moreover, the method of reasoning used by him in arriving at his opinion demonstrates that he had no expertise in the area in question and that he did not rely on any scientific basis to reach his opinion: see R v Bonython [1984] 38 SASR 45 Bonython at 47 per King CJ. As the President has made clear in his judgment, Dr Castle’s examination of the applicant’s wounds was very brief and hurried and was, in any event, not carried out for the purpose of determining whether they were self-inflicted. His principal concern was to establish the seriousness of the wounds for the purpose of deciding whether they could be adequately treated at the Stawell Hospital or whether they required treatment at the larger and better equipped Wimmera Base Hospital. His primary grounds for concluding that the wounds were self-inflicted were that they were superficial and that in his view, it was unlikely that the deceased would have inflicted them on the applicant without him doing something to stop her. Neither of those grounds involved medical expertise or any scientific learning or experience which was concerned with the method of establishing whether the wounds were self-inflicted.

So far as Mr Campbell is concerned, his experience in relation to knife wounds was also confined to the treatment of patients who sustained accidentally self-inflicted injuries, principally in industrial situations, particularly at the local abattoirs. He said that during his 10 year period as a surgeon he saw one or two patients a year with knife wounds to the chest or abdomen and a number of other smaller wounds to hands and fingers. But there was no evidence that he had experience in establishing by the application of a set of objective criteria, or otherwise, whether an injury was caused by a third party or whether it was self-inflicted. What he saw and treated in relation to patients from the abattoir, were wounds which were accidentally self-inflicted (although it can be assumed that he may have also treated patients who were accidentally wounded by fellow workers). But on the evidence, he was not called upon in his practice to assess and thus had no experience in assessing, whether a wound was self-inflicted or caused by the act of a third party. When a patient from the abattoir came to be treated by him, he was no doubt usually told whether the wound was self-inflicted or was caused by another person. No decision had to be made by Mr Campbell on that issue. Moreover, in forming his opinion, he did not rely on any scientific benchmarks. The principal basis on which he concluded that the wounds were self-inflicted was the apparent downward angle of the blade as was evidenced by the angulation of the wounds. Such an analysis, however, is self-evidently devoid of merit as Mr Campbell virtually conceded in cross-examination, since the angulation of the wound, by itself, does not necessarily indicate how the knife was wielded. In any event, the two witnesses who were probably qualified as experts in the relevant area, namely Drs Wells and Collins, said that the downward angulation of the knife was not significant in determining whether the wound was self-inflicted.

In my view, therefore, the totality of the relevant evidence showed that neither Dr Castle nor Mr Campbell had sufficient expertise to proffer an opinion as to whether the applicant’s wounds were self-inflicted. In my opinion, what Menzies J said in Clark v Ryan (1960) 103 CLR 486Clark at 502 about the qualifications of the expert called in that case, is applicable to the two doctors in question. His Honour said:

This is not a case where a witness has some qualifications and it is in question whether they are sufficient to give his opinions the authority of an expert. If such were the case, any appellate court would give great weight to a decision of the trial judge admitting his opinion evidence and would but rarely form an independent opinion of its own upon the sufficiency of those qualifications. This, however, is a case where a review of his evidence reveals that the [witness in question] had no expert qualifications in the branch of knowledge upon which he was allowed to speak as an authority.

That this was the position may not have been apparent when the two doctors commenced to give their evidence. It should be borne in mind that his Honour did not have the benefit of a voir dire on this issue and the Crown had not made it clear what was the specialised field of knowledge or expertise. Nevertheless, by the time all the evidence was in, it showed that the doctors were not sufficiently qualified to express the opinions which they put before the jury. In those circumstances, it was open to his Honour to revisit his earlier ruling as to the admissibility of their opinions ( R v Bonython [1984] 38 SASR 45Bonython at 48) and, in the circumstances, direct that the jury disregard them: R v Christie [1914] AC 545 at 554-5 per Lord Atkinson. In my view, his Honour should have acceded to the application that was made on behalf of the applicant that he direct the jury to disregard the opinion evidence of the two doctors in question.

Apart from their evidence, the only other prosecution expert called on this issue was Dr Wells. His evidence was equivocal. Dr Collins’ evidence, of course, supported the defence case. Thus, absent the opinion evidence of Dr Castle and Mr Campbell and notwithstanding that there was other evidence on which the Crown could rely in support of its case on this point, the Crown case on this critical issue was weak or, to put it at its highest, not strong. But because the evidence of Dr Castle and Mr Campbell was left with the jury, there is a likelihood or at least a real risk that they took it into account and on that basis concluded that the applicant had stabbed himself in order to raise the false defence of provocation and that this showed a consciousness of guilt on his part. Once such a conclusion was reached, the only verdict that could have been returned was one of guilty.

In the circumstances, therefore, leaving the inadmissible opinions with the jury deprived the applicant of a fair chance of an acquittal. Consequently, the conviction should be quashed and a new trial ordered.

ORDER:
Leave to appeal granted;appeal allowed.

D M Salek for the applicant. W H Morgan-Payler QC and R E Carlin for the respondent.
Solicitors for the applicant: Victoria Legal Aid. Solicitor for the respondent: Peter Wood, Solicitor for Public Prosecutions.

Breach of Prosecution Duties – Criminal procedure – Trial – Fair trial – Role of judge – Role of prosecuting counsel – Interjections – Prejudicial comments – Appellant tried for and convicted of theft – Prosecuting counsel interjecting prejudicial comments during testimony by witnesses – Judge manifesting antipathy to appellant and defence counsel – Whether conviction sustainable: Randall v R Cayman Islands Privy Council

[2002] 5 LRC 678, [2002] UKPC 19, [2002] 1 WLR 2237

Randall v R

Cayman Islands
Privy Council
[2002] 5 LRC 678, [2002] UKPC 19, [2002] 1 WLR 2237
HEARING-DATES: 4 March, 16 April 2002
16 April 2002
CATCHWORDS:
Criminal procedure – Trial – Fair trial – Role of judge – Role of prosecuting counsel – Interjections – Prejudicial comments – Appellant tried for and convicted of theft – Prosecuting counsel interjecting prejudicial comments during testimony by witnesses – Judge manifesting antipathy to appellant and defence counsel – Whether conviction sustainable.

HEADNOTE:
After a trial lasting 41 days the appellant was convicted on four counts of theft and one count of obtaining a valuable security by deception and sentenced to imprisonment for four and a half years, with orders for the payment of compensation. The Court of Appeal allowed his appeal against conviction for obtaining by deception but dismissed his appeal against the convictions of theft. He appealed, by special leave, to the Privy Council against conviction and sentence, alleging that his trial had been conducted unfairly because of the conduct of prosecuting counsel which the trial judge had failed to restrain.

HELD: Appeal allowed. Convictions quashed.

The right of a criminal defendant to a fair trial was absolute and was to be enjoyed by the guilty as well as the innocent, for a defendant was presumed to be innocent until proved otherwise in a trial conducted fairly. Several basic rules had been developed effectively to safeguard the overriding requirement of fairness. (1) The duty of prosecuting counsel was not to obtain a conviction at all costs but to act as a minister of justice. (2) The attention of the jury was not to be distracted from its central task of deciding whether, on all the evidence before it, on all the submissions made and on the judge’s legal direction and summing up of the evidence, the guilt of the defendant was or was not established to the required standard. Therefore evidence should normally be given without interruption by counsel. The procedure gave prosecuting and defence counsel opportunities to address the jury, usually before and after evidence was called, and counsel were not permitted to address the jury at other times or, under the guise of interjection, to make observations intended to influence the jury. There could never be any justification for bullying, intimidation, personal vilification or insulting of a witness or defendant by counsel or for the exchange of insults between counsel; any disparaging comment on a witness or a defendant should be reserved for a closing speech. Reference should never be made to matters prejudicial to a defendant which were not before the jury. The judge’s summing up should proceed without interruption by counsel and it could never be proper for counsel to make any

interjection prejudicial to the defendant during the summing up. (3) It was the responsibility of the judge to ensure that the trial was conducted in an orderly and proper manner, fair to both prosecution and defence. The judge should not be, nor appear to be, partisan. He should not disparage the defendant or defence counsel. If counsel began to misbehave, the judge had to at once exert his authority to require observance of the accepted standard of conduct. If a judge had occasion, in any serious or sustained manner, to criticise defence counsel or the conduct of the defence case, it would usually be prudent for him to do so in the absence of the jury and to ensure that his disapproval of, or irritation with, counsel did not affect the jury’s verdict. If the judge chose to express personal opinions in the course of summing up, he should do so in a restrained, moderate and balanced way. The appellant had complained that prosecuting counsel had repeatedly interpolated prejudicial comments while examining prosecution witnesses, repeatedly interrupted the cross-examination of such witnesses, often with prejudicial comment, repeatedly interrupted the examination-in-chief of the appellant, interpolated prejudicial comment in his cross-examination of the appellant, made imputations about the conduct and motives of defence counsel and interrupted the judge in the course of his summing up. Although the case against the appellant was a very strong one and his explanations might well have been properly rejected by a jury, and although there were grounds for criticising the conduct of the defence and the evidence of the appellant, there were such departures from good practice in the course of the trial as to deny the appellant the substance of a fair trial. Prosecuting counsel had conducted himself as no minister of justice should do. The judge had failed to exert his authority to control the proceedings and enforce proper standards of behaviour: he had allowed himself to be overborne and his antipathy to both the appellant and his counsel to be only too manifest. While none of the matters complained of by the appellant, taken alone, would have supported a successful appeal, the Board could not be sure that, taken together, they did not inhibit the presentation of the defence case and distract the jury’s attention from the crucial issues. It was clear that the Court of Appeal had not a adequately examined the matters relied on by the appellant (see paras [10]-[11], [27]-[30], post). Dictum of Rand J in Boucher v R (1954) 110 Can CC 263 at 270 applied.

Per curiam. The judge should have given a good character direction to the jury. While the lack of such a direction is material and might lead to the quashing of a conviction, it need not do so, even where the issue of character is squarely raised by the defence, if the appellate court is satisfied that even with the benefit of a proper direction the jury would inevitably have convicted (see para [32], post). Anderson v R [1971] 3 All ER 768, Berry v R [1992] LRC (Crim) 82, R v Aziz [1995] 3 LRC 254, Barrow v State [1998] 4 LRC 517 and R v Macdonald (25 March 1999, unreported), CA CD, applied.

CASES-REF-TO:
Cases referred to in judgment

Anderson v R [1971] 3 All ER 768, [1972] AC 100, Jam PC

Barrow v State [1998] 4 LRC 517, [1998] AC 846, T&T PC

Berry v R [1992] LRC (Crim) 82, [1992] 3 All ER 881, [1992] 2 AC 364, Jam PC

Boucher v R (1954) 110 Can CC 263, Can SC

R v Aziz [1995] 3 LRC 254, [1995] 3 All ER 149, [1996] AC 41, UK HL

R v Banks [1916] 2 KB 621, [1916-17] All ER Rep 356, UK CCA

R v Hulusi (1973) 58 Cr App R 378, UK CA

R v Macdonald (25 March 1999, unreported), CA CD

R v Puddick (1865) 4 F & F 497

INTRODUCTION:
Appeal

The appellant, Barry Victor Randall, appealed by special leave of the Privy Council against the decision of the Court of Appeal of the Cayman Islands (Zacca P, Georges and Kerr JJA) on 13 August 1998, for reasons delivered on 10 December 1998, allowing his appeal against conviction on one count but dismissing his appeal against conviction on four counts and against sentence on 8 August 1997, after trial before Williams J and a jury. The facts are set out in the judgment of the Board.

COUNSEL:
James Guthrie and Thomas Roe for the appellant.; David Perry, Garreth Patterson and Samuel Bulgin (Solicitor General) for the respondent.

16 April 2002. The following judgment of the Board was delivered.

16 April 2002

Solicitors:; Simons Muirhead & Burton for the appellant.; Treasury Solicitor for the respondent.

PANEL: Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hutton, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry

JUDGMENTBY-1: LORD BINGHAM OF CORNHILL.

JUDGMENT-1:
LORD BINGHAM OF CORNHILL.

[1] The appellant stood trial in the Grand Court at George Town on an indictment containing five counts: four counts of theft and one count of obtaining a valuable security by deception. After a trial lasting 41 days before Williams J and a jury he was on 8 August 1997 convicted on all counts and sentenced to 4 years’ imprisonment. Orders for payment of compensation of US $500,000 were made under each of counts 2 and 5, with a consecutive sentence of 6 months’ imprisonment on each count on default of payment. The appellant appealed against conviction and sentence and on 13 August 1998 the Court of Appeal of the Cayman Islands dismissed his appeal against conviction on counts 1-4, allowed his appeal against conviction on count 5 and dismissed his appeal against sentence (save that the second compensation order necessarily fell on the quashing of the conviction on count 5). The Court of Appeal (Zacca P, Georges and Kerr JJA) gave the reasons for its decision in writing on 10 December 1998. By special leave of the Board the appellant now renews his appeals against conviction and sentence. The primary ground of his appeal against conviction is that the trial was conducted in a manner which was grossly and fundamentally unfair. The source of this unfairness, it is said, was the conduct of prosecuting counsel, Mr Richard Small, which is said to have undermined the integrity of the trial process. But complaint is also made that the trial judge wrongly failed to restrain the conduct of prosecuting counsel and on occasion endorsed it. The appellant advances additional grounds of appeal against conviction based on the trial judge’s directions to the jury on dishonesty and the omission of a good character direction. The sole ground of appeal against sentence relates to the compensation order which, it is said, should not have been made without inquiry into the appellant’s means.

The case against the appellant

[2] Count 1 of the indictment against the appellant read:

‘Barry Victor Randall between 10th day of May 1988 and 30 March 1989 stole assets to the value of the sum of $200,000, US currency, the property of clients of Cayman Capital Trust Company namely the Asian Sources Retirement Plan (c/o Trade Media Holdings Ltd a Hong Kong company) formerly known as Publishers Representatives Ltd.’

The second count was to the same effect, save that the starting date was a little later and the sum allegedly stolen was S500,000. The third count also was to the same effect, save that the starting date was later again and the sum allegedly stolen was S50,000. The prosecution case against the appellant on these three counts was, in brief summary, that the appellant, acting as a professional trustee, had been entrusted with trust funds which he had then used for his own purposes. The victims of the thefts were the beneficiaries of the trust fund, the assets of which had been deposited with Cayman Capital Trust Company (CCTC), a company run by the appellant. The trust fund in question was called the Asian Sources Retirement Plan (ASRP).

[3] The ASRP was a pension fund which had been financed and established by a Hong Kong group of companies of which the parent was known as Trade Media Holdings (HK) Limited (TMHK). TMHK had established the pension fund for the benefit of employees of its group. The Swiss Bank and Trust Corporation of Cayman (‘Swiss Cayman’) was originally the trustee of the pension scheme, at a time when the appellant was an employee of Swiss Cayman. As an employee he dealt with matters arising in relation to ASRP and had dealings with the managing director and investment manager of the group. When, in 1987, the appellant’s employment with Swiss Cayman came to an end, he formed CCTC, of which he became managing director, and by a trust deed of 6 April 1988 TMHK appointed CCTC as trustee of the ASRP funds in place of Swiss Cayman. CCTC was a company duly licensed to carry on the business of a trust company with overseas customers.

[4] Under the terms of the trust deed the assets owned by ASRP, formerly held by Swiss Cayman, were transferred into the name or control of CCTC. The prosecution case was that the appellant, during 1988 and 1989, had used these trust funds for his own purposes. By the time the alleged fraud was discovered the loss suffered by TMHK was said to be in excess of S1 million. It was alleged that the appellant, having obtained control of these ASRP assets, had used them as security for loans, which were obtained for his own benefit or that of his company, but not for the benefit of ASRP or TMHK. It was further alleged that the appellant went to some lengths to conceal the use of these assets as security for the loans, which he obtained from Credit Suisse Guernsey Limited (‘Credit Suisse’). It was said that the funds had been dispersed on the instructions of the appellant and then used for such purposes as investment in a hotel building project and the repayment of a loan to the depositor who featured in count 5. When in due course Credit Suisse demanded repayment of the loans the ASRP assets were sold on the instructions of the appellant to pay off CCTC’s indebtedness to Credit Suisse. Reliance was placed on the failure of the appellant to seek the approval of TMHK for these transactions, and on his

failure to reveal the true facts to an inspector appointed to oversee CCTC’s management of three trust accounts. In the course of a visit to CCTC the inspector noted that a file relating to a Caymanian company named Wintergreen Holdings Ltd was missing; in due course this file was found and within it were documents suggesting that Wintergreen had received the proceeds of the loans. In due course it became clear that CCTC was insolvent, and application was made to wind it up. The deficiency noted in its state of affairs was nearly S4 million. When the appellant was interviewed in the presence of his lawyer at police headquarters, he declined to answer many of the questions put to him concerning his dealings with the assets of ASRP and gave no explanation for his conduct.

[5] The fourth count of the indictment charged the appellant with theft of assets to the value of approximately $106,300 currency, the property of Mr Anthony Tan, a client of CCTC and beneficial owner of a company named Mums Incorporated. Mr Tan was a retired Canadian businessman living in Toronto who was the sole shareholder of Mums. He wished to apply for residence in the Cayman Islands and transferred his savings of $160,574 to CCTC with instructions that the money was to be placed on deposit in the name of the company for his use when he became resident. Mr Tan’s application for residence was successful and he arrived in the Cayman Islands in 1988. He then sought payment of the balance of the money he had deposited, some of the moneys having been properly disbursed, and (according to the prosecution) the appellant gave a series of unsatisfactory reasons for not paying the money demanded. At one point a cheque for $57,000 was given to Mr Tan, but it was returned unpaid.

[6] The fifth count of the indictment charged the appellant that-

‘between 24 November 1987 and 30 June 1988 [he] dishonestly obtained from Ronald W Jeffrey valuable securities to the value of $500,000 US currency with the intention of permanently depriving the said Ronald W Jeffrey thereof by deception, namely by falsely representing that a Sally Spence, on whose account for investment the said Ronald W Jeffrey intended to part with the said securities, was shareholder of a Cayman Islands company named “Sunrise Starts Tomorrow Management Limited”, the company by which the said investment was to be conducted, Barry Victor Randall, well knowing that the said Miss Sally Spence was not a shareholder of that company even while purporting to the said Ronald W Jeffrey to accept payment of the said securities on the premise that she was in fact a shareholder.’

The prosecution case was that the appellant had obtained S500,000 from Mr Jeffrey, an American businessman, on the basis of false representations. The appellant had met Mr Jeffrey through Sally Spence and Mr Jeffrey deposited the sum in question with CCTC in early 1988 when the appellant had offered Mr Jeffrey a 10% return on the funds and had said that the deposit of the funds would enable him (the appellant) to obtain a loan using the funds as security. The appellant, it was alleged, repaid Mr Jeffrey the sum deposited plus interest, using the loan he had obtained from Credit Suisse. But Mr Jeffrey also invested S500,000 in a business venture (namely a nightclub) involving the Sunrise

company, having given instructions to the appellant to form Sunrise as a bearer share corporation controlled by Sally Spence. In 1991 Mr Jeffrey was seen by the police and for the first time discovered that his instructions had not been carried out and that Sally Spence was neither a director nor a shareholder of Sunrise.

[7] The appellant was arraigned on 9 June 1997 and pleaded not guilty. Mr Small, for the prosecution, opened the case and called ten witnesses whose evidence ended on 2 July. The appellant (who was represented by two counsel) gave evidence in chief from 3 July until 15 July and was cross-examined from 15 July to 23 July. He called a single character witness. The trial judge summed up the case to the jury over five days, at the end of which the jury very quickly convicted.

[8] It is unnecessary to explore in detail the defence advanced at the trial by the appellant. The trial judge summarised the effect of it in his direction to the jury:

‘The case for the defence in a nutshell is that the defendant did nothing that was dishonest. That he acted properly throughout, that he acted within the powers of the trust deed and the trust law and was perfectly entitled to do what he did, and that that was his belief and it was an honest belief.’

Fairness

[9] A contested criminal trial on indictment is adversarial in character. The prosecution seeks to satisfy the jury of the guilt of the accused beyond reasonable doubt. The defence seeks to resist and rebut such proof. The objects of the parties are fundamentally opposed. There may well be disputes concerning the relevance and admissibility of evidence. There will almost always be a conflict of evidence. Some witnesses may be impugned as unreliable, others perhaps as dishonest. Witnesses on both sides may be accused of exaggerating or even fabricating their evidence. Defendants may choose to act in an obstructive and evasive manner. Opposing counsel may find each other easy to work with or they may not. It is not unusual for tempers to become frayed and relations strained. In a fraud trial the pressure on all involved may be even more acute than in other trials. Fraud trials tend to involve a great deal of documentation, which is particularly cumbersome to handle in a jury trial. They tend to involve much unfamiliar detail, often of a technical nature, which it is difficult for many people to understand, assimilate, retain and recall. And fraud trials tend to be very long, which in itself tends to increase the strain on all involved, whether the defendant, witnesses, jurors, counsel or the judge. The appellant’s trial was said to be the longest criminal trial ever held in the Cayman Islands.

[10] There is, however, throughout any trial and not least a long fraud trial, one overriding requirement: to ensure that the defendant accused of crime is fairly tried. The adversarial format of the criminal trial is indeed directed to ensuring a fair opportunity for the prosecution to establish guilt and a fair opportunity for the defendant to advance his defence. To safeguard the fairness of the trial a number of rules have been developed to ensure that the proceedings, however closely contested and however highly charged, are

conducted in a manner which is orderly and fair. These rules are well-understood and are not in any way controversial. But it is pertinent to state some of them:

(1) The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice: R v Puddick (1865) 4 F & F 497 at 499 and R v Banks [1916] 2 KB 621 at 623. The prosecutor’s role was very clearly described by Rand J in the Supreme Court of Canada in Boucher v R (1954) 110 Can CC 263, 270:

‘It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.’

(2) The jury’s attention must not be distracted from its central task of deciding whether, on all the evidence adduced before it, and on all the submissions made, and on the judge’s legal direction and summing up of the evidence, the guilt of the defendant is or is not established to the required standard. From this imperative several subsidiary but important rules derive.

(i) Evidence should ordinarily be given without interruption by counsel. If either counsel has cause to object to any evidence adduced or about to be adduced such objection should be made promptly and shortly and the judge should rule. If such an objection prompts any extended argument or seems likely to do so, and particularly if the argument bears on the substantial merits of the case, it should take place in the absence of the jury.

(ii) The procedure of the criminal courts provides opportunities for prosecuting and defence counsel to address the jury, usually before and after the calling of evidence. Counsel are not (save where the rules allow defence counsel to open the defence) permitted to address the jury at any other time, nor is it permissible under the guise of an interjection for counsel to make observations intended to influence the mind of the jury.

(iii) While the duty of counsel may require a strong and direct challenge to the evidence of a witness, and strong criticism may properly be made of a witness or a defendant so long as that criticism is based on evidence or the absence of evidence before the court, there can never be any justification for bullying, intimidation, personal vilification or insult or for the exchange of insults between counsel. Any disparaging comment on a witness or a defendant should be reserved for a closing speech.

(iv) Reference should never be made to matters which may be prejudicial to a defendant but which are not before the jury.

(v) Unless the judge seeks the assistance of counsel on a point of factual detail, or makes a factual misstatement which can be quickly and uncontroversially corrected, his summing up should proceed without any

interruption by counsel. If, as not infrequently happens, prosecuting or defence counsel wish to bring some suggested misdirection or omission or inaccuracy to the attention of the judge, this should be done, preferably at the close of the summing up or at some convenient interlude in the proceedings, and in the absence of the jury unless the point is one which can safely be discussed in their presence without risk of prejudice. It can never be proper for counsel to make any interjection prejudicial to the defendant when the judge is in the course of summing up to the jury.

(3) It is the responsibility of the judge to ensure that the proceedings are conducted in an orderly and proper manner which is fair to both prosecution and defence. He must neither be nor appear to be partisan. If counsel begin to misbehave he must at once exert his authority to require the observance of accepted standards of conduct. He should not disparage the defendant in the course of the evidence. Nor should he disparage defence counsel, since jurors inevitably tend to identify clients with their counsel. Sometimes a trial judge may have briefly to check or rebuke counsel. If, however, he has occasion, in any serious or sustained manner, to criticise the conduct of the defence case or to criticise or rebuke defending counsel, it will usually be prudent for the judge to do so in the absence of the jury and he should ensure that his disapproval of or irritation with counsel does not affect the jury’s judgment. If he chooses to express personal opinions in the course of the summing up, he should do so in a restrained, moderate and balanced way.

[11] It cannot be too strongly emphasised that these are not the rules of a game. They are rules designed to safeguard the fairness of proceedings brought to determine whether a defendant is guilty of committing a crime or crimes conviction of which may expose him to serious penal consequences. In a criminal trial as in other activities the observance of certain basic rules has been shown to be the most effective safeguard against unfairness, error and abuse.

The appellant’s complaints of unfairness

[12] The appellant makes a number of complaints of unfairness. These complaints fall under several different heads. First it is complained that prosecuting counsel repeatedly interpolated prejudicial comments while examining prosecution witnesses, repeatedly interrupted the cross-examination of prosecution witnesses, often with prejudicial comment, repeatedly interrupted the examination in chief and re-examination of the appellant, interpolated prejudicial comment in the course of his cross-examination of the defendant and interrupted the judge in the course of his summing up. The appellant illustrates these complaints by reference to the transcript. It is difficult adequately to appreciate the force of these complaints without extensive quotation from the transcript of passages significant largely because of their length and frequency. But some references should be given. Mr Baker, an accountant, was a prosecution witness. During his examination in chief Mr Small interjected prejudicial comment at pp 306, 307, 308, 309, 310 and 311. There was similar comment during the re-examination of Mr Baker. Similar comment was made during the examination in chief of Mr Seitz at pp 428 (when reference was made to ‘this wild suggestion put by the defence’) and 429. The cross-examination of prosecution witnesses was similarly interrupted by Mr

Small. Examples were pointed out at pp 185, 188, 189 and 190 of the transcript of the cross-examination of Mr Hinrichs. When defence counsel, Mr Collins, sought to cross-examine Mr Tan, Mr Small made an objection which led to argument over several pages of the transcript and ended with the judge warning Mr Collins not to exhaust his patience (pp 1241-1247). When Mr Collins examined the defendant in chief he was repeatedly interrupted. Examples are found in the transcript at pp 1454, 1526, 1598, 1814, 1829-1833, 1846, 1876, 1890, 1891, 1894, 1903 and 1908. When cross-examining the appellant Mr Small broke off to make prejudicial comments. Examples are found at pp 2387, 2467 and 2477 of the transcript. When Mr Collins attempted to re-examine the appellant, Mr Small intervened so constantly as effectively to preclude any re-examination at all: see pp 2635-2686. During the judge’s summing up Mr Small repeatedly interrupted. Reference to the transcript shows repeated interjections, sometimes prompting a continuing dialogue: examples are found in the transcript of the summing up which is before the Board at pp 736, 741, 742, 745, 980, 987, 1228, 1270 and 1273. The last of these exchanges, during the summing up and in the presence of the jury, was to this effect:

‘MR SMALL: So that I’m submitting, my Lord, is relevant documentary evidence. All of them under Mr Randall’s hand, which ought to be correlated to the answers which he gave here, because what he’s saying here is he could have paid-

MR COLLINS: My Lord, this is an address, you know, my Lord, because if my learned friend had this now when Mr Randall was in the dock, he should have asked him about it then.

MR SMALL: Mr Randall gave this dishonest answer in re-examination.

MR COLLINS: Don’t say that, Mr Small.

MR SMALL: This answer was given in re-examination, and I’m submitting it is a dishonest answer in light …’

[13] A further complaint relates to running comments made by Mr Small on the motives and conduct of the appellant. At p 1044 of the trial transcript Mr Small made suggestive play with the name of a witness named Crook. At pp 1480, 1481 and 1482 he accused the appellant and Mr Collins (during the examination in chief of the appellant) of attempting to ‘smear’ prosecution witnesses. When, at p 1515, Mr Collins asked the appellant in chief what the ASRP fund comprised, Mr Small inquired whether he was referring to the time when the appellant took out $500,000 or to $200,000. On a further question put to the appellant in examination-in-chief (at p 1810) Mr Small commented on the answer ‘He has learned the skill of circumlocution’. At p 1829 Mr Small referred to the appellant’s ‘resistance’ to the questions his counsel was asking and at p 1830 criticised the appellant for not answering the questions he was asked by his counsel. At p 1903 Mr Small referred, during the examination in chief of the appellant, to ‘the manoeuvres that are available to somebody with trust experience to disguise where funds go’. At p 2006 during cross-examination of the appellant Mr Small interjected:

‘I don’t want any long speech, I have asked a specific question and he is being evasive, he has been wasting time, he has been facilitating in it and I ask, My Lord, that you insist that the witness answer what is a simple, straightforward question. There is no need for any speech. That is why his evidence-in-chief has taken eight days. It is a simple question, My Lord. Simple direct question which goes to the heart of the matter …’

At p 2029 he described an answer of the appellant as ‘smoke’. The charge of circumlocution was repeated at pp 2072 and 2073. At p 2140 there is found this exchange:

‘MR COLLINS: It is not necessary to shout.

MR SMALL: It is necessary because the witness has been behaving in this way all along and has been encouraged in it by your observations.’

At p 2259 there was an exchange between counsel to this effect:

‘MR COLLINS: My Lord, my learned friend is shouting me down, he shouting down the witness-

MR SMALL: Yes, because you ask questions which are ridiculous, Mr Collins.’

At pp 2615 and 2616 Mr Small accused the appellant of ‘fakery’ and ‘faking ignorance’. At p 2630 he suggested that an answer given by the appellant was ‘another cowardly lie’. During re-examination of the appellant Mr Small objected to a question put by Mr Collins on the grounds that the answer given by the appellant in cross-examination had been ‘absolutely clear; albeit it wasn’t believable’ (p 2658). On none of these occasions did the judge seek to restrain or reprove counsel. He more often echoed Mr Small’s complaints. One example may be found at pp 2003-2004 of the transcript:

‘THE COURT: Yes, what’s your answer, Mr Randall? He doesn’t want nice-sounding words, he wants a direct answer to the question.’

Another example is found at pp 2552-2553:

‘MR SMALL: My Lord, my Lord, you know I went through all of this before with Mr Randall. I thought my friend was going to complain that I was going back over ground. I am just rolling it up together so my friend gets the whole picture.

THE COURT: Very well. He doesn’t like the picture that way.

MR SMALL: He doesn’t like the whole picture.’

[14] A further complaint is based on imputations made by Mr Small against the conduct and motives of defending counsel. References to the making of wild suggestions and the smearing of witnesses have already been noted. Mr Collins was again accused of seeking to smear witnesses (p 1493), of making a cowardly attack (p 1494) and of wasting time (pp 1513, 1804, 2677). His behaviour was described as ‘disgracing’ the legal profession (pp 1541-1542), as ‘dishonouring the law’ (p 1542) and as ‘disgraceful’ (p 1543). His personal integrity was further impugned as in this exchange (at p 1545):

‘MR COLLINS: And I accept what Your Lordship has said, but I say that I am of the view that I only need to go as far as I went.

THE COURT: No. No. No. No.

MR SMALL: No, nobody could honestly believe that. Not for a moment could you believe that.’

He was accused of seeking to insinuate material into the record which had not been established in evidence (pp 1818, 1821). Mr Small was ‘astonished by what Mr Collins was just trying to say’ (p 1821). On occasion Mr Small’s treatment of his opponent was one of contempt, as in this exchange (p 1888):

‘MR COLLINS: I don’t see that as something in dispute. It was put to-

MR SMALL: He doesn’t see it as something in dispute? He doesn’t see it as something in dispute? Is that what I heard Mr Collins say?

MR COLLINS: Hold on. Hold on. It is in dispute.

MR SMALL: I wonder where Mr Collins has been for the last five weeks.’

In one of his questions Mr Collins was said to be ‘creating a smoke-screen around the real issues here with such a question’ (p 1899). At p 1906, during the examination-in-chief of the appellant, Mr Small observed:

‘This is-this is-you know what this is, my Lord, this sounds like the Tyson defence. You nibble on one ear and you go and nibble on the next.’

At p 2187 the appellant was accused (during his cross-examination) of wasting time and his counsel of encouraging him. Again the transcript shows that far from restraining resort to personal abuse the judge repeatedly took a similar line himself. At p 1819, in the presence of the jury, he told Mr Collins ‘Don’t try that sort of trick’. At p 1821 he described himself as ‘absolutely disgusted’ by Mr Collins’ behaviour. At p 1844 he accused Mr Collins of refusing to put a direct question to the appellant, adding ‘and that has been your tactics throughout the whole of this case’. He complained that Mr Collins had made a false allegation against the court, which was ‘unpardonable’ (p 1845). He accused Mr Collins (at p 1851) of ‘dancing and dodging around’ and described his behaviour as ‘atrocious’ (p 1852). At p 1853 the judge again suggested to Mr Collins that he ‘just kept dodging around’. At pp 1905-1906 the judge is recorded as saying:

‘Well, you see, what is happening, Mr Small, is we are back to where we were on the 27th of June when Mr Collins said that I prevented him from doing certain things which I had not prevented him from doing, but it was the same sort of thing that he just goes around and goes around and goes around and goes around trying to nibble, nibble, nibble, nibble instead of going straight to the issue. And when he has detected that he is not going in the right direction, then he just makes a slight tilt and comes back almost with the same thing.’

At p 2700 the judge observed ‘still bob and weaving, Mr Collins’.

[15] Some of the examples already given illustrate the insulting and overbearing conduct of Mr Small to which objection is taken. But there are other examples. When, at p 1822, Mr Collins said that his conscience was clear,

Mr Small retorted ‘I am not talking about your conscience, I am talking about your state of ecstasy’. When cross-examining the appellant about a document which the appellant said was a journal voucher, Mr Small said (at p 2049):

‘I didn’t ask you if it was a journal voucher, Mr Randall. Answer my question. It’s also a piece of paper, it is also an oblong shape, it also has writing on it. I didn’t ask you that. Answer my question …’

In the course of Mr Small’s cross-examination of the appellant there occurred this exchange (at pp 2189-2190):

‘MR SMALL: I am suggesting to you that your dishonesty is only matched by your brazenness?

THE COURT: Answer?

THE APPELLANT: I would suggest that you are very wrong.

MR SMALL: Which is it? You are more dishonest than you are brazen or you are more brazen than you are dishonest?’

The judge did not in any way deprecate or seek to restrain such questions but instead reminded the jury of this exchange when summing up. At p 2453 Mr Small referred to the ‘slipperiness’ of the appellant. At p 2620 he said to the appellant:

‘You see, that is an example of your smartness. You think you are smart. Are you now challenging Mr Tan’s evidence that such a conversation between you and he took place? Are you challenging it?’

At p 2670 Mr Small took it upon himself to reprove Mr Collins:

‘Is that what you’re saying about His Lordship’s ruling? Don’t be rude to the court. The court has upheld my objection. You’re being rude to the court. Don’t be rude to the court. Let’s proceed so we don’t waste any more time.’

[16] The appellant complains that on occasion Mr Small made scarcely veiled references, in the presence of the jury, to the existence of material prejudicial to the appellant which was not before the court. At pp 602-603, during the cross-examination of Mr Jeffrey by Mr Collins, there occurred this exchange:

‘MR SMALL: … The issue on this count is whether or not Mr Randall made a misrepresentation to Mr Jeffrey to get him to hand over $500,000. How it was spent and how it wasn’t spent is not relevant, with the greatest of respect, My Lord, and we’re going to go into endless unconnected matters and then my friend is going to want to cut off the witness in mid-statement about what he calls prejudicial matters, matters which I deliberately didn’t lead. We have bags of information about Mr Randall which we could have led evidence on which wouldn’t have put him in a good light but because it doesn’t relate to the charge which is before the court, namely how he obtained the $500,000 and how he acted in relation to the representations that he had made to Mr Jeffrey and what changes he made there, those are the relevant issues at the time he received the money. If my friend begins to open up areas about how he handled the money after having received it,

then I can only say, My Lord, that the re-examination may carry us into areas which my friend may feel uncomfortable about. He has got one or two answers that he’s tried to cut off from the witness and it’s because he’s going outside of the issues which, strictly speaking are before this court.

MR COLLINS: Let me respond, My Lord.

THE COURT: Mr Collins, you have to bear in mind if you go and open certain areas in cross-examination that you will have opened yourself to certain issues.’

During the examination-in-chief of the appellant, during one of his many interjections, and again in the presence of the jury, Mr Small made a similar reference (at p 1904):

‘MR SMALL: And this, My Lord, if I may say so is bordering on what is known as “smart man defence”.

THE COURT: Yes.

MR SMALL: It seems to me to be the other side of the defence ambush that my friend told us that he was entitled to conduct and if a man is smart enough to hide the proceeds of the-of such deeds, then the Crown hasn’t proved its case. There is no requirement to prove that nor to prove either that he was a poor man or a rich man.

THE COURT: Yes. This is not a relevant issue. This is not a relevant issue.

MR SMALL: And be careful if you continue on that line, I will open up something. I am warning you.’

[17] Much of the judge’s very lengthy summing up was taken up in reading, in extenso, the questions and answers which he had somewhat laboriously recorded in his notebook during the trial. The judge did, however, describe an answer of the appellant as ’roundabout’ (p 713) and continued (at p 714):

‘… but you don’t get a straight answer, you get a roundabout way to sort of give you the impression that this had nothing to do with Jeffrey so to speak. It seems to me quite clear that the purpose of obtaining this money was to repay Jeffrey his $500,000, but it’s a matter for you.’

He described the absence of loan documentation for one transaction as ‘amazing’ (p 715). At p 1107 he observed:

‘So, what is really happening here now is we’re getting the contents. Somehow we’re getting the contents sneaking in, although that was not the purpose for which the document was tendered. You’re told one moment that the contents of the document is not tendered for proof of its contents, but then some effort is now being made to deal with the content.’

He described the appellant’s offer of a 20% return as ‘a sort of coated poison pill so to speak’ (p 1109), himself preferring a lower but more assured rate of return. He regarded the approach to investment described by the appellant as unrealistic (pp 1110-1111). He observed (at p 1268):

‘It may occur to you, Madam Foreman and Members of the Jury, you may form the view that Mr Randall seemed to remember when he wants to remember all the details about the documents, but when he doesn’t want to remember, he doesn’t recollect and he doesn’t recall, but it’s a matter for you.’

He failed to direct the jury on the appellant’s good character. Instead he reminded the jury of the evidence given by the appellant’s character witness, including some questionable cross-examination of that witness by Mr Small, and concluded by observing (at p 1280):

‘So this is a man of great loyalty and nothing is going to shake him from his views with regard to Mr Randall.’

After the summing up was concluded there was discussion, in the presence of the jury, about the likely course of the jury’s deliberation after this long trial, and Mr Small queried in the presence of the jury why Mr Collins thought they might need as long as a day to deliberate.

The appellant’s appeal to the Court of Appeal

[18] The first ground of appeal relied on by the appellant in his notice of appeal was that:

‘The learned trial judge erred throughout the trial in allowing counsel for the prosecution to make comments and/or speeches in the presence of the jury prejudicial to the appellant on the pretext of summarising evidence and/or addressing the court in relation to issues raised by way of objection or otherwise.’

A large number of transcript references were listed in the notice as supporting this ground. The Court of Appeal, in the reasons for judgment given by Kerr JA, summarised very fully, clearly and expertly the underlying facts of the case. But with reference to this ground the court said that of 79 instances listed in the notice of appeal the attention of the court had been drawn to only seven and only three had been ‘earnestly pursued’.

[19] One of these instances related to the exchange, mentioned above, when Mr Collins asked the appellant about the size of the ASRP fund and Mr Small asked whether Mr Collins was referring to the time when the appellant had taken $500,000 out of the fund or the time when he had taken out $200,000. The court considered Mr Collins’ question unobjectionable, and Mr Small’s intervention unnecessary and made in infelicitous language. But it held that the judge had implicitly ruled against the intervention and that the remarks would not have been likely to have any effect on the jury adverse to the appellant.

[20] The second incident referred to an objection to the tendering of a document by defence counsel with no previous agreement on the admissibility of the document. Of this the court said:

‘Now this type of objection demands from a trial judge prompt and concise ruling in such conclusive language as to deter debate but the ambulatory approach of the learned trial judge often opened the door to

prolonged and semantic debate. It is also illustrative of defence counsel seeing in such instances a challenge to be taken up and to give as good as he got. In so doing, he had eroded any merit that might have existed in this type of complaint. In the instant case, the intervention was reasonable and no undue prejudice would be occasioned thereby.’

[21] The third complaint related to the passage, mentioned above, where Mr Small said it was necessary to shout because the witness had been behaving in this way all along and had been encouraged in doing so by Mr Collins’ observations. The court observed that the evasiveness of the appellant was recognised by counsel on both sides and that Mr Collins’ consistent complaints of being unfairly treated were ‘unfounded and purposeful’.

[22] With particular reference to criticisms of the trial judge the court recorded that reference was made to eight passages but that three only had been pursued. Of the first illustration the court merely observed that it was favourable to the appellant. The second illustration was based on a long and unprompted intervention by Mr Small in the judge’s summing up, including his reference to the appellant giving a dishonest answer, which had culminated in the judge saying to Mr Small:

‘All right, very well. Well you’ve made a point and I’m sure the jury have heard what you said and I leave it for their consideration.’

The Court of Appeal observed:

‘The second (at pp 593-597) was a request that the evidence relating to certain documents should be comprehensively reviewed. The judge entertained a debate by counsel on both sides. References by Crown counsel to the evidence, having regard to the nature of his defence, was of no significant importance. In the end the learned trial judge ended the debate in favour of the defence.’

[23] The Court of Appeal also referred to a third passage in the evidence, not expressly referred to above, where complaint was made of the judge’s comments. The court said:

‘The comments were due to defence counsel persisting with questions introducing new evidence inconsistent with evidence in chief. The indulgence of the trial judge resulted in prolonged debate on a collateral matter that was of dubious relevance to the important issues relating to the three allegedly unauthorised and surreptitious loans and whether or not there was a fraudulent conversion of the moneys obtained thereby. It has not been shown that Crown counsel had erred in his corrective measures or acted to the prejudice of the defence in so doing.’

[24] The court considered criticisms made of the judge’s summing up and made reference to R v Hulusi (1973) 58 Cr App R 378, but concluded that the conduct of the trial judge in this case did not fall within the offending categories described in that authority.

Unfairness: the prosecution response

[25] On behalf of the prosecution Mr Perry submitted that overall the trial of the appellant was fair and his conviction safe. The case against him was very strong. His defence had been conducted in a deliberately obstructive way, which obliged the prosecution to call witnesses to prove matters which turned out to be uncontroversial and which greatly hampered the preparation of documents for the jury. The appellant had been very slow to reveal what his defence was, his explanations had altered as the case progressed and he had never given any convincing explanation of the damning facts proved against him.

[26] Mr Perry accepted that some of the matters relied on by the appellant did not reflect well on Mr Small, that the conduct of both counsel departed from what was to be expected, that he could not defend badgering, bullying or brow-beating by prosecution counsel and that the judge should have exerted himself more than he did to control counsel and the conduct of the case. But he pointed out that the Board had seen no more than a small part of the transcript and that the complaints made should be viewed in the context of a very lengthy trial. The appellant had proved to be an evasive witness from whom it had been unusually difficult to obtain any clear and precise answers. While Mr Small had been very ready to object and intervene, so also had Mr Collins. Many of the observations made by Mr Small had been prompted by Mr Collins’ objections. Many others were directed to Mr Collins’ failure to put matters to prosecution witnesses which should have been put. The appellant had had the advantage of representation by two counsel, neither of whom had at any stage asked for the jury to be discharged or for any argument to be heard in the absence of the jury. Counsel on each side had been fairly matched and each had (as the Court of Appeal put it) given as good as he got. Although points were wrongly made by way of interjection and interpolation, these were matters which could properly have been raised in a closing speech. Overall, the appellant had a fair opportunity to give his evidence and present his account to the jury and the departures from good practice which had occurred were not shown to be of such a nature that the Board should intervene following dismissal of the appellant’s appeal by the Court of Appeal.

Fairness: the Board’s conclusion

[27] The Board sees great force in many of the points made by Mr Perry for the prosecution. The case against the appellant does indeed appear to have been a very strong one, and the explanations proffered by him might well have been properly rejected by a jury. On the material before the Board, there would appear to be grounds for criticising the conduct of the defence and the evidence of the appellant. It would be quite wrong to infer that all the faults in the conduct of this trial lay with the prosecution, which had to overcome a series of unnecessary obstacles. The Board is fully mindful that it has seen a relatively small part of the trial transcript.

[28] While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which

should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.

[29] The crucial issue in the present appeal is whether there were such departures from good practice in the course of the appellant’s trial as to deny him the substance of a fair trial. The Board reluctantly concludes that there were. Prosecuting counsel conducted himself as no minister of justice should conduct himself. The trial judge failed to exert the authority vested in him to control the proceedings and enforce proper standards of behaviour. Regrettably, he allowed himself to be overborne and allowed his antipathy to both the appellant and his counsel to be only too manifest. While none of the appellant’s complaints taken on its own would support a successful appeal, taken together they leave the Board with no choice but to quash the appellant’s convictions. It cannot be sure that the matters of which complaint is made, taken together, did not inhibit the presentation of the defence case and distract the attention of the jury from the crucial issues they had to decide.

[30] The Board regrets that it finds itself in disagreement with the view taken by the Court of Appeal on the principal issue in this appeal. It is apparent from the judgment of the court that it did not give full consideration to a large number of the appellant’s complaints, including a number of the more serious. Thus, as already observed, the Court of Appeal stated with reference to the complaints relating to the conduct of prosecution counsel that of 79 instances listed in the notice of appeal the attention of the court had been drawn to only seven and only three had been ‘earnestly pursued’, and with reference to the criticisms of the trial judge the court stated that reference had been made to eight passages but only three had been pursued. In presenting an appeal based on criticisms of many separate passages in a very lengthy transcript counsel is faced with considerable difficulties in presentation and the court is also faced with difficulties in considering the full ambit of the criticism and the large body of material which supports it. There may have been a degree of misunderstanding between counsel and the court as to the number of instances upon which the appellant was relying but the Board understands that no complaint made by the appellant was abandoned. Therefore, for whatever reason, it is clear that the Court of Appeal did not adequately examine the matters relied on by the appellant. After its fuller and more detailed consideration the Board is satisfied that the decision of the Court of Appeal on this issue cannot stand.

The appellant’s additional grounds

[31] In view of the conclusion already expressed, the appellant’s other grounds of appeal may be shortly reviewed. The first was that the trial judge had failed to give the jury an accurate direction on the central issue of dishonesty. There is force in the criticism that the judge’s direction was confused and over-elaborate. But the issue for the jury’s decision was a short one and it seems very unlikely, taking the summing up as a whole, that the jury could have mistaken the test which was to be applied.

[32] Complaint was made that the judge should have given a good character direction to the jury. Authority makes clear that he should: R v Aziz [1995] 3 LRC 254 and Barrow v State [1998] 4 LRC 517. While the lack of such a direction is material and may provide grounds for quashing a conviction, it need not do so, even where the issue of character is squarely raised by the defence, if the appellate court is satisfied that even with the benefit of a proper direction the jury would inevitably have convicted: see Anderson v R [1971] 3 All ER 768, Berry v R [1992] LRC (Crim) 82 and R v MacDonald (25 March 1999, unreported), CACD. Without a much more detailed inquiry into the facts than has been possible on the hearing of this appeal, the Board cannot form an opinion whether that high standard could have been met on the facts of this case.

[33] The appellant’s complaint against sentence is that a compensation order should not have been made without an inquiry into the means available to him to pay such an order. In making this complaint the appellant is able to rely on a well established principle of sentencing. Where a consecutive sentence is imposed on default of payment, it is intrinsically unfair to make an order which may result in the imprisonment of the offender when he lacks the means to avoid that consequence. Had it been material, the Board would have upheld this complaint.

The order

[34] The Board will humbly advise Her Majesty that the appeal should be allowed and the appellant’s convictions quashed. The Board will make no order as to payment of costs, but would invite the Government of the Cayman Islands to consider increasing the contribution already made towards the appellant’s costs of this appeal. Since the appellant has already served his sentence a retrial would not be appropriate.

Criminal evidence and procedure – Evidence – Hearsay – Expert evidence – Admissibility: R v Hodges and another COURT OF APPEAL (CRIMINAL DIVISION)(United Kingdom)

[2003] EWCA Crim 290, [2003] Crim LR 472, (Transcript: Smith Bernal)

R v Hodges and another
COURT OF APPEAL (CRIMINAL DIVISION)
[2003] EWCA Crim 290, [2003] Crim LR 472, (Transcript: Smith Bernal)
HEARING-DATES: 22 JANUARY 2003
22 JANUARY 2003
CATCHWORDS:
Criminal evidence and procedure – Evidence – Hearsay – Expert evidence – Admissibility.

COUNSEL:
R Grey for the First Appellant; L Wilding for the Second Appellant

S Foster for the Respondent

PANEL: ROSE LJ (V-P), AIKENS, ROYCE JJ

JUDGMENTBY-1: ROSE LJ (V-P)

JUDGMENT-1:
ROSE LJ (V-P) (reading the judgment of the court): [1] On 31 January 2002, after a trial which, astonishingly, lasted 18 days, at Portsmouth Crown Court, these appellants were convicted of conspiracy to supply heroin to others, on count 1 in the indictment. Walker also pleaded guilty to possession of cannabis and to possession of heroin, on counts 2 and 3. On 1 March 2002, they were sentenced by Mr Recorder Mather, by whom the trial had been conducted, in the case of Hodges, to 5 years and in the case of Walker to 6 years’ imprisonment on count 1. Walker was also sentenced on count 2 to 1 weeks’ imprisonment and on count 3, to 2 months’ imprisonment concurrently. They now appeal against conviction by leave of the Single Judge.

[2] The appellants were arrested together in Portsmouth on 6 September 2000, after observations had been kept by the police on Walker’s address in Outram Road, Southsea, on at least nine days between the middle of August and 6 September. The appellants had been observed outside Walker’s house and on nearby streets. The effect of the observation evidence was that, either separately or, sometimes, together, the appellants had had numerous short meetings with a variety of people. Those meetings involved hand contact between the appellants and others which was not, according to the police officers, either in the form of handshakes or, as was suggested, in the form of high, medium or low fives. There was no evidence from the officers that they actually saw drugs being passed.

[3] When Walker was arrested, he had £ 350 on him and a bag containing heroin. He claimed that there were 10 grammes inside. In fact there were 14 grammes, that is half an ounce. He said that it was for his personal use.

[4] Hodges had £ 80 on him. When Walker’s house was searched, there was found a set of scales, with traces of heroin on them, some pieces of plastic bag, metal foil and about one cigarette’s worth of cannabis.

[5] At a first trial the judge, sadly, suddenly died. So the appellants were convicted on a second trial.

[6] The prosecution case against the appellants was based on the manual contacts to which we have referred, the drugs and money found on Walker, expert evidence from Detective Constable Stevens, to which we shall return and, so far as Hodge was concerned, statements which he had made in the course of interview.

[7] The defence of both appellants was that they were not dealers. The manual contacts were merely handshakes or gestures of friendship to acquaintances. It was said on their behalf that the drugs found on Walker were for the personal use of both Walker and Hughes, over the coming week or so. It was said that the expert evidence of Detective Constable Stevens was without foundation, and evidence was given by the defendants which, in part at least, contradicted what Detective Constable Stevens said.

[8] On the tenth day of the trial, during the evidence from the witness-box of Hodge, one of the members of the jury apparently fell asleep. In consequence, the following day, she was discharged from the jury. There was a report of that discharge in a local evening newspaper and, on the day after that, there were further reports of that in national newspapers. By reason of these events, applications were made by the defence, first, that the whole of the jury should be discharged and not just the one juror. Next, in the light of the local newspapers report, that the jury should be discharged. And, finally, following the items in the national newspapers that the whole jury should be discharged. The learned Recorder, as is implicit in the history already recounted, rejected those submissions.

[9] There were two main issues of fact for the jury. First: were drugs being transferred during the manual contacts observed by the police? Secondly: were the drugs found on Walker merely for his and Hodges’ personal use, or were they intended for commercial distribution?

[10] This appeal raises two grounds. First, on behalf of Hodges, Mr Grey, in submissions adopted by Miss Wilding on behalf of Walker, submits that the evidence of Detective Constable Stevens was wrongly admitted by the Recorder, in so far as it dealt with three different matters: first, as to what was the usual method of supplying heroin, namely, in a £ 20 bag; secondly, as to the purchase price of heroin in Portsmouth at the time; and, thirdly, that 14 grammes was more than would have been for personal use alone.

[11] In advancing those submissions Mr Grey, rightly, drew attention to certain authorities. In R v Bryan, (unreported, Court of Appeal (Criminal Division) transcript of 8 November 1984) evidence had been called, in the course of a trial of the appellant for possessing cannabis with intent to supply, that the quantity of cannabis found in his possession was too much for personal use and, in the course of this court’s judgment, as appears from para 3E of the transcript, this was said:

“The point taken is that one of the police officers, as indicated in the summing-up at page 15F, had given some evidence about the quantity of cannabis and the cost of a deal on the street. Apparently he was a man who had some two years’ experience in the drugs squad and was described by the learned Recorder thus: ‘In the course of that time he has gained considerable knowledge of the street drug trade. He said that the usual quantity of cannabis pushed in a street deal (for one deal) is about one to two grams, and this costs about £ 5 for a deal.’ It is said that that evidence was hearsay and that, even if it was as to fact, the police officer was not enough of an expert to give that evidence. Indeed it was not a field of expertise which was recognised and therefore that evidence should not have been admitted and that it was unfair because it was not rebuttable. The view of this court is that police officers with their experience of dealing with these problems, being on the streets and with their knowledge and meeting with those having a drug problem and those pushing the drugs, have a very wide experience and can give evidence of fact of what takes place on many occasions on the streets.”

The court went on to hold that the evidence had been properly admitted.

[12] Mr Grey accepts that, following that decision, for very many years, it has been common in Crown Courts for evidence to be given by police officers, in relation to, in particular, the street value of elicit drugs. But, he submits, the position is now changed by reason of a decision of a differently constituted division of this Court in R v Edwards (unreported, [2001] EWCA Crim 2185, Court of Appeal transcript dated 19 October 2001). That was a case in which the Court upheld the trial Recorder’s decision to exclude evidence proffered on behalf of the prosecution and the defence, when the allegation related to the possession of Ecstasy with intent to supply. It was said, in the course of the judgment, that the material on which the two proffered witnesses relied was “classic hearsay”. Mr Grey submits that, notwithstanding that Bryan was not referred to in Edwards, Edwards should have been followed by the Recorder at trial in the present case and should, indeed, be followed by this court. Therefore, he submits, the evidence of Detective Constable Stevens ought not to have been admitted in the present case.

[13] In support of that submission, he relied upon a ruling given by His Honour Judge Burford QC, in R v Stebbing (1992) 14 Cr App Rep (S) 68 at Southampton Crown Court (transcript of 17 September 2002). In the course of that ruling, the learned judge concluded that he should follow Edwards, it being a more recent decision than Bryan, and he quoted from a judgment of Kerr LJ in Abadom 76 Cr App R 48. It is pertinent to rehearse the citation starting at p 53 in Kerr LJ’s judgment, which is set out from p 9C of the transcript of Judge Burford’s ruling:

“It seems to us that the process of taking account of information stemming from the work of others in the same field is an essential ingredient of the nature of expert evidence. So far as the authorities are concerned, the position can be summarised as follows. First, where an expert relies on the existence or non-existence of some fact which is basic to the question on which he is asked to express his opinion, that fact must be proved by admissible evidence. Secondly, where the existence or non-existence of some fact is in issue, a report made by an expert who is not called by a witness is not admissible as evidence of that fact merely by the production of the report, even though it was made by an expert. These, however, are, in our judgment, the limits of the hearsay rule in relation to evidence of opinion given by experts, both in principle and on the authorities. In other respects their evidence is not subject to the rule against hearsay in the same way as that of witnesses of fact. Once the primary facts on which their opinion is based have been proved by admissible evidence, they are entitled to draw on the work of others as part of the process of arriving at their conclusion . . . It does not seem to us in relation to the reliability of opinion evidence given by experts that they must necessarily limit themselves to drawing on material which has been published in some form. Part of their experience and expertise may well lie in their knowledge of unpublished material and in their evaluation of it.”

Judge Burford then goes onto at 10B of the transcript:

“There is nothing in my judgment in Abadom which is contrary to what was said in Edwards. What Abadom says, and what Edwards reinforces, is that the primary facts must be proved by first-hand evidence but that an expert, those facts having been proved, may then in the exercise of his expertise use other material, whether published or unpublished, in order to form his expert conclusion.”

[14] In the case of Stebbing, Judge Burford ruled inadmissible evidence tendered from a police officer, by no means as experienced as Detective Constable Stevens, and he did so having reviewed the authorities. His judgment also includes this passage at p 19, which we are told has been, to some extent, relied upon in adjacent Crown Courts. It is in these terms:

“What must be done, in my judgment, in order for the prosecution to prove the price of a particular drug on the street is for the officer collating information to set out in a systematic form his sources of those primary facts. He must set out how many undercover officers he has received first-hand evidence from about prices and what the prices are that they have told him. He must set out how many tape recordings of actual deals he has listened to and what the prices disclosed on those tape recordings have been. He must set out how much of his information is from consumer informants and what they have said. He must set out how much of his information is from seller informants and from what they have said, and he must set out which information he has disregarded, either because he has not believed it or because he regards it as a one-off transaction.”

[15] In adopting Mr Grey’s submissions, Miss Wilding, on behalf of Walker, added that her primary objection was to the evidence given by Detective Constable Stevens as to the 14 grammes being more than would have been used personally.

[16] On behalf of the Crown, Mr Foster submits that the learned Recorder was right, having heard evidence on the voir dire from Detective Constable Stevens, to rule that expert evidence could properly be received from him, and to permit the evidence to be called to which we have referred. Mr Foster relies on a passage in the judgment of Chief Justice King, in Bonython [1984] 38 SASR 45, the principal judgment delivered in that case by the South Australia Supreme Court. The learned judge said that, in deciding whether a witness is competent to give evidence there are two questions for judges to decide:

“The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This may be divided into two parts (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.”

[17] Mr Foster sought to distinguish Edwards from the present case and relies, unsurprisingly, upon Bryan. He submits that the jury were entitled to hear evidence on all three matters to which, on behalf of the appellants, exception is taken.

[18] In the present case, he submitted that the relevant primary facts, in relation to which Detective Constable Stevens’ expert evidence was pertinent, was that a 14 gramme bag had been found in the possession of one of the appellants; that observations had been kept over a period of time by police officers on both these appellants, and that there had also been found the scales and other paraphernalia to which we have referred.

[19] The separate ground advanced by Miss Wilding, on behalf of Walker, relates to the Recorder’s refusal to discharge the entire jury initially and his second and third refusals to discharge the jury, following the publication of the articles first in the local newspaper and then in the national newspapers.

[20] The submission which is made by Miss Wilding is that the Recorder failed to give sufficient weight to the risk of prejudice or injustice caused by the press coverage. He was furthermore wrong to conclude that the directions which he gave to the jury, albeit that he said all that could have been said by way of directing the jury to disregard the press reports, were incapable of being sufficient to eliminate the risk of prejudice to the appellant, Walker, in particular, from the press reports. At least one of the reports had referred to the appellants as being heroin dealers. There had been a reference to lawyers arguing about abandonment of the trial and the cost of the trial being some £ 96,000. There had been reference to a defence lawyer complaining about the sleeping juror and to the fact that the juror, immediately before she was discharged, declared unequivocally that she was bored by the proceedings, no doubt by way of explanation as to why she had undoubtedly fallen asleep. There was reference in the newspaper reports, or one of them at least, to her having been “kicked off the case” after a complaint by a defence lawyer, and it was said in the same article that lawyers had tried to “scrap the trial.”

[21] Miss Wilding accepted that the Recorder was right in identifying a number of respects in which the press reporting was inaccurate. But, she submitted, the Recorder, in deciding whether to discharge the jury, gave undue weight to the inaccuracy of the reports.

[22] Reference was made by her to McCann 92 Cr App Rep 239, where the Court of Appeal quashed convictions, after the trial judge had declined to discharge the jury, following highly pertinent and potentially prejudicial remarks by a senior judge and a senior politician, to which wide coverage had been given on the television, which directly bore on an aspect of high materiality in relation to the defendants, namely their failure to give evidence before the jury.

[23] Miss Wilding relied on that authority as showing that it is not always possible to remedy potential prejudice to a jury from media comment by a firm and clear judicial direction. That, she submitted, is particularly so where as in the present case, the matters reported referred to what had taken place in the absence of the jury. The Recorder, she submitted, was too readily satisfied that the impact of the articles was lessoned by their inaccuracy, and he too readily accepted that the jury would not be affected by them.

[24] Mr Foster, on behalf of the Crown, submitted that the appellant’s submission on this ground rested on the proposition that the jurors were told more than they should have been about what had happened in their absence. But he drew attention to the fact that, in due course, the jury deliberated about the guilt or otherwise of these appellants for a period in excess of eight hours, during which they asked pertinent questions about details of the evidence. He submitted that this reinforces his proposition that there was no sign of lack of impartiality, or lack of conscientiousness on the part of the jury. He distinguished McCann, particularly having regard to the fact that, in that case, the trial judge had not seen the television coverage about which complaint was made at the time when he exercised his discretion.

[25] In the present case, on the other hand, the Recorder, submits Mr Foster, was in possession of all the relevant material. Miss Wilding accepts that, in the course of his ruling, the learned Recorder accurately rehearsed the contents of the offending articles.

[26] In turning to our conclusions in relation to these two grounds, it is convenient, first, so far as the challenge to the admissibility of Detective Constable Stevens’ evidence is concerned, to rehearse, as appears from the Recorder’s ruling on 21 January 2002, p 5A, the evidence which the Recorder heard about the officer’s experience:

“Mr Stevens is a drugs officer, not of two [I interpolate that was a reference to the officer in Bryan] but of sixteen or seventeen years’ experience. He told me that for the last sixteen months he has worked as drugs liaison officer for Portsmouth. He has in the past worked undercover and one thing which he does presently do is that he sees every forensic science service drugs report which comes into the Portsmouth Division of the Hampshire Constabulary. He also said during the course of the voir dire that his knowledge of drugs matters comes from training videos, it comes from carrying out observation, speaking both to prisoners and informants, and he obviously works closely with colleagues and has been on a Home Office approved drugs investigation course, albeit some little time ago . . .

As to his knowledge of prices, he gets that from talking both to those who buy and sell and to police officers. He says that he has kept details of prices in this area for over the last twelve years. He says that so far as the kinds of bags are concerned, he knows this from seizures which are made and the bags which are taken in by the police. He has had bags made for him. He said that it was done because he wanted to use one in a lecture that he had to give and he watched it done.

As for the transference and the method of doing it, he says that he has obtained that evidence from observations. He has spoken to those who purchase heroin, and I would remind everybody that he says that he speaks to informants as well as those who have been arrested.”

Then at 6E:

“. . . Mr Stevens is a very experienced drugs officer and on the face of it more than competent to give the evidence that he sets out.”

That, of course, was a reference to the statement, served before the first trial in this case, and therefore a considerable time before the trial at which these appellants were convicted, which contained, among other material, the evidence to which exception is taken in the present appeal. The Recorder, at p 7, said this:

“Mr Stevens in this case has built up an enormous body of knowledge after a long career in the drugs investigation side of Hampshire Constabulary. That he cannot produce individual sources for his knowledge does not invalidate his evidence, in my opinion. He is the embodiment of much of the generally acquired knowledge over many years both of him personally and of the force in general. His experience in general is such, and his answers during the voir dire specifically such, that he satisfies me that he is qualified to be called as an expert on all the matters which he goes through in his statement, apart from those which have been excluded by agreement, notwithstanding that the evidence itself was hearsay and some of it opinion evidence.”

The learned Recorder, as is implicit in what we have said, took the view that he should follow Bryan not Edwards.

[27] In Edwards, the court upheld a ruling by the trial judge excluding evidence from potential witnesses, without medical or toxicological qualification, proffered to show the impact, in terms of developing tolerance or suffering serious harm, on a consumer of Ecstasy. The court did so on the basis that, absent such qualifications, what had been told to the proffered witnesses by drug dealers was classic hearsay which might or might not have been reliable. This case does not, in our judgment, bear on the issue in the present case, namely, whether this drugs officer of very many years’ experience could properly give evidence, derived in part from what he had been told by drug users, as to the street price of heroin and in relation to other matters which we have identified. It is to be noted, as we have said, that the authority of Bryan was not cited to the court in Edwards, still less could it, in consequence, be said to have been over ruled. Indeed, had it been relevant, it would plainly have been binding upon the court in Edwards. So far as the ruling by Judge Burford QC in Stebbing is concerned, it seems to us that the learned judge fell into error in three respects. First, in the passage which we have already cited from his ruling, immediately following the conclusion of his citations from the judgment of Kerr LJ, he misread impact of what Kerr LJ was saying, particularly in the last two sentences of the passages of his judgment which we have specifically rehearsed.

[28] Secondly, Judge Burford followed Edwards, notwithstanding that Bryan had not been cited to the court in that case, and in following Edwards (merely because it was the more recent decision), he fell into error because, as it seems to us, not only was Bryan not to be disregarded in the way that Judge Burford disregarded it, but Edwards was not a pertinent authority on the issue which arose in that case. We add that, in Edwards, had the court had the advantage of considering Kerr LJ’s comments in relation to expert witnesses and hearsay in Abadom, it might not have expressed itself in quite the terms it did.

[29] Thirdly, the matters allegedly identified by Judge Burford, at p 19 of his ruling, as primary facts, were not primary facts – they were sources of primary facts.

[30] In any event, as it seems to us, in the present case, the relevant primary facts were the observations carried out by police officers of the activities of the appellants, the finding of the 14 grammes of heroin in the possession of one of the appellants and the finding of the other paraphernalia in his house.

[31] In our judgment, the evidence of Detective Constable Stevens of facts and opinion was, in the light of his experience, properly admitted. It was the sort of evidence which the judgment of Kerr LJ, in the passage to which we have referred, embraced. He had, in his statement served on the defence given the categories of his sources of information and, of course, any witness who is tendered as an expert must do that. But that does not mean, as was submitted on behalf of the appellants, that it is necessary to call the various people to whom the witness has spoken, before the witness can give expert evidence based upon what they have said.

[32] Detective Constable Stevens’ evidence, accordingly was within the approach identified by Chief Justice King in Bonython. It was, furthermore, evidence which was capable of being challenged in cross-examination and by evidence called on behalf of the defence. No independent evidence other than that from the appellants themselves was called on behalf of the defence. The evidence of Detective Constable Stevens, in relation to value and quantities was unchallenged. Having regard to these matters the ground challenging admissibility of Detective Constable Stevens’ evidence fails.

[33] So far as the ground in relation to the failure to discharge the jury is concerned, it is accepted that the question of whether or not to discharge the jury was entirely one for the judge’s discretion. He had a balancing exercise to carry out. He rehearsed, in his three separate rulings, the matters which he took into consideration. They were relevant matters. None of them was irrelevant. All of them were accurately rehearsed. The weighing of them in the balancing exercise which it was incumbent upon the Recorder to carry out was a matter for him. It appears to us, having read the three separate rulings which we gave on this aspect of the matter, that he approached the question he had to decide conscientiously and fairly. In our judgment, no sustainable criticism of his refusal to discharge the whole jury is made out and, therefore, that ground also fails. These appeals must be dismissed.

DISPOSITION:
Appeals dismissed.

[2003] EWCA Crim 290, (Transcript: Smith Bernal)

Breach of Prosecution’s Duties: R v Roulston , Court of Appeal, Wellington (New Zealand)

Copyright 1976 New Zealand Council of Law Reporting
New Zealand Law Reports
R v Roulston
Court of Appeal, Wellington
[1976] 2 NZLR 644; 1976 NZLR LEXIS 692
8, 9, 10 June, 29 July 1976
DECIDED-DATE: 29 July 1976
CATCHWORDS:
[*1]

Criminal law — Homicide — Murder — Accused under influence of drug — Evidence and proof — Defence of insanity must show probable evidence of disease of mind — Burden of proof lies on Crown to prove every essential element but may rely on presumption that every man has sufficient mental responsibility for his crimes — Judicial discretion to comment on accused’s failure to give evidence — Address by prosecution — What is permissible or impermissible.

HEADNOTES:
The appellant whilst under the influence of the drug lysergide (LSD) shot and killed his friend at close range. There was no dispute that the appellant and fired the gun. The jury returned a verdict of guilty of murder. The appellant appealed on several grounds, the most important of which were that because of his condition he was not responsible for the actus reus part of an unlawful act, that even if he had been guilty of a technical assault he lacked any intent to kill or cause bodily injury, that he was insane, and that the learned judge had wrongly exercised his discretion to comment on the failure of the appellant to give evidence.

Held, dismissing the appeal:

1 It is not sufficient for a defence of insanity to provide [*2] evidence that merely indicated the presence of a disease of the mind of the accused; the evidence must show the probable presence of a diseased mind (see p 648 line 3).

Jayasena v The Queen [1970] AC 618, 624-628; [1970] 1 All ER 219, 221-224, referred to.

2 The ultimate burden of proving every element essential in the crime rests on the Crown which is entitled to rely on the presumption that every man has sufficient mental responsibility for his crimes. To rebut that presumption the defence must adduce evidence from which the contrary may be reasonably inferred (see p 648 line 19).

Bratty v Attormey-General for Northern Ireland [1963] AC 386, 413; [1961] 3 All ER 523, 534-535; R v Cottle [1958] NZLR 999, 1029, and R v Burr [1969] NZLR 736, 743, applied.

3 A judge has a discretion to comment upon the failure of the accused to give evidence, but if he exercises his discretion the comment should be fair and appropriate to the circumstances (see p 650 line 41).

R v Rhodes [1899] 1 QB 77, 83 and R v Bathurst [1968] 2 QB 99; [1968] 1 All ER 1175, referred [*3] to.

4 Whether self-induced intoxication is or is not a defence to crimes of basic intent in New Zealand was expressly left open by the court (see p 653 line 39).

R v Grice [1975] 1 NZLR 760 and R v Majewski [1976] 2 WLR 623; [1976] 2 All ER 142, referred to.

5 Crown counsel must not become an advocate fighting for conviction and it is quite impermissible for him to persuade a jury to a point of view by the introduction of factors of prejudice or emotion, but must present the case adequately having regard to all the circumstances of the case (see p 654 line 33).

NOTES:
Refer 4 Abridgement 351, 354, 207, 150, 148.

CASES-REF-TO:
Other cases mentioned in judgment
Mancini v Director of Public Prosecutions [1942] AC 1; [1941] 3 All ER 272.
R v Mutch [1973] 1 All ER 178.
R v Ryan [1973] 2 NZLR 611.
R v Stuck [1949] NZLR 108.

INTRODUCTION:
Appeal
This was an appeal against conviction for murder.

COUNSEL:
S G Erber and G F Orchard for the appellant.

Solicitor-General R C Savage QC, P W Graham and G E Langham for the Crown.

JUDGMENT-READ: Cur adv vult

JUDGES: Wild CJ, Richmond (P), Woodhouse and Cooke JJ

JUDGMENT BY: WOODHOUSE J.

JUDGMENTS: WOODHOUSE J. (Delivered the judgment of the court). Robert Douglas Roulston was charged [*4] with the murder of one John Beamsley at Ashburton. He was found guilty and now appeals against conviction. The grounds of appeal are that the verdict could not reasonably have been arrived at by the jury; that Roper J had wrongly exercised his discretion to comment on the failure of the appellant to give evidence; that he had misdirected the jury in several respects; that the defence had not been put adequately to the jury in the summing up; and, finally, that there had been unfair conduct on the part of Crown counsel during his final address.

The deceased died when a shotgun was fired at almost point blank range. It is not in dispute that the appellant held and fired the weapon. His defence rested upon claims that at the time he was incapable of rational thought or action by reason of a pre-existing psychiatric disorder or by the ingestion of the drug lysergide (LSD) a few hours before the shooting took place or by both. The defence was put forward on three alternative bases. First, that because he had been in a condition akin to automatism he was not responsible for the actus reus part of any unlawful act and so was entitled to be acquitted. Second, that even if it could  [*5] be said that he had been guilty of a technical assault he had lacked any intent to kill or cause bodily injury known to him to be likely to cause death and so at worst could be guilty only of manslaughter. And, third, on his behalf the defence of insanity was advanced in terms of s 23 of the Crimes Act 1961.

The appellant is a young man who lived with a married sister at Ashburton. He had drifted into the habit of smoking cannabis and experimenting with LSD. Some of his associates were doing the same thing. At about midday on 25 April 1975 he went with Beamsley (the deceased) to join a number of them at a house at Walker Street. There was a supply of LSD on the premises and he took some of it as did another member of the {646} group. Beer was being consumed and cannabis smoked, probably by both Roulston and Beamsley as well as some of the others. There is evidence that on the previous night Beamsley had taken LSD but he did not do so on this occasion. However, he may have been affected to a degree by cannabis or alcohol and there is a suggestion in the evidence that being acquainted with the effects of LSD he made remarks or gestures which were intended to precipitate some [*6] frightening form of hallucination in Roulston’s mind. By mid-afternoon the group had begun to disperse and at about 4.00 pm Roulston returned to his sister’s home where he was seen standing outside the house by his younger brother who thought he was unusually quiet and withdrawn. The brother said in evidence that after a period of time Beamsley arrived looking for Roulston who had still not come inside. However, there is evidence that the two of them did meet there in the house and that Beamsley suggested to Roulston that they should return together to Walker Street. Roulston indicated that he did not wish to do this but at about 4.50 pm they went off together in a car driven by Beamsley. Before long Roulston returned to his sister’s home. She was not present and he went to find her at a neighbour’s place. They came back together and then he asked the younger brother to call a taxi. After making this request he left his brother for a short period, then went out onto the road and was driven away in the taxi which by then had arrived in answer to the call by telephone. The time was then about 5.30 pm.

In the meantime Beamsley had gone by car from the Walker Street house together [*7] with two companions named Perry and Steel. They returned to Walker Street in the car at about 5.50 pm by which time Roulston was standing near a gate at the entrance to the place. As Perry walked past him to go along the path to the house he noticed that Roulston was carrying a sawn-off shotgun. Like a good deal of evidence in this case his description of what he did or saw is rather uncertain because he had been using drugs of one sort or another but he said he thought he had called out some sort of warning concerning the gun and then made himself scarce at the rear of the premises and found his way through neighbouring properties and back onto Walker Street where he again saw Roulston who by this time was walking away from the house. By then Beamsley had approached the gate and had been shot by Roulston at a range of 6 to 12 feet. After falling to the ground he managed to get to the kitchen of the house where he collapsed. An hour later he died at the hospital to which he had been taken by ambulance.

Steel’s evidence is that as he started to walk up the path he heard a bang and turned round to see Beamsley lying on the ground. Beamsley then jumped up and ran towards the house.  [*8] The note of Steel’s evidence then reads:

Q Did you say anything to [Roulston]? A Yes I think I said, “You’ve shot him, what did you shoot him for,” or something like that. I could have said something more to him I can’t remember. I think I asked him why. I can’t remember what he said. He said something like, “Don’t worry Nev. I’m not going to shoot you”.

Q He said that quite clearly to you or was it hard to follow? A No quite clearly. I cxould have asked him why he had shot him I can’t remember. As to any discussion in the street about the events which happened in the kitchen, I think he said something about he was having a hard time.

Steel went on to say that he put out his hand to try to take the gun from Roulston who would not give it to him. Roulston then walked away down Walker Street.

{647} Not long after leaving Steel, Roulston appeared at the home of another friend named Edward and said “I think I’ve just shot Jug [Beamsley]“. Roulston was still carrying the shotgun and Edward took it and unloaded it without any resistance or comment by Roulston. According to Edward he then hid the weapon beneath the house and returned to Roulston who had been taken inside  [*9] by others. Edward said in evidence that he was uncertain whether to accept Roulston’s statement about Beamsley as true, that he felt shocked and wanted to think clearly what to do and in the end, for the next few hours, he and a companion drove Roulston to Christchurch looking for advice and help in regard to the matter. They finally returned Roulston to his home in Ashburton at about 11.30 pm and the police took him into custody three hours later. When interviewed by a detective sergeant Roulston answered questions about the shooting to the effect that he had walked to the gate where he saw Beamsley; that he thought he had to shoot or he would go mad and be shot; and “that it had to happen”.

The first ground of appeal is that the verdict was one that a reasonable jury, properly directed, could not have arrived at. The argument depends entirely upon an analysis of the considerable volume of psychiatric evidence given by five doctors (three called on behalf of the appellant and two by the Crown) because otherwise the facts surrounding the shooting would certainly prompt the clear inferece that Roulston intended to kill or to cause bodily injury known by him to be likely to cause [*10] death and in circumstances where he was reckless as to whether death ensued or not. The weapon used was a sawn-off shotgun. He had obtained it only a short time earlier from his home together with several rounds of ammunition. Then, at the critical time, he appears to have allowed Perry and Steel to go past him before using the weapon upon Beamsley who was shot at a range of 6 to 12 feet. He then made his way to the place occupied by his friend Edward within minutes of the shooting and said that he thought he had shot Beamsley. At 3.15 am after he had been taken into custody he gave explanations to the police which would enable the jury to conclude that nine hours earlier he had appreciated what he had been doing and that the shot had been fired not merely with deliberation but with a murderous intent.

The analysis of the medical evidence was undertaken on the appellant’s behalf in order to demonstrate that it must have raised a reasonable doubt as to whether he had been capable at the time of the shooting of forming any criminal intention. And the argument included a basic assumption that if by reason of some degree of a disease of the mind he may have been incapable of understanding [*11] the nature and quality of what he was doing then it followed automatically that the Crown had failed to discharge the onus of proving the essential ingredient of mens rea. The validity of that assumption depends upon the outcome of a separate ground of appeal which relates to the summing up — that is, that the judge was wrong in directing the jury that the onus of proof in relation to the defence of insanity lay upon the accused. It is convenient to deal with the issue at this point.

On the basis that the onus always rests upon the Crown to prove criminal intent counsel contended in effect that it was paradoxical and even incongruous that contemporaneously an accused person (in terms of what counsel described as the “orthodox” view) should be expected to demonstrate affirmatively that by reason of disease of the mind he had not been capable at the relevant time of understanding either the physical or moral quality of what he was doing. In his submission the situation created a logical difficulty which could not be resolved unless the onus upon the accused to answer the presumption of sanity referred to in s 23(1) of the {648} Crimes Act could be met simply by providing evidence [*12] of the existence of a disease of the mind; and without some further need to prove that the disease had produced an incapacity of the type and degree outlined in s 23(2). As a gloss upon the general submission he argued as well that it was not necessary for the accused to show the probable presence of a disease of the mind: it would be enough to provide evidence that merely indicated such a disease.

Firt, we do not accept the gloss. Counsel described it as an “evidential burden” upon the accused. It was, he said, a burden limited to the need to lay some foundation for the defence of insanity but when that had been done the general burden of proving the charge would require the Crown to exclude it beyond reasonable doubt. It is the sort of argument put forward (albeit in a different context) in Jayasena v The Queen [1970] AC 618; [1970] 1 All ER 219; and it was rejected for the reasons given by Lord Devlin (ibid, 624-626; 221-224) which are equally applicable and compelling in the present case.

The remaining part of the general submission is concerned with the apparent paradox that co-existent with the onus on the Crown to prove the criminal intent going [*13] with the actus reus the accused, relying on the insanity defence, must prove an incapacity to understand the nature and quality of the same act. It appears to be a variant of a submission advanced in Bratty v Attorney-General for Northern Ireland [1963] AC 386; [1961] 3 All ER 523, and was answered by Lord Denning in the following terms:

“. . . I think that the difficulty is to be resolved by remembering that, whilst the ultimate burden rests on the Crown of proving every element essential in the crime, nevertheless in order to prove that the act was a voluntary act, the Crown is entitled to rely on the presumption that every man has sufficient mental capacity to be responsible for his crime: and that if the defence wish to displace that presumption they must give some evidence from which the contrary may reasonably be inferred” (ibid, 413; 534-535).

The same point is referred to by North J in R v Cottle [1958] NZLR 999 where mixed questions arose as to insanity and automatism. He said:

“. . . I think the trial Judge was obliged also to deal with the case on the assumption that the jury might be of opinion that it had not been shown that the prisoner [*14] was suffering from a disease of the mind, for this in the final result is within the province of the jury. In the ordinary run of cases, no difficulty would be experienced for, if the jury rejected the defence of insanity, a verdict of guilty would be likely to be given. This for the reason that the jury would only go on to consider the special defence, if it were already convinced that the Crown had proved to its complete satisfaction that the act had been committed by the prisoner and — if he was same — in circumstances which compelled the conclusion that the act was deliberate and intentional” (ibid, 1029).

In the later case of R v Burr [1969] NZLR 736 he returned to the matter. He said:

“It is therefore desirable, I think, to begin by looking at the way the law views responsibility for crime in a general way. As I see the matter, in the interests of society, the law has found it necessary to adopt a pragmatic approach to responsibility for crime. Some doctors who no doubt have a far more intimate knowledge of the workings of the mind take a different and broader view, but our law proceeds on the basis that everyone is presumed to be sane until the contrary is shown and  [*15] accordingly a man is presumed to intend the natural and probable consequences of his acts. Now, in my opinion, it is only in that way that {649} the criminal law could ever be satisfactorily administered from the point of view of society” (ibid, 743).

It may well be that when the evidence in a case is considered as a whole the initial presumption of sanity will fail to lead to a clear inference of mens rea and in that event the Crown will have failed at that first stage to take the case to the point when consideration of the defence of insanity will need to arise. But once, sanity being presumed, the necessary intent is clearly to be inferred, then the second stage of the inquiry will be whether the accused has shown in terms of s 23(2) of the Crimes Act that by reason of disease of the mind he did not appreciate either the physical or the moral quality of his acts. If he fails to show that this is more likely than not then the provisional presumption of sanity will not have been displaced, nor the consequential inference of capacity and intention.

Before leaving the general submissions concerning insanity it is necessary to mention two minor matters. Roper J’s explanation of [*16] the law was introduced by a brief statement that at this point in the case the accused said in effect, “Well, I fired the gun that killed Beamsley, I acted intentionally but I was insane and therefore not accountable for my actions in law”. The objection is taken that no concession had been made at any stage of the case or for any purpose that the appellant had acted intentionally, and the statement by the judge was therefore misleading and contributed to a miscarriage of justice. We do not agree. It was obviously intended as a brief prefatory remark in order that the jury would better be able to understand what he was about to say concerning the law and we are satisfied that it would have been understood in that sense. The other point relates to examples given by the judge to the jury of persons affected by a disease of the mind in the sense outlined in s 23(2) of the Crimes Act. He was attempting to draw the jury’s attention to the distinction between an understanding of the nature and quality of one’s actions, on the one hand, and their moral quality, on the other. In essence the criticism is that the graphic manifestations of insanity in the examples provided by the judge [*17] were so far removed from the symptoms of insanity relied upon in the present case as to suggest there could be nothing in the defence. We are unable to accept this criticism. On the contrary, we think that Roper J gave a careful and completely lucid explanation of the separate limbs of s 23(2).

We return to the first ground of appeal and to the medical evidence. As to this evidence it is certainly clear enough that in the opinion of some of the doctors Roulston at the relevant times was insane in the sense defined by s 23; and there is other evidence that his perception and understanding were gravely distorted, either by a psychiatric disorder or by the LSD he had taken or both. But the evaluation of all the medical evidence was fairly and squarely within the province of the jury and the two doctors called in rebuttal by the Crown were of the opinion that he was not insane in the criminal sense. Accordingly, we are satisfied that the jury was justified in rejecting the defence of insanity.

There remains the issue as to whether the appellant was incapable of forming any criminal intent or whether what he did was done in a state of automatism. As to this there is nothing to suggest [*18] that the jury excluded any part of the medical evidence in considering the issues raised or that they failed to act upon the direction given them that, insanity apart, the onus lay upon the Crown to prove all the ingredients of the crime, including, of course, intent. In our view, the opinions expressed upon the point by Dr Savage and in particular by Dr Hewland justified the jury’s conclusion that the appellant at the time of the shooting knew what he was doing, that what he was doing was wrong and that he was acting with conscious volition. There {650} was some criticism of the opinions reached by these two doctors upon the basis that their examinations of Roulston had been somewhat limited. It was said, too, that certain evidence of the doctors called on his behalf had not been put to them in any direct way so that their own opinion could have been given upon it. But the significance to be attached to criticism of this sort is entirely for the jury. In our opinion, the verdict of murder was open on the evidence and this ground of appeal must fail.

The second ground of appeal is concerned with a brief comment made by Roper J concerning the fact that the appellant was not  [*19] called to give evidence on his own behalf. He said:

“. . . there is no onus on an accused to prove anything apart from the matter of insanity and there is certainly no obligation upon him to give evidence. However, I feel justified in this case in expressing the view that it might have been of assistance in your inquiry, which is primarily one into his state of mind at a particular time, if you had had the opportunity to see its workings at first hand. I stress, however, that an accused is perfectly entitled to sit silent and many accused persons do.”

Those three sentences appear at the end of a passage in the summing up where the judge had referred to the alternative verdicts that were open to the jury, including insanity and automatism, and the state of mind that was referable in each situation. Having done that the comment concerning the failure to give evidence was immediately prefaced by a statement:

“We are dealing here with an incident which involved two main participants, Beamsley and the accused Roulston. There is no dispute that Roulston’s hand held the gun when Beamsley was short. Beamsley is dead, and the whole of this case has developted into an inquiry as to Roulston’s [*20] state of mind at the time of that incident. Now his actions, words, thoughts on that fatal day have come to you through others, much of it in a sense filtered through a psychiatric screen.”

Concerning this part of the summing up it was argued that the inference that the jury would draw from the judge’s remarks was that there might not be any real substance in the defences of the accused referable to his state of mind; that it was unreasonable to expect an accused person to give evidence where a defence of insanity had been put forward; that the judge failed to advert to the reasons that could justify the failure to give evidence; and that no real explanation was given as to the use the jury could make of the failure to give evidence taking into account the various defences that had been put forward.

When the exercise of a judicial discretion is under review the issue is not, of course, whether one would necessarily have exercised the discretion in the same way or at all. And in cases where a comment by the judge upon a failure to give evidence is justified the general principle was laid down as long ago as 1898 by Lord Russell of Killowen C J in R v Rhodes [1899] 1 QB 77 [*21] when he said:

“The nature and degree of such comment must rest entirely in the discretion of the judge who tries the case; and it is impossible to lay down any rule as to the cases in which he ought or ought not to comment on the failure of the prisoner to give evidence, or as to what those comments should be” (ibid, 83).

Of course the comment should be fair and it should be appropriate to the circumstances of the case. In R v Bathurst [1968] 2 QB 99; [1968] 1 All ER 1175 (relied upon by the appellant) a defence of diminished responsibility was relied upon by the accused in order to reduce murder to manslaughter. A strong comment had been made by the judge concerning the failure of the accused to give evidence and Lord Parker C J drew attention to the obvious {651} absurdity of expecting that an accused person should give evidence in such a case in order to demonstrate that he was not altogether sane.

The situation here is very different. An important part of the defence was that the appellant acted automatically, in some sort of trance, and so had been unable to relate his mind to his actions. Moreover, his counsel tendered [*22] a great deal of hearsay evidence from the psychiatrists which dealt with the appellant’s descriptions to them of what had taken place at the time of the shooting, and why. Although this evidence was put forward in order to provide a foundation for their professional opinions about his state of mind it also amounted to an important exclupatory account by him of what happened, but provided at second hand through the doctors. In the circumstances it was not unreasonable for Roper J to conclude that the jury may have derived some assistance if they had been able to consider the material from Roulston’s own lips. The acceptance on the appellant’s behalf that he had shot Beamsley with a sawn-off shotgun at point black range followed by the medical evidence designed to show an absence of conscious volition comes close to the situation of “confession and avoidance”, mentioned by Lawton L J in R v Mutch [1973] 1 All ER 178, 181. The factual circumstances of what could be regarded as a deliberate shooting were not in question but the defence of automatism very much was; and the appellant’s explanations to the doctors were an essential part of that defence. Those [*23] explanations were used as a basis for professional opinions but a great deal of the material was susceptible of lay evaluation in a fair and balanced way by the jury and certainly it was likely to have some influence upon the decisions they had to make. Roper J seems to have considered that in the circumstances it deserved some sort of confirmation by teh appellant in evidence. We think that was a justified attitude and also that the jury was well able to appreciate that the comment he made was directed to the automatism defence. It is right to add that considered in terms of likely impact it would be difficult to find a comment upon the failure of an accused person to give evidence put so mildly or with such fair restraint.

The next general ground of appeal is that there was an inadequate direction in relation to manslaughter. It was accepted by counsel that the jury was properly directed concerning mansaughter resulting from an assault. He contende,d however, that it was necessary for the judge to go on to direct them that by reason of s 156 of the Crimes Act, or s 16 of the Arms Act 1958, the negligent use of a firearm could be unlawful and that if the death was caused by  [*24] such negligence that too would lead to a verdict of manslaughter. In this regard there was no suggestion that the weapon was fired accidentally. The argument rested on a theory that although Roulston intended to fire the shot he may not have intended to fire at Beamsley but merely to fire near to him. It was said that the failure to canvass this theory may have led the jury to ignore manslaughter as a genuine alternative to murder and that there was an obligation upon Roper J to open up this alternative version of what may have happened although counsel had not raised the question at any stage of the trial. We were referred to a number of cases including mancini v Director of Public Prosecutions [1942] AC 1, 8; [1941] 3 All ER 272, 276-277, and R v Stuck [1949] NZLR 108.

It is true, of course, that a judge is oblidged to deal with a defence which is properly open on the evidence although it may not have been referred to by counsel for the accused. But we are satisfied that the principle does not support the present submission in the circumstances of this case. The evidence does not readily lend itself to the rather strained inference that a shot fired [*25] with deliberation at a range of 6 to 12 feet was intended to pass by rather than hit the deceased. In any event, Roper J himself did not dismiss as {652} fanciful an inference that the weapon could have been fired intentionally at Beamsley yet without the added intention to kill. What he said upon the subject needs to be repeated. At the conclusion of a review of the medical evidence he interpreted the opinions of the two doctors called by the Crown on the basis that they thought Rouslton had possessed some ability to reason although not completely.

He then added:

“You might well conclude from teh combined evidence that they gave that their conclusion was that while the accused did not have the intent to kill because of his disordered mind, he did intend to shoot, that is the intentional application of force.”

Then, when dealing directly with manslaughter, he said:

“Now the next defence to be considered here is that while the accused may have acted voluntarily and his actions were subject to the exercise of his will, he was so affected by the drug LSD that he was incapable of forming the intents necessary for the crime of murder. Or that he did not in fact form them. That is,  [*26] the intent to kill and the intent to kill recklessly. He fired intentionally but because of the disordered state of his mind at that time he could not or did not form the necessary intent.

“. . . However, you could well have the situation where you were satisfied that an accused had killed by an unlawful act, that is the intentional application of force, intending to fire the gun, but he left in reasonable doubt on all the evidence, including the evidence of drug taking and its effects, that because of that he was incapable of forming the intent to kill or kill recklessly or did not in fact form either of those intentions.”

A little later in the summing up he referred to the apparent lack of motive for the shooting and after remarking that there was no obligation on the Crown to prove motive he added:

“. . . of course as a matter of common sense the apparent lack of it, if there is an apparent lack, must be a consideration to be taken into account particularly on this question of the intent to kill or kill recklessly.”

In this area of the summing up he concluded by saying:

“If you are satisfied beyond reasonable doubt that the accused, when he fired at Beamsley did so intentionally,  [*27] for whatever reason, but he did it intentionally, his will going to the act, doing it voluntarily whatever he may have intended by it, but are left with a reasonable doubt as to whether at that time he had the intent to kill or kill recklessly because of his state, your verdict would be not guilty of murder but guilty of manslaughter.”

It is perfectly plain from those extracts from the summing up that the issue of manslaughter in this case was left as wide open as it could possibly be. Furthermore, Roper J himself clearly regarded the defence as one that required and deserved careful consideration; and by summarising the medical evidence given for the Crown in the way that he did he came close to inviting the jury to regard the opinions of those two doctors as leading to a manslaughter verdict. It should be appreciated, we think, that a new trial was ordered in R v Stuck [1949] NZLR 108 because the hypothesis suggested in the summing up for a verdict of manslaughter was limited to provocation, something that was not suggested by the evidence, while some foundation in accused’s statement for the accidental firing of the weapon by reason of its negligent use was ignored as a basis [*28] for a manslaughter verdict. It is certainly unnecessary, and often it would be undesirable, for a judge who had carefully {653} explained some credible basis for a manslaughter verdict to then proceed to examine other speculative alternatives that had not been raised at any time during the trial. In the present case we are clearly of the opinion that Roper J was quite right to leave the matter where he did.

An associated criticism of the summing up was directed to an answer he gave to a question asked by the jury after they had retired to consider their verdict. The question reads:

“If he does not understand the implication of his actions due to the ingestion of LSD is this a defence against murder, that is, does it make it manslaughter?”

The judge confined his answer to a discussion of the intent needed to justify a verdict of murder and he did not repeat the explanations he had given earlier that if Roulston had been incapable of forming the necessary intent involved in the concept of assault that he would be entitled to an acquittal. The criticism is related to that last point and the short answer to it is that the jury could not have been misled because by their verdict  [*29] of murder it is clear that the question was directed to the issue as to whether they should reduce murder to manslaughter and not whether they could or should go to an acquittal.

There are two other minor criticisms of the directions given to the jury. They relate to the discussion of the defence of lack of voluntary action. On the one hand there is a complaint that Roper J failed to remind the jury sufficiently of the medical evidence in this part of the case. As to this he had discussed the various implications arising fromt eh evidence when dealing with insanity and, in our opinion, it was quite unnecessary and may have been confusing for him to reiterate what he had said to the jury so recently concerning these matters. The other point concerns the judge’s treatment of a contention that Roulston had been so affected by LSD as to regard himself as no more than a “spectator” of what occurred at the time of the shooting. We think there is nothing in this matter. Nor can we find any justification for a more general submission that there was a failure to put the defence adequately to teh jury. In this regard the judge must, of course, put the defence forward in a fair and balanced [*30] fashion but there is no need for him to refer to every fine facet of the case: see R v Ryan [1973] 2 NZLR 611. We are satisfied that here Roper J provided the jury with an admirably coherent and comprehensive survey of the various defences that had been raised on the appellant’s behalf and in no sense could anything further reasonably have been required of him.

Before leaving the summing up it is necessary to mention a matter raised on behalf of the Crown. In R v Grice [1975] 1 NZLR 760, this court, in the light of certain Australian decisions, left open the question whether (apart from teh defence of insanity) drunkenness or durg-taking can do more than reduce murder to manslaughter. Among other things it was indicated that criminal negligence had not been in issue at the trial in that case. Since then the House of Lords has held in R v Majewski [1976] 2 WLR 623; [1976] 2 All ER 142 that self-induced intoxication is not a defence to crimes of basic intent. In the present case Roper J took a different view. He directed the jury to the effect that even to prove manslaughter the Crown had to prove that the accused fired at  [*31] Beamsley intentonally; and that this burden would not be discharged if for any reason the jury were left in reasonable doubt about whether the accused’s action in firing was voluntary. That is to say, the summing up proceeded on the basis that self-induced intoxication could be a defence to manslaughter. On the argument of the appeal the Solicitor-General requested that this question and the whole question of the applicability or otherwise of Majewski’s case in New Zealand be kept open. By arrangement {654} between counsel no argument was submitted on these questions. They must still be regarded as open.

The final issue raises a different question. It involves a complaint that Crown counsel at the trial exceeded the bounds of propriety in his final address in that he did not put the case fairly or completely to the jury (cf R v Thomas (No 2) [1974] 1 NZLR 658); and in general that he used emotive and inflammatory language in order to persuade the jury to a point of view which was not justified by the evidence. It is a complaint that fortunately is rarely levelled at the conduct of prosecuting counsel in this country. In the Thomas case the Crown Prosecutor was criticised on [*32] the basis that he had made certain unreasonable submissions upon the evidence but, after pointing out that the interests of justice did not involve merely the interests of the accused concerned, this court stated that it was satisfied that nothing improper had taken place. On the other hand it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in 10 Halsbury’s Laws of England (3rd ed) para 761 that prosecuting counsel “should regard themselves as ministers of justice assisting in its administration” ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin’s remarks in Trial by Jury (1966 ed) 122-123:

“. . . in some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution’s [*33] case is not adequatly presented, and counsel, frightened of being accused of an excess of fervour, tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge.”

The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial. With those considerations in mind we turn to the extracts from the agreed transcript of the address which are the subject-matter of the complaint. At an early stage of the address counsel said:

“Yet the defence says that Roulston should be completely acquitted, that is, to leave the court without [*34] conviction — a free man. Can society stand for that — for a man being shot in such brutality in such circumstances. That is one of the tests which you will have to apply when dealing with this case.”

Then, having referred to the appellant’s movements after leaving by taxi from his sister’s home he said:

“His [Roulston's] movments for the next half hour or more are not covered by the evidence, but you may feel that it would be a fair inference to suggest that he remained at the back of 103 Walker Street until about five to six in ambush with his assassin’s short range gun and that he waited for his victim to come along.”

{655} A little later there are comments to the effect that Steel had spoken to the accused:

“. . . alleging that he said to the accused that the accused had shot Jug, why did he do it and that the accused said something to him quite clearly like ‘Don’t worry Nev I’m not going to shoot you'”, and that:

“. . . it is the Crown’s case that, on this evidence, you could conclude that the accused had deliberately and selectively with cold callous indifference shot and killed his friend Beamsley. . .”.

There is a further complaint that Crown counsel suggested to the [*35] jury that “when the local doctor examined [Roulston at the police station] he had not had time to concoct a story that might assist his defence later”, and that the jury:

“. . . should be on the lookout for a measure of cunning on the part of this accused, on his state of mind immediately after the shooting, before he had these many visitations by specialists and before he had had time to think and work out with the aid of matters he could recollect later some form of defence involving his mental state.”

A final complaint is that although Crown counsel knew that the judge had already ruled that the defence of lack of voluntary action or automatism consequent upon self-induced intoxication would be left to the jury (so as to permit the jury to return a verdict of “not guilty”) counsel said:

“The Crown submits that the mere taking of LSD should not be accepted as an absolute defence for murder nor for any other criminal offence . . . . If it were a complete defence, a man who had partaken of the drug could come out of a house, and say rape a woman, criminally assault a child or drive a car and in that way kill someone else and could escape scot-free. . . . Assuming that the driver [*36] of a car affected by LSD felt himself to be a pilot of a 747, tried to take off and crashed headlong into a vehicle approaching from the opposite direction, are these persons who voluntary [sic] take LSD to escape any penalty to go scot-free for the crimes that they commit while under the influenences of drugs.”

Those various remarks were made in the course of an address to the jury which covered a good deal of territory and no doubt occupied some significant period of time, so they need to be evaluated within that much wider context. That is what we have attempted to do. But having made all proper allowance for that factor we find it necessary to describe some of the language used and the general implication that can be drawn from some of those extracts as prejudicial and unfair. A sawn-off shotgun is likely to be regarded as a deadly enough weapon without describing it in terms of an assassin’s short range gun; and the degree of cold calculation by Roulston which the jury was invited to associate with his actions received no support even from the doctors called by the prosecution itself. And if the final comments were made with foreknowledge of the judge’s direction to the jury [*37] upon the point, they were inexcusable. Even in a civil action no counsel is entitled to attempt to mitigate in advance the effect of a direction in law that he knows will be given by the judge. His remedy lies elsewhere. Moreover, whatever counsel may have wished to convey to the jury the metaphorical licence he employed was far-fetched and remote from both the facts of this case and the law applicable to them.

In the circumstances it has been necessary to consider with particular care the possible effect of the remarks — Whether they may have improperly influenced the jury. Finally, after taking into account the rest of the address and the whole course of the trial we are left satisfied that in the end the real issues in the case were kept in balance. Our reasons are these:

First, the transcript of evidence demonstrates that despite the {656} extravagant language he employed at the end of the case counsel’s conduct during the trial itself was entirely fair.

Second, but for the extracts we have taken from the final address the address itself was a firm but reasoned and entirely professional review of the case — as we would have expected. It needs to be kept in mind as well [*38] that of necessity we have had to repeat in close sequence the various extracts from counsel’s address. In quite a long address they were, of course, isolated from one another. Set out seriatim as they appear in this judgment we are satisfied that they have much greater force and impact than could have been the case on the occasion.

Third, we were told by Mr Erber from the bar that during his own final address (which of course immediately followed upon that of prosecuting counsel) he did what he could in a positive way to redress the damage that he felt had been done to the appellant.

Fourth, there is the supervision of the trial that was exercised on the occasion by Roper J. Mr Erber submitted that the judge should have prevented prosecuting counsel from continuing to deal with the issues as he did and should have expressly told the jury in his summing up that they should not be influenced by the remarks we have quoted. The fact is the judge did not interrupt. He may have felt at the time that the matter had not been taken to a level that warranted action by him. It may be that he felt that what had been said could not be erased and might be given an undesirable emphasis were [*39] he to interfere. But what he did do was to provide for the jury a clear and dispassionate review of the whole case which we think at the very outset succeeded in bringing the jury to recognise the importance of putting aside any sort of moral judgment based upon emotional considerations. He then said:

“That brings me to one of the most important matters I must mention and both counsel have stressed it, that you must do your utmost not to be influenced by any feelings of disgust, sympathy, ill-will or abhorrence about the drug question. No emotion whatsoever whether directed to the accused or anyone else connected with this trial. You have to give the matter calm and fair-minded consideration.

“It is probably almost impossible for you to imagine yourself in the unfortunate position of this accused, but in the course of your deliberations it might not be a bad thing to consider yourself in that situation and then give the case the thoughtful and careful consideration you would want others to give your case.”

He added:

“I think there is a good deal of force in what Mr Erber said that we are dealing here with an alleged offence said to have been committed under the effect of an hallucinatory [*40] drug. . .”.

Earlier in this judgment we have referred to other passages from the summing up that were not unsympathetic to the arguments advanced on the appellant’s behalf and when it is read as a whole we feel satisfied that the remarks made by the Crown counsel were left in proper perspective.

In the result, although some of the remarks which we have quoted were unfair and objectionable when taken by themselves, we are satisfied nevertheless that there is no real risk that they wrongly influenced the verdict and for that reason they did not result in an unfair trial.

We have now dealt with the various matters raised in support of the appeal. For the reasons we have given the appeal is dismissed.

ORDER:
Appeal dismissed.

SOLICITORS:
Solicitors for the Crown: Crown Law Office (Wellington). #020509M001USPENK#

Criminal law — Perjury — Mens rea — Witness wilfully making statement in judicial proceeding knowing it to be false — Statement material in that proceeding — Material — What knowledge prosecution must prove — Whether prosecution need prove that witness knew or believed the statement was ‘material in that proceeding’ — Perjury Act 1911, s 1(1 )(6 ): R v Millward COURT OF APPEAL, CRIMINAL DIVISION (United Kingdom) (Very Good Case for Defendant Who Got Enough Documentation of Proofs)

[1985] 1 QB 519, [1985] 1 All ER 859, [1985] 2 WLR 532, 80 Cr App Rep 280, 149 JP 545

R v Millward
COURT OF APPEAL, CRIMINAL DIVISION
[1985] 1 QB 519, [1985] 1 All ER 859, [1985] 2 WLR 532, 80 Cr App Rep 280, 149 JP 545
HEARING-DATES: 14, 25 JANUARY 1985
25 January 1985
CATCHWORDS:
Criminal law — Perjury — Mens rea — Witness wilfully making statement in judicial proceeding knowing it to be false — Statement material in that proceeding — Material — What knowledge prosecution must prove — Whether prosecution need prove that witness knew or believed the statement was ‘material in that proceeding’ — Perjury Act 1911, s 1(1 )(6 ).

HEADNOTE:
In order to establish that a person charged with perjury, contrary to s 1(1) of the Perjury Act 1911, has the requisite mens rea for the commission of the offence, the prosecution merely has to show that in the judicial proceeding in which he was a witness he wilfully (i e deliberately and not inadvertently or by mistake) made on oath a statement which he knew to be false or did not believe to be true.  The prosecution does not have to show that he knew or believed the statement to be material in that proceeding, for the materiality of the statement is a matter which, by virtue of s 1(6), is to be decided objectively by the judge (see p 861 j, p 862 a b and d to h and p 863 f g, post).
A false statement may be considered ‘material’ within the meaning of s 1(1) of the 1911 Act if it might have affected the outcome of the proceedings (see p 863 a to f, post) R v Lavey (1850) 3 Car & Kir 26 applied R v Sweet-Escott (1971) 55 Cr App R 316 considered.

NOTES:
For the meaning of perjury, and the materiality of a statement, see 11 Halsbury’s Laws (4th edn) paras 938, 941, and for cases on the subject, see 15 Digest (Reissue) 945, 952–955, 8150–8154, 8206–8243.

For the Perjury Act 1911, s 1, see 8 Halsbury’s Statutes (3rd edn) 241.

CASES-REF-TO:

R v Holden (1872) 12 Cox CC 166, Assizes.
R v Lavey (1850) 3 Car & Kir 26, 175 ER 448, NP.
R v Murray (1858) 1 F & F 80, 175 ER 635, NP.
R v Sweet-Escott (1971) 55 Cr App R 316, Assizes.

CASES-CITED:

R v Ryan (1914) 10 Cr App R 4, CCA.

INTRODUCTION:
Appeal

On 24 November 1983 in the Crown Court at Stafford before Drake J and a jury the appellant, Neil Frederick Millward pleaded not guilty to a charge of perjury, contrary to s 1(1) of the Perjury Act 1911.  He admitted that he had made certain false statements while giving evidence on oath as a principal witness in a judicial proceeding, but submitted that he could not be guilty of perjury (i) because the false statements were not made with the mens rea necessary for the commission of the offence, and (ii) because, in any event, the statements were not, within the meaning of s 1(1), ‘material’ to the proceedings.  Drake J rejected both submissions.  The appellant thereupon changed his plea to one of guilty.  He was sentenced to three months’ imprisonment, suspended for one year.  He appealed against conviction on the ground that the judge had erred in rejecting both his submissions.  The facts are set out in the judgment of the court.

COUNSEL:
Richard Tucker QC and Simon Brown (both assigned by the Registrar of Criminal Appeals) for the appellant.

Peter Stretton for the Crown.

JUDGMENT-READ:
Cur adv vult

25 January.  The following judgment of the court was delivered.

PANEL: LORD LANE CJ, RUSSELL AND KENNEDY JJ

JUDGMENTBY-1: LORD LANE CJ

JUDGMENT-1:
LORD LANE CJ.  In November 1983 in the Crown Court at Stafford before Drake J and a jury the appellant, who was at all material times a police officer, was charged with perjury.  He pleaded not guilty.  At the close of the prosecution case submissions were made by counsel on his behalf.  The judge rejected those submissions.  The effect of that rejection was to render the appellant’s proposed defence ineffective.  He was thereupon advised, and correctly advised, to change his plea to guilty, which he did.
He was sentenced to three months’ imprisonment suspended for 12 months and ordered to pay £500 towards his legal aid costs.  The only issue in this appeal is whether the judge was correct in law in the rulings which he made.
The facts were as follows.  On 10 June 1982 the appellant had reason to stop a car containing two Indian men.  He considered that certain offences had been committed by the driver.  He knew the driver by sight but not by name.  The driver gave his name as Parshan Singh.  The appellant asked the driver for his driving licence and other documents, but these were not forthcoming and accordingly the appellant served Form HORT 1 on the driver requiring him to produce the necessary documents at the police station.  These documents relating to Parshan Singh (hereinafter called Parshan) were produced by Parshan at the police station in due course.
On 14 July the appellant saw Parshan at the police station and told him that he, the appellant, was satisfied that Manjit Singh (hereinafter called Manjit) and not Parshan had been the driver of the car on 10 June and that Manjit had given a false name at the scene (presumably because he held no proper driving licence) Parshan had accordingly also been guilty of deception when he produced the documents in answer to the HORT 1 and when he claimed to have been the driver.
On 10 January 1983 Parshan and Manjit duly appeared at Walsall Magistrates’ Court.  Manjit was charged with driving offences and both defendants were charged with offences allegedly committed on 13 June in connection with the production of the driving documents.
Whilst the two Indians were waiting outside the court for the case to be called on, they saw the appellant talking to another police officer, Pc Revelle.  Revelle, it should be said, had no connection with the trial of the two Indians at all.  Revelle left the appellant, came over to the two Indians and asked to see their driving licences.  Parshan produced his.  Manjit did not.  The incident struck the two Indians as being somewhat odd and they reported it to their solicitor.
The hearing started soon afterwards.  The prosecution case depended principally (if not entirely) on the evidence of the appellant to the effect that Manjit and not Parshan was the driver of the car which he had stopped on 10 June.  He was cross-examined on behalf of the two Indians to suggest that his identification of the driver was mistaken.  He was then asked the following questions:

Q. Have you spoken to Pc Revelle this morning?  A. Yes.

Q. Are you aware that Pc Revelle approached my clients this morning and asked to see their driving licences and inspected Parshan’s driving licence, but could not inspect Manjit Singh’s driving licence because he didn’t have it with him?  A. No. [That was a lie.]

Q. Did you ask Pc Revelle to see my clients?  A. No. [That was also a lie.]

Q. Did Pc Revelle talk to you after he had spoken to my clients?  A. No. [That was also a lie.]

Q. Is it not the case that you asked Pc Revelle to see my clients so that you could find out which one was Manjit Singh and which one was Parshan Singh because you were not sure?  A. No.

Q. [This was in re-examination.]  Has there been any sort of conversation between you and Pc Revelle even remotely resembling that suggested to you?  A. No.  [That also was a lie.]‘

The matter was investigated.  The appellant eventually admitted the lies and the charges against the two Indians were therefore quite properly dropped.
During the subsequent inquiries the appellant gave as his reason for enlisting the help of Pc Revelle that he suspected Parshan and Manjit were going to try in some way to deceive the magistrates by switching their identities.  It seems that there was some basis for that suspicion.  He wanted to be sure who they were saying they were on that particular day.  When questioned he panicked, hence the lies.
The submissions made to the learned judge were twofold: (1) that there was no prima facie case that the admittedly false statements were made with the requisite guilty mind and (2) that in any event the false statements were not ‘material’ to the proceedings.  As already indicated the judge rejected both submissions.  These submissions have now been repeated before this court.
The basis of counsel’s first submission is that the word ‘wilfully’ requires proof by the prosecution of knowledge or belief by the accused man that the question asked and the answer to be given are material.  No offence is committed, it is submitted, if a person makes a statement even though he knows it to be false and even though it is in law material, if he does so in the honest though mistaken belief that it is not material in that proceeding.  The appellant, it is suggested, believed or may have believed, that the lying answers that he gave were immaterial to the proceedings and if so, it would follow that no offence would have been committed.  In other words the submission is that the prosecution must prove not only that the false statement was made with knowledge of its falsity or lack of belief in its truth, but also that the appellant knew or believed that the false statement was material in the proceeding.
Counsel for the appellant concedes that he has no authority directly bearing on this problem and that this is a point which does not seem to have occurred to anyone in the past.  However that is no reason on its own for rejecting the submission.
It does not seem to us that as a matter of construction the words of s 1(1) of the Perjury Act 1911 can properly bear the meaning which counsel seeks to ascribe to them.  If Parliament had intended that result, it would have been simple to say so, for example by providing that if any person sworn as a witness in a judicial proceeding wilfully makes a statement which he knows to be material in that proceeding and which he knows to be false or does not believe to be true, he shall be guilty of the offence.  Indeed words to this effect can be found in s 1A of the Perjury Act 1911, which was added by Sch 1 to the Evidence (Proceedings in Other Jurisdictions) Act 1975.  It is noteworthy that under s 1A(b) of the Perjury Act a person giving testimony which is false in a material particular commits an offence if he does not believe the testimony to be true whether or not he knows of its materiality.  So, when setting the standard in 1975 for those giving evidence otherwise than on oath, Parliament did not recoil from saying that the materiality of the false statement was something which, at least on occasions, could be viewed objectively.
When seeking to discover the intentions of Parliament in their use of the word ‘wilfully’, it is perhaps instructive to look at s 1(6) of the 1911 Act.  This provides as follows:

‘The question whether a statement on which perjury is assigned was material is a question of law to be determined by the court of trial.’

Looking at s 1 of the Act as a whole, it is clear that the question to which s 1(6) refers can only arise out of s 1(1).  If that subsection means that a statement is only material when the person making it believes it to be so, then s 1(6) is meaningless.  It would be surprising, to say the least, if Parliament intended to say that it was for the judge to decide if the statement was in fact material, and then for the jury to decide if the person making the statement was aware of the materiality.  In other words it seems to us to be unlikely that Parliament should have expressly provided that the question of materiality should be decided as a matter of law by the judge without stating in terms, if such is what they intended, that it would be for the jury to decide whether the defendant believed the statement was material.
Counsel for the appellant did invite our attention to the construction which other courts and some academic writers have attributed to the word ‘wilfully’ when it has been used in connection with other offences such as obstructing a police officer in the execution of his duty (see s 51(3) of the Police Act 1964).  We have carefully considered the various authorities to which our attention has been invited but we do not derive assistance therefrom.
In our judgment the use of the word ‘wilfully’ in this section of the 1911 Act requires the prosecution to prove no more than that the statement was made deliberately and not inadvertently or by mistake.
The second submission is that the lying statements made by the appellant were not material in the proceeding before the justices.  Counsel for the appellant contends that it is the materiality of the truth, if told, which is the question to be decided and that it is only where the truth, if told, would have affected the decision of the magistrates that the requirement of materiality is satisfied.  Here again he cites a number of decisions which he concedes, and we agree, provide examples rather than guidance: for instance, R v Murray (1858) 1 F & F 80, 175 ER 635 and R v Holden (1872) 12 Cox CC 166.
He also draws our attention to R v Sweet-Escott (1971) 55 Cr App R 316.  This was a decision at Devonshire Assizes by Lawton J on the question of materiality in a case brought under the same section of the 1911 Act.  He has this to say (at 320–321):

‘What then is the principle upon which the judge should draw the line? . . . The question arises whether this cross-examination would have affected the decision of the Okehampton Magistrates to commit Miss X for trial had this defendant admitted that he had had those convictions.  In my judgment, it is inconceivable that they would have refused to commit because over twenty years before as a young man he had got into trouble . . .’

This passage is cited by counsel for the appellant as support for his contention that a statement is only material if the truth would have affected the outcome and not if it merely might have done so.  Lawton J was plainly not concerned with that particular distinction in the case he was deciding.
The matter in our judgment was correctly stated by Lord Campbell CJ in R v Lavey 3 Car & Kir 26 at 30, 175 ER 448 at 450, where he directed the jury as follows (it should be noted that this was of course before the provisions of s 1(1) and (6) of the 1911 Act came into existence):

‘You can, I think, have no doubt that she was tried at the Central Criminal Court, and on the question, whether what she falsely swore was material or not, you will consider whether her evidence in this respect might not influence the mind of the judge of the County Court in believing or disbelieving the other statements she made in giving her evidence . . .’

Nor do we subscribe to the view that it is the materiality of the truth, if told, which is in issue, though that in some cases may help to throw light on the materiality of the false statement.  The section is clear.  It is the statement which is made which must be material, in this case the denial that the appellant had enlisted Pc Revelle to make inquiries of the Indians.  Whatever may have been the true reason for that request, the lies told effectively brought to a halt that line of cross-examination, which undoubtedly went to the heart of the case, namely the appellant’s expressed belief that the driver had been Manjit.  The fact that further cross-examination was prevented might very well, it is clear, have affected the outcome of the case.  Even looked at as the appellant asked that we should, the answer would remain the same.  The truth if told would have entailed the admission that the appellant was indeed making inquiries about the respective identity of the two Indians.  Whatever explanation he might have given for this would not alter the fact that the admission itself might very well have affected the justices’ determination of guilt or innocence.
In our judgment in cases under s 1(1) of the Perjury Act 1911 the prosecution have the burden of proving to the requisite standard the following matters: (1) that the witness was lawfully sworn as a witness (2) in a judicial proceeding (3) that the witness made a statement wilfully, that is to say deliberately and not inadvertently or by mistake (4) that that statement was false (5) that the witness knew it was false or did not believe it to be true (6) that the statement was, viewed objectively, material in the judicial proceeding.

This last requirement is, by virtue of s 1(6) of the 1911 Act, a matter to be decided by the judge.
In our judgment the decision of the judge in the present case was correct and this appeal must accordingly be dismissed.

DISPOSITION:
Appeal dismissed.

SOLICITORS:
Director of Public Prosecutions (for the Crown).

Police — Negligence — Duty to take care — Appropriate adult — Plaintiff acting as appropriate adult during interviews of murder suspect considered to be mentally disordered — Plaintiff claiming damages against police for psychological injury — Whether police owing duty of care to plaintiff — Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers: Leach v Chief Constable of Gloucestershire Constabulary COURT OF APPEAL (CIVIL DIVISION) (United Kingdom)

[1999] 1 All ER 215, 46 BMLR 77, [1999] 1 WLR 1421

Leach v Chief Constable of Gloucestershire Constabulary
COURT OF APPEAL (CIVIL DIVISION)
[1999] 1 All ER 215, 46 BMLR 77, [1999] 1 WLR 1421
HEARING-DATES: 4 June, 31 July 1998
31 July 1998
CATCHWORDS:
Police — Negligence — Duty to take care — Appropriate adult — Plaintiff acting as appropriate adult during interviews of murder suspect considered to be mentally disordered — Plaintiff claiming damages against police for psychological injury — Whether police owing duty of care to plaintiff — Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers.

HEADNOTE:
The police decided to interview W, whom they considered to be mentally disordered, about a number of murders committed in particularly harrowing and traumatic circumstances. In accordance with the requirements of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C) issued by the Secretary of State under s 66 of the Police and Criminal Evidence Act 1984, they asked the plaintiff, a voluntary worker, to attend the police station to act as an appropriate adult during the police interview. She was told nothing of the nature of the case, only that the person to be interviewed was a 52-year-old male. The plaintiff attended as requested and acted as an appropriate adult, sitting in on interviews, accompanying W to scenes of the murders and, on numerous occasions, being locked and left alone in a cell with him. Subsequently the plaintiff claimed that she had suffered post-traumatic stress and psychological injury as well as a stroke by reason of her involvement in the matter, and she brought an action for damages for negligence against the police. She further claimed that she should have been offered counselling during or within a reasonably short time of her exposure to the trauma. The defendant contended that the independent nature of the plaintiff’s role precluded any assumption of responsibility by the police: her task was to advise and assist the person detained and, as such, her special relationship was with him and not the police. The judge struck out her claim for damages, on the basis that it was not just and reasonable in the public interest to impose a duty of care on the police when they were acting at all times within the Codes of Practice and where the plaintiff was performing her role voluntarily. The plaintiff appealed.

Held — (Pill LJ dissenting) The law imposed no duty on the police towards an appropriate adult appointed under Code C to take care to protect that adult from mental or psychological harm. There was no suggestion in Code C that Parliament or the Secretary of State intended that the police should owe a duty towards an appropriate adult. The whole essence of the relationship between the appropriate adult and the police was that they did not assume responsibility towards him in relation to his duties: an appropriate adult was there at the police station to be of assistance and if the police were under a concurrent legal duty to be protective of the appropriate adult’s psychological well-being, they might not be able to do their job of interviewing a suspect effectively. However, the existence of a duty to provide counselling would not interfere with interviews. Accordingly (Pill LJ concurring), the plaintiff’s claim would be allowed to proceed to trial on the issue of failure to provide counselling services. The particulars of claim, so far as they related to the duty of care towards the plaintiff as an appropriate adult, would, though, remain struck out and the appeal would therefore be allowed in part.

NOTES:
For nature of negligence and the duty to take care generally, see 33 Halsbury’s Laws (4th edn reissue) paras 601-605, and for cases on the subject, see 36(1) Digest (2nd reissue) 7-64, 1-325.

For the Police and Criminal Evidence Act 1984, s 66, see 12 Halsbury’s Statutes (4th edn) (1997 reissue) 873.

CASES-REF-TO:

AB v Tameside and Glossop Health Authority (1996) 35 BMLR 79, CA.
Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907, [1992] 1 AC 310, [1991] 3 WLR 1057, HL.
Alexandrou v Oxford [1993] 4 All ER 328, CA.
Allin v City and Hackney Health Authority [1996] 7 Med LR 167.
Ancell v McDermott [1993] 4 All ER 355, CA.
Attia v British Gas plc [1987] 3 All ER 455, [1988] QB 304, [1987] 3 WLR 1101, CA.
Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.
Elguzouli-Daf v Comr of Police of the Metropolis, McBrearty v Ministry of Defence [1995] 1 All ER 833, [1995] QB 335, [1995] 2 WLR 173, CA.
Frost v Chief Constable of the South Yorkshire Police, Duncan v British Coal Corp [1997] 1 All ER 540, [1998] QB 254, [1997] 3 WLR 1194, CA.
Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1991] 3 All ER 733, [1992] 1 AC 58, [1991] 3 WLR 340, HL.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575, [1964] AC 465, [1963] 3 WLR 101, HL.
Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53, [1988] 2 WLR 1049, HL.
Hunter v British Coal Corp [1998] 2 All ER 97, [1998] 3 WLR 685, CA.
Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246, [1990] 2 QB 283, [1990] 2 WLR 987, CA.
Knightley v Jones [1982] 1 All ER 851, [1982] 1 WLR 349, CA.
McLoughlin v O’Brian [1982] 2 All ER 298, [1983] 1 AC 410, [1982] 2 WLR 982, HL.
Miller v Royal Derwent Hospital Board of Management (29 May 1992, unreported), Aust SC.
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, Aust HC.
Osman v Ferguson [1993] 4 All ER 344, CA.
Page v Smith [1995] 2 All ER 736, [1996] AC 155, [1995] 2 WLR 644, HL.
R v Fagin, ex p Mountstephen [1996] COD 416.
Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, [1985] 1 WLR 1242.
Robertson v Forth Road Bridge Joint Board, Rough v Forth Road Bridge Joint Board 1995 SCLR 466, Ct of Sess.
Roy v Prior [1970] 2 All ER 729, [1971] AC 470, [1970] 3 WLR 202, HL.
Stovin v Wise (Norfolk CC, third party) [1996] 3 All ER 801, [1996] AC 923, [1996] 3 WLR 388, HL.
Swinney v Chief Constable of the Northumbria Police [1996] 3 All ER 449, [1997] QB 464, [1996] 3 WLR 968, CA.
Tranmore v TE Scudder Ltd [1998] CA Transcript 630.
Walker v Northumberland CC [1995] 1 All ER 737.
Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692.
Whitehouse v Jordan [1981] 1 All ER 267, [1981] 1 WLR 246, HL.
X and ors (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3 WLR 152, HL.
Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705, [1988] AC 175, [1987] 3 WLR 776, PC.

CASES-CITED:

Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004, HL.
Schofield v Chief Constable of West Yorkshire (1998) Times, 15 May, [1998] CA Transcript 712.

INTRODUCTION:
The plaintiff, Mrs Janet Leach, appealed from the decision of Judge Batterbury in the Bristol County Court on 17 November 1997, whereby he struck out the plaintiff’s claim for damages for negligence against the defendant, the Chief Constable of Gloucestershire Constabulary, on the ground that the police did not owe the plaintiff a duty of care when acting as an ‘appropriate adult’ in accordance with the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers. The facts are set out in the judgment of Pill LJ.

COUNSEL:
R Denyer QC and J Isherwood for the plaintiff; S Freeland for the defendant.

JUDGMENT-READ:
Cur adv vult 31 July 1998. The following judgments were delivered.

PANEL: HENRY, PILL, BROOKE LJJ

JUDGMENTBY-1: BROOKE LJ

JUDGMENT-1:
BROOKE LJ: The facts for the purposes of this appeal must be taken from the particulars of claim and they must be assumed to be true. They are conveniently set out in the judgment of Pill LJ, and I will not repeat them. Although the pleader averred that the plaintiff was required to remain in attendance, Mr Denyer QC accepted that this word should read ‘requested’ and that she was free to leave at any time. It is clear from the defence that a number of the plaintiff’s allegations will be put in issue, or sought to be set in a different context, at the trial.

As Pill LJ has made clear, the plaintiff contends that because of the history of events he has recounted, she suffered post-traumatic stress and psychological injury, in addition to the stroke she suffered while attending court. It is convenient to put the allegations of negligence she makes against the defendant into three different categories.

The first set of complaints relate to the police’s original request that she should act as an appropriate adult in this case. It is said that it should have been apparent to them that such previous experience as she might have had in the guise of ‘appropriate adult’ on the Young Offenders Project would be limited to juveniles charged, in the main, with minor offences. In those circumstances the police should not have invited her to attend and accompany Mr West over this protracted investigation without any adequate warning of what the case involved. They did not carry out a proper assessment of her suitability for this task, or give proper consideration to the effect that her performance of this role would or might have on her, given that she was an untrained and unqualified voluntary worker whose experience was limited to the young and homeless. They also took insufficient care to ensure that the ‘appropriate adult’ appointed for this task was properly qualified or experienced enough to take it on without risk of mental or psychological harm.

The second group of complaints relates to the fact that she was not offered or provided with counselling and trained support, such as was available to Mr Ogden and his staff, and to the police involved in the case. Such support, it is said, should have been offered or made available to her during the course of her exposure to the trauma she underwent as a result of what she heard and witnessed during the investigation and the interviews.

Finally, it is said that she was falsely advised and assured that she would not have to testify at trial.

These allegations of negligence are summarised as a general failure to make reasonable provision for her health and welfare when it should have been known, from the particularly harrowing and traumatic nature of the offences concerned, that she would be exposed to potentially injurious mental and psychological stress.

Before I turn to the way the judge decided the strike-out application, it is necessary to say something about the arrangements whereby an ‘appropriate adult’ sometimes attends a police station when the police are interviewing someone suspected of crime.

The present arrangements are prescribed by the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C), which was made pursuant to s 66 of the Police and Criminal Evidence Act 1984 (PACE). Pill LJ has set out in his judgment most of the relevant provisions of the second edition of Code C, which was in force in 1994. In addition, para 11.14 provides that a ‘person who is mentally disordered . . . must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult’.

Sir Henry Fisher’s report on the Confait case (HC Paper 90 (1977-78)) para 16.4 shows that the arrangements by which a mentally handicapped adult should be interviewed only in the presence of a parent or other person in whose care, custody or control he is, or of some other person who is not a police officer (for example a social worker) were first introduced by means of Home Office circular 109/1976 to chief officers of police, which was issued after consultation with the Lord Chief Justice. The discussion of the similar arrangements in relation to a child or young person at paras 16.26-16.27 of the report shows that their purpose is to ensure that there is some suitable adult person present who is capable of protecting the interests of the vulnerable person who is being interviewed by the police and of being an independent witness of what takes place. The Royal Commission on Criminal Procedure discussed this issue at paras 4.105 to 4.108 of their report (Cmnd 8092 (1981)). It is clear from para 4.108 that they envisaged that an important part of a social worker’s role, when attending as an appropriate adult, was to ensure that the mentally handicapped person understands the questions that are being put to him. By this time the practice was set out in Administrative Direction 4A of the Home Office circular 89/1978 called The Judges’ Rules and Administrative Directions to the Police, and this in turn was subsumed in Code C published under PACE.

The judge held that it was not just and reasonable in the public interest to impose a duty of care on the Gloucestershire police in the circumstances of this case when they were acting at all times within the Codes of Practice. He was clearly influenced by the fact that the plaintiff was performing her role voluntarily, and that it was not being suggested in her pleadings that she ever protested or showed any overt signs of distress or reluctance. He also appears to have been influenced by a passage in the judgment of Lord Hoffmann in Stovin v Wise (Norfolk CC, third party) [1996] 3 All ER 801 at 821, [1996] AC 923 at 946 to the effect that a public authority may have discretionary powers which enable it to do things to achieve a statutory purpose, notwithstanding that they involve a foreseeable risk of damage to others.

On the hearing of this appeal we were shown a number of illustrations of the way in which the courts have decided whether to categorise different types of mishap, or alleged mishap, within the criminal justice system as giving rise to the breach of a duty of care. Most of them were cases in which claims were brought in respect of physical injury or death (Ancell v McDermott [1993] 4 All ER 355, Osman v Ferguson [1993] 4 All ER 344, Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246, [1990] 2 QB 283 and Knightley v Johns [1982] 1 All ER 851, [1982] 1 WLR 349), or damage to property, or loss of property (Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, [1985] 1 WLR 1242 and Alexandrou v Oxford [1993] 4 All ER 328). Two were concerned with loss of liberty (Elguzouli-Daf v Comr of Police of the Metropolis, McBrearty v Ministry of Defence [1995] 1 All ER 833, [1995] QB 335 and Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692). In each, the court, after deciding that the type of damage complained of was a reasonably foreseeable consequence of the plaintiff’s acts or omissions, performed the familiar task of determining first whether the necessary relationship of proximity existed, and then whether it was fair, just and reasonable in the public interest to impose a duty of care in the circumstances of the case. In Elguzouli-Daf’s case, where the two plaintiffs complained about their loss of liberty for 22 and 85 days respectively which was allegedly caused by shortcomings on the part of the Crown Prosecution Service, Steyn LJ ([1995] 1 All ER 833 at 842, [1995] QB 335 at 349) said that these two considerations inevitably shaded into each other in the context of those two claims, and it did not seem to him that they could sensibly be considered separately. In the present case the harm alleged is psychiatric injury which was entirely divorced from physical injury, and because in the past this type of claim has been treated as problematical, I consider it appropriate to devote a little attention to it before turning to the principal issues we have to decide.

During the last ten years there have been an increasing number of claims coming before the courts in which plaintiffs have been claiming damages for psychiatric illness caused by the breach of some legal duty it is said that the defendants owed to them, when they have not suffered physical injuries at all. In Page v Smith the House of Lords by a majority ruled that if a duty situation exists, like the duty of a motorist not to cause reasonably foreseeable personal injury to others while he is driving his car, then the old distinction between physical injury and psychiatric injury (not linked with physical injury) no longer forms part of our law. This decision does not, however, help in identifying whether a duty situation exists in any particular context.

Most of the cases in the books are concerned with situations in which a plaintiff suffers psychiatric illness as a result of his own imperilment — as in Page v Smith — or reasonable fear of danger to himself, or as a result of the physical injury or imperilment of a third party (or parties) which has been caused by the defendant. Such claims are now being resolved by the courts on a case by case basis following the guidance given by the House of Lords in Page v Smith and Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907, [1992] 1 AC 310.

There is, however, a less familiar line of cases in which, as in the present case, a defendant has neither imperilled nor caused physical injury to anyone. One example is Walker v Northumberland CC [1995] 1 All ER 737, where the plaintiff suffered a psychiatric illness caused by stress at work, and Colman J held that he was entitled to recover damages by reason of his employer’s failure to provide him with a safe system of work. There was of course, no difficulty in identifying the existence of such a duty in the context of an employer-employee relationship.

Another example is Attia v British Gas plc [1987] 3 All ER 455, [1988] QB 304, where a plaintiff suffered reasonably foreseeable psychiatric illness as a result of the defendant causing damage to her property: she had to witness her house burning down as a result of the defendants’ negligence. This court declined to strike the claim out, and allowed it to go to trial on the facts.

In addition to these two types of case which can be readily categorised, the Law Commission has identified a miscellaneous group of cases in which recovery may be available for a negligently inflicted psychiatric illness (assuming that the standard elements of the tort of negligence can be made out): see its report, Liability for Psychiatric Illness (Law Com No 249) (1998) para 2.51. These include a case where a patient suffers a psychiatric illness because of negligent treatment by his/her psychiatrist (cf M (a minor) v Newham London BC [1995] 3 All ER 353, [1995] 2 AC 633); where a prisoner foreseeably suffers a psychiatric illness as a result of ill-treatment by prison officers (cf Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1991] 3 All ER 733 at 745-746, [1992] 1 AC 58 at 165-166 per Lord Bridge); and where recipients of distressing news suffer reasonably foreseeable psychiatric illness as a result of the news being broken in an insensitive manner (AB v Tameside and Glossop Health Authority (1996) 35 BMLR 79 and Allin v City and Hackney Health Authority [1996] 7 Med LR 167). These are useful illustrations, but there is not yet any English case of the types described in which it has not been comparatively easy to establish that the requisite duty of care exists, whether from a psychiatrist’s duty to his patient, the Prison Service’s assumption of responsibility for the care of prisoners, or, in the two medical cases I have mentioned, from the defendant health authorities’ acceptance that they owed a relevant duty of care to their patient or former patients. It is noteworthy that in M v Newham London BC (reported sub nom X and ors (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633) the House of Lords declined to recognise a duty of care owed by a local authority or by a psychiatrist retained by the authority towards a child or her parent in the event that the psychiatrist negligently performed his duties of inquiring and reporting on children believed to be at risk.

A case which appears to break new ground, but which was not mentioned by the Law Commission, is Swinney v Chief Constable of the Northumbria Police [1996] 3 All ER 449, [1997] QB 464. The plaintiffs, who were wife and husband, claimed that they were suffering from psychiatric illnesses because they had been threatened with violence and arson after some confidential information furnished by the first plaintiff to the police had been stolen from a police vehicle broken into by criminals. This court did not pay any particular attention to the fact that the claims were for damages for psychiatric illness. It allowed the action to proceed to trial on the facts because it was arguable that the police had assumed responsibility towards the first plaintiff and that there were no policy grounds on which the claim should be barred from proceeding. In evaluating all the public policy considerations that might apply, Peter Gibson LJ ([1996] 3 All ER 449 at 466, [1997] QB 464 at 486) said that it seemed to him plain that the position of a police informer required special consideration from the viewpoint of public policy (see also [1996] 3 All ER 449 at 464, 467, [1997] QB 464 at 484, 487 per Hirst and Ward LJJ).

Swinney’s case illustrates vividly the way in which, after Page v Smith, the courts in future are not going to have their way blocked by some supposed difference in kind between physical injury and psychiatric injury which may ipso facto bar cases of the latter type. On the other hand, where the reasonable foreseeability of harm of a psychiatric nature as a consequence of the defendant’s alleged acts or omissions can be established — as counsel for the police was at first willing to accept as arguable on the facts of the present case, and which I would consider to be arguable — the two other stages of the Caparo test (Caparo Industries plc v Dickman) may well shade together in this type of case, and it may not be sensible to consider them separately. In Stovin v Wise (Norfolk CC, third party) [1996] 3 All ER 801 at 808, [1996] AC 923 at 932 Lord Nicholls of Birkenhead suggested that ‘proximity’ was a slippery word, being a convenient shorthand for a relationship between two parties which makes it fair and reasonable that one should owe the other a duty of care.

I turn now to consider the first set of complaints to which I have referred. These are contained in paras (a), (b), (c) and (g) of the particulars of negligence. As the judge correctly observed, the plaintiff did not have to involve herself in the obligations of an appropriate adult. She agreed to do so, and she could have stopped doing so at any time. Indeed, Mr Denyer accepted that she had in fact been replaced for a short period, but had resumed her duties willingly when Mr West asked that she should come back. As the written agreement made clear, and as was indeed the case, she was not in an employer/employee relationship with the police: indeed she would not have been qualified to act as an appropriate adult if she had been (see Code C, para 1.7). I do not consider that there is anything in the language of the confidentiality agreement, which simply reflected the existence of a duty of confidentiality already imposed by the general law, that could create a duty of care which did not otherwise exist.

In my judgment, there are strong reasons of a policy nature why the law should not impose on the police a duty towards an appropriate adult to take care to protect her from the kind of harm of which the plaintiff complains in this case. It must be remembered that the potential beneficiaries of such a duty would constitute a very wide class. They would include the parents or guardians of any juvenile, or the relative, guardian or other person responsible for anyone who is mentally disordered or mentally handicapped, or, if there is nobody suitable in this category or in the categories of social worker mentioned in para 1.7(a)(ii) and (b)(ii) of Code C, any responsible adult over 18 (other than police officers or those employed by the police) who agrees to do the job. Many parents, guardians and relatives are likely to be in an anxious, nervous state when they come to the police station to perform their role as appropriate adults, and although the crimes imputed to Frederick West were particularly revolting, the police often have to investigate fairly unpleasant activities. I do not know how it could be envisaged that they should fulfil their role if they owed a duty to the appropriate adult of the type for which the plaintiff contends, or how the courts could readily distinguish on the facts of any particular case those adults to whom such a duty is owed from those to whom it is not owed.

Although the requirements of Code C are not enforceable by mandamus (cf PACE s 67(10)), Parliament decided that they were so important that they should not be introduced without a positive resolution of both Houses (s 67(4)) and it used a subtler mechanism for ensuring that the police recognised that their task of obtaining evidence likely to lead to the conviction of alleged offenders would be impeded if they did not comply with requirements of the codes (see s 67(11)). In other words, the police are for all practical purposes obliged to ensure that an appropriate adult is present, although that person will not be performing her independent duties in any sense as an agent for the police.

In his judgment Pill LJ suggests that it would be legitimate to limit the ambit of our decision in this case to those mentioned in para 1.7(b)(iii) of Code C (‘some other responsible adult aged 18 or over who is not a police officer or employed by the police’) and to leave for decision on some future occasion or occasions the question whether the police owe a similar legal duty, which nobody has ever previously identified or, so far as I am aware, suggested, to those in categories (i) and (ii) (a relative etc, or someone who has experience of dealing with mentally disordered people). In the meantime the police would be left in a state of complete uncertainty. They would not know what they are obliged to do in order to comply with their legal duty in relation to category (iii), and it is difficult to see any very logical reason why they should not behave in the same way towards those in categories (i) and (ii), at any rate in relation to their conduct during questioning or visits to the scenes of crimes.

There is no trace of any suggestion in Code C that Parliament or the Secretary of State intended that the police should owe a duty towards an appropriate adult of the type suggested by Mr Denyer. The independence of the appropriate adult is an essential part of her function. She is not formally selected, paid or employed by the police, and they have no power to secure that she be replaced: in the event of an irreconcilable dispute a court, and not a police-appointed authority would have to rule that she could no longer be properly regarded as appropriate. Note for Guidance 1E in Code C, indeed, includes the suggestion that it may in certain circumstances be more satisfactory for all concerned if the appropriate adult (in the case of mentally disordered persons) is someone who has experience or training in their care rather than a relative lacking such qualifications, but if the person himself prefers a relative to a better qualified stranger, the Note for Guidance prescribes that his wishes should, if practicable, be respected.

In a number of cases liability is found to arise because the defendants assumed responsibility vis-a-vis the plaintiff in a relevant respect. Examples in this field include the relationship between the police and a police informer in relation to the security of the information entrusted to police care (Swinney’s case), the relationship between the police and someone they detain in custody and hand over to the custody of the prison service in relation to information about his known suicidal tendencies (Kirkham’s case), and the relationship between the Crown Prosecution Service and an offender in relation to information that his responsibility in respect of a pending charge has been admitted and taken into consideration at a Crown Court, so that he was no longer in jeopardy in respect of that charge before magistrates (Welsh’s case). In my judgment the whole essence of the present plaintiff’s relationship to the police is that they did not assume responsibility towards her in relation to her duties as appropriate adult. She was there at the police station to be of assistance to Mr West, and the police might not be able to do their job of interviewing Mr West effectively if they were under a concurrent legal duty to be protective of the plaintiff’s psychological well-being.

It must be remembered that if a duty of care is found to exist, it would be a duty to take reasonable care not to do reasonably foreseeable injury to the mind of the person to whom the duty is owed. When considering foreseeability, that person, if nothing more is known about him, must be assumed to be a person of customary phlegm, but if the duty is broken, the victim would be treated as a primary victim, and if the victim in fact has an ‘eggshell mind’, then the police would be liable for all the harm suffered by a person with a mind in such a state (see Page v Smith [1995] 2 All ER 736 at 756-760, [1996] AC 155 at 185-190 per Lord Lloyd of Berwick) unless some different rules are introduced on policy grounds for some of the cases in the Law Commission’s third category, as compared with the rules we now have to use for primary victims who are directly imperilled in an accident.

A further problem is connected with the standard of care the courts should apply in determining whether the alleged duty is broken. Judges have no particular expertise in deciding what should or should not be done to avoid the sort of stressor which may trigger off an identifiable psychiatric illness, and counsel did not suggest that there was any repository of wisdom to which the police might have access in order to know what they should do to order to comply with their suggested new legal duty. In cases involving professional men and women the courts will customarily apply the contemporary standard of care accepted as proper by a responsible body of professional people practising in the field in question (Whitehouse v Jordan [1981] 1 All ER 267, [1981] 1 WLR 246). If a duty of care exists, and there is no body of opinion to which the court should look, it will have to apply what it considers to be an appropriate standard, drawn no doubt from the evidence it receives in the particular case it is deciding (see AB v Tameside and Glossop Health Authority (1996) 35 BMLR 79 at 93 per Brooke LJ). It is not very satisfactory to develop the law in a novel field on such possibly unreliable foundations.

Counsel told us that they had not been able to identify any case in any common law jurisdiction which suggested that a legal duty of care might exist in a situation of this kind, so that there would be no model code on which the courts could draw. A hypothetical code of acceptable practice could not be limited to a duty to provide counselling, because if counselling is necessary, foreseeable harm may already have been done. It would have to involve vetting whether the responsible adult is sufficiently robust to withstand exposure to what may be distasteful and shocking details, because the police, saddled with their new legal duty, would wish to have the right to vet the person in question or to relieve her of her responsibilities even if she had won the trust of the person being questioned. This new right of police veto might well militate against the public interest, since a sensitive person, as contrasted with a rather unimaginative, hard-boiled personality, might generally be thought more appropriate for this task, and the code itself suggests that the choice of the appropriate adult should ultimately be one for the person being questioned, not for the police. I had a comparable worry when I was concerned with a case in which free-standing psychiatric injury had been accepted as a means of qualifying for a police pension (see R v Fagin, ex p Mountstephen [1996] COD 416) because it appeared to me that the ramifications of an obligation to pay a pension to a policeman who retired early due to stress-related psychiatric illness, even if he had an eggshell personality when he entered police service, might not have been properly thought out.

I do not derive any assistance at all from the thought that there were well-established duties of care which the police undoubtedly owed to the plaintiff, just as they owed them to anybody else who was foreseeably at risk of personal injury: for instance the occupier’s duty of care to ensure, so far as was reasonable, that the chair she sat on did not collapse, or a duty of care to do what was reasonable to protect her from physical attack by someone in police custody. Where I part company from Pill LJ is that he sees no sensible distinction between the latter situation and the situation with which we are concerned in the present case.

The reason why I see a clear distinction is that in the present case the harm from which the police are said to be under a duty to protect her is harm to her mind, and the history of English law over the last 100 years has shown that this is a highly charged policy area. In my judgment, in our hierarchy of courts it is for the House of Lords to take any new policy decisions in this field, if it is considered to be an appropriate subject for judicial law-making at all, and not for this court (compare the similar approach of this court in the two recent cases of Hunter v British Coal Corp [1998] 2 All ER 97, [1998] 3 WLR 685 and Tranmore v TE Scudder Ltd [1998] CA Transcript 630. See also the difficulties the House of Lords experienced in deciding how policy considerations should stake out the limits of the law in the ‘secondary victim’ case of McLoughlin v O’Brian [1982] 2 All ER 298, [1983] AC 410).

Three years at the Law Commission taught me the very great practical problems that are created when judges, out of sympathy for a particular plaintiff, identify the existence of a quite new duty of care scenario without spelling out what is required to comply with that duty except the vague aspiration that the details may be filled out on a case by case basis hereafter. I have no difficulty in concluding from the story of this case that it would be very desirable for the Home Secretary to initiate consultation about the guidance which should be given to the police in relation to their selection and treatment of appropriate adults, since Code C is at present rather short of details on these matters. The Gloucestershire police already appear to think that they have power to provide counselling at taxpayers’ expense to the solicitor acting for a person being questioned, but as with all items of expenditure from public funds it would be desirable to make this power explicit, if it exists, and to set out the criteria which should control its exercise. For this court to go further than this and to create a new, rather vaguely defined legal duty where none has been perceived to exist before would, in my judgment, not be helpful. The House of Lords, indeed, would be likely to receive the benefit of a much wider range of information to enable them to make policy choices than was available to us.

I am conscious that the House of Lords has repeatedly stated that a plaintiff’s claim should not be struck out unless it is clear and obvious that in law the claim cannot succeed. Where the law is not settled but is in a state of development, it is normally inappropriate to decide novel questions on hypothetical facts (X and ors (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353 at 372-373, [1995] 2 AC 633 at 730-741 per Lord Browne-Wilkinson). In my judgment we are in just as good a position now as we would be at the end of a contested trial to decide the policy question which will be determinative of liability on the first set of complaints. I therefore agree with the judge that paras (a), (b), (c) and (g) of the particulars of claim should be struck out. I also agree with Henry LJ that we should grant liberty to apply to restore sub-para (g) if the plaintiff’s counsel wishes to do so for any reason at the trial.

As to the second set of complaints, which are set out in paras (d) and (e) of the particulars of claim, I do not consider that the fact that the police provided counselling for Mr West’s solicitor and his staff — precisely what they did in relation to the plaintiff is in issue between the parties, but for present purposes we must assume that she did not receive this service — takes the matter any further forward. Mr Denyer accepted that the police owed no legal duty towards Mr West’s solicitor of the type he contends for in respect of his own client, and unfortunate though it is if the plaintiff’s complaint in this respect is well founded, I am very doubtful whether this disparity of treatment could give rise to a legal duty which did not otherwise exist. I have, however, read the judgment of Henry LJ, and I do not dissent from his view that this part of the plaintiff’s claim should be allowed to proceed to trial on these issues, in order that the facts may be definitively established before a court makes a final ruling on the questions whether a duty of care did exist in the circumstances established at the trial, what form it took, and whether it was broken. I would therefore be willing to allow the appeal to the extent that paras (d) and (e) of the particulars of negligence are restored to the particulars of claim.

As to the final complaint, which is contained in para (f) of the particulars of negligence, Mr Denyer did not suggest to us that if his client’s claim was unsustainable on the basis that the police owed her no duty of care to protect her from reasonably foreseeable psychiatric injuries while acting as an appropriate adult, she had a free-standing cause of action in negligence in relation to the allegation that she was falsely advised and assured that she would not have to testify at trial. Although it is easy to imagine circumstances in which carelessness by the police in giving false information on which a plaintiff relied to her detriment might found liability, irrespective of the wider issues raised by this case, it is unnecessary to examine this question in view of the manner in which Mr Denyer argued his case. It appears to me that he was correct to confine his argument in this way, because the nature of the plaintiff’s relationship to the police would have been an essential starting-point for any inquiry as to whether she was owed a Hedley Byrne duty (see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575, [1964] AC 465) in relation to this particular statement. Because she was as a matter of law independent of the police, it is easier to see that she could have been owed no such duty in relation to a matter over which the police would have had no control. I therefore agree with the judge that paragraph (f) of the particulars of negligence should be struck out.

For these reasons the judge was in my judgment correct to decide this application in the way he did, save for paras (d) and (e) of the particulars of negligence, which I would be content to see restored to the particulars of claim, along with paras 1-6 and 8-9. To that extent only I would allow the appeal.

JUDGMENTBY-2: HENRY LJ

JUDGMENT-2:
HENRY LJ: Defendants often do themselves no favours when they attempt to strike the plaintiff’s statement of claim under RSC Ord 18, r 19. This is because such applications commonly (and certainly here) have to be decided on inadequate facts and untested but implausible factual assumptions. In this appeal the inadequacy of the factual basis is demonstrated by the fact that we have not seen the transcripts of Frederick West’s interviews with the police, nor even any summary of them. Nor have we seen any medical reports in relation to the plaintiff, nor any medical opinion on causation and foreseeability. Yet problems of foreseeability and causation are normally central in any case where the damage alleged is psychiatric. But for our purposes we must assume, however sceptically, that foreseeability will be established.

Though the case concerns psychiatric damage, it is not the normal psychiatric damage case. That is to say, it is not a case which involved either a near-accident to the plaintiff, nor the plaintiff witnessing an accident or anticipated accident to another, nor its aftermath, nor being told of such an accident. Nor is it a case where the stressing or distressing factor was caused by the negligence of the defendant. That factor was whatever it was that Frederick West said in interview in answer to the questions lawfully asked of him by the police officers who interrogated him under the regime laid down by the Police and Criminal Evidence Act 1984, and the codes approved by Parliament.

In their interviews of Frederick West, the police were playing an important part in their investigative process — important for the person questioned, important for the police, and important for the public interest in the openness and fairness of the judicial process. The safeguards to ensure the integrity of the process are laid down in the Act and in the codes. In the case of an adult offender, where there is any suspicion that he or she might be mentally disordered, then the custody officer must ensure that an ‘appropriate adult’ (AA) is in place. That AA is there for the protection of the suspect. His presence is, as a general rule, necessary at any interview even though (as was the case here) the accused’s solicitor is present. Other police officers or employees of the police are disqualified from performing the role. The role requires independent judgment — the AA is there to advise the person questioned, to see that the interview is being conducted properly and fairly, and to ensure that the person understands the questions. For the purpose of the interview, he is there to assist and advise the person questioned who must be informed that he can consult privately with the AA at any time. The person questioned may object to the AA, or express a preference for another, and the notes to the code reflect that some regard should be paid to the accused’s expressed preference (as here was, when the plaintiff voluntarily resumed her role as AA).

In their conduct of these interviews the police are performing an important part of their public duty in the investigation of crime. So this is a case where public policy may properly ‘confine the duty of care within narrower limits than those which would be defined by an unqualified acceptance of the neighbour principle’ (see Lord Keith in Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705 at 710, [1988] AC 175 at 191, quoting Brennan J in the High Court of Australia). Lord Keith expanded on this immunity in Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 at 243-244, [1989] AC 53 at 63-64. There he details the public policy immunity from suit enjoyed by the police. For the reasons there set out it seems to me to be quite clear that the police could successfully rely on that public policy defence to defeat any claim against them in negligence in the way in which they chose to carry out their interviews in their investigative role. As will be seen when we come to the pleadings, the plaintiff does not assert negligence in the conduct of the interviews. Had such a case been made, the public policy defence would have defeated it.

But, as Lord Wilberforce put it in Roy v Prior [1970] 2 All ER 729 at 736, [1971] AC 470 at 480: ‘Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest.’

Accordingly, that public policy immunity must be checked against the public interest. Against that background I come to the pleaded case.

The criticisms made of the defendants are set out in the particulars of negligence already cited by Pill LJ. The provisions of Ord 18, r 19 make it clear that ‘anything’ in a pleading may be struck out if ‘it discloses no reasonable cause of action’. Here the defendants sought and succeeded in striking out the whole action, but it lies within the powers of this court to effect a partial strike-out. And that is what I believe to be appropriate in this appeal.

Of the particulars of negligence (a), (b) and (c), all complain that the plaintiff should not have been invited to become nor accepted as the AA without warning as to the nature of the case, and assessment of her suitability for the role as to whether she was properly qualified and/or ‘experienced’ enough to take on the role ‘without risk of mental or psychological harm’.

It seems to me clear that no such duty of pre-selection lies. First, if Parliament had wished AAs to be limited to those experienced in dealing with mental illness, they would have so restricted the field. But they wished the field to be wider.

Second, as we can only guess at the future, no one knew what form the interviews would take. There would not seem to be much risk, even to the most susceptible psyche, in a ‘no comment’ interview.

Third, being the AA is a voluntary, unpaid task, not a contractual obligation. As Mr Denyer QC acknowledged, though his pleading alleges that Mrs Leach was ‘required’ to attend, in fact she was ‘requested’, and could have stopped at any time. If at any time she had found the interviews in any way distressing, she could have walked out and brought the interview to an end. Where the AA retains such a power, in my judgment there is little point in a rigorous selection procedure for an unpredictable occurrence.

Fourth, public policy militates against there being pressure on the police to act defensively, and to restrict their approaches to act as to AAs to the hardened and cynical.

Therefore, in my judgment the police may rely on their public service immunity to defeat claims made against them in relation to both the conduct of the interviews, and in the choice of appropriate adult. In my judgment the police should not be required to act defensively to avoid claims either in their approaches to individuals to see if they will act as AAs, or in the conduct of their interviews. That would not be in the public interest. Therefore I would strike out paras (a), (b) and (c) of the particulars of negligence.

The next head of claim in the particulars of negligence presents more difficulties:

‘(d) No counselling or trained help and support was offered or made available to the plaintiff during and/or within a reasonably short time of her exposure to the trauma undergone as a result of what she heard and witnessed during the investigation and interviews described.’

I start with the Australian case of Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. The psychiatric injury had been sustained by an employee plaintiff, who went to the assistance of two fellow employees, who had been badly burnt. There Windeyer J, having earlier wryly commented that in psychiatric damage cases the law marches with medicine, but ‘in the rear and limping a little’ (at 395), went on to say (at 404): ‘Foreseeable harm caused by a master to the mind of his servant is just as much a breach of his duty of care to him as harm to his body would be.’

Since then there has been no doubt as to the validity in appropriate cases, where proximity is established, of that proposition. That was of course a case involving a horrific accident, but the employer may be equally liable for psychiatric damage caused by the employee’s work-load where there is no such shocking trigger event — see Walker v Northumberland CC [1995] 1 All ER 737.

It is pleaded in the statement of claim that ‘the Defendant’s officers on the case were offered counselling in the course of and as a result of their involvement with the case’. For an analogous case see Miller v Royal Derwent Hospital Board of Management (29 May 1992, unreported) — for which I am grateful to the editors of Mullany and Handford Tort Liability for Psychiatric Damage (1993).

There, though the claim failed on forseeability and causation, it seems that the court was prepared to assume that the employer might owe his employee such a duty.

For Ord 18, r 19 purposes I can safely assume that in offering such counselling the police, as employers very familiar with psychiatric stressors in the forms of horrific accidents and natural disasters, recognise a general duty to take all reasonable steps to protect their employees from harm, including psychiatric harm.

Now the plaintiff was not their employee, nor was she allowed to be their employee. But though a volunteer free to leave at any time, she was there at their request and going through whatever the interviewing officers (and we know not whether they had counselling) were going through. In my judgment she would clearly (but for the public service immunity) satisfy the proximity test. Though her presence was voluntary, it was of assistance to the police in their task, because they could not conduct their interviews without an AA, and she clearly enjoyed Frederick West’s trust.

But does the public service immunity argument offer a defence? In my judgment it clearly does not because the existence of a duty where appropriate to offer and provide counselling to AAs in no way hampers or interferes with the police’s discretion as to the content and number of interviews. Their investigative process remains unaffected. There is no reason for the immunity to operate. So I would not strike out either particulars (d) or (e). Particular (g) is a sweep-up allegation. If it were widened to extend beyond the offer and provision of counselling it might conceivably interfere with the interview process. I would strike it out on the basis that (d) and (e) cover counselling, with liberty to apply to the judge responsible for the case.

No reliance on particular (f) was before us. Even if required by the rules governing this application to assume any such thing happened, the chief constable would not be vicariously liable for any such statement. I would strike it out.

For the avoidance of doubt, and in agreement with Brooke LJ, in my judgment the so-called confidentiality agreement is irrelevant to the matters I have had to consider.

In so far as Pill LJ’s judgment does not strike out particulars of negligence (a), (b), (c), (f) and (g) as qualified, I disagree with it for the reasons set out above, and agree with that of Brooke LJ.

Accordingly, I would allow this appeal to the extent of restoring the particulars of claim, with particulars (a), (b), (c), (f) and (g) deleted from the pleading.

DISSENTBY-1: PILL LJ

DISSENT-JDGMT-1:
PILL LJ (giving the first judgment at the invitation of Henry LJ): On 17 November 1997 Judge Batterbury struck out Mrs Janet Leach’s claim for damages against the Chief Constable of Gloucestershire. The plaintiff appeals against that striking out and the issue for this court, as expressed by the defendant in the written submissions made on his behalf, is ‘whether the learned Judge was correct in holding that on the matters set out in the particulars of claim the defendant did not owe the plaintiff a duty of care’.

On 25 February 1994 the plaintiff, then a voluntary worker on the Young Homeless Project in Cheltenham and 38 years old, was asked by a police officer in the Gloucestershire force to attend Bearland police station to act as what is described in the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C) issued by the Secretary of State under s 66 of the Police and Criminal Evidence Act 1984 as an ‘appropriate adult’ during a police interview at the station. She was told only that the person to be interviewed was a 52-year-old male. In fact, the particulars of claim continue, ‘it was one Frederick West who was about to be questioned about a number of murders committed in particularly harrowing and traumatic circumstances’. She had been told nothing about the nature of the case. The police had formed the view that West was mentally disordered so that Code C required the presence at interview of an appropriate adult.

On that day and for many weeks thereafter, the plaintiff acted as ‘an appropriate adult’ ‘sitting in on interviews, accompanying him [West] to scenes of the murders he had committed and, on numerous occasions, being locked and left alone in a cell with him’. It is common ground that on 24 March 1994 the plaintiff signed, at the request of police officers, a confidentiality agreement, which I will set out. Had she declined to sign, she could not have continued to act as an appropriate adult. The plaintiff claims that she was not offered counselling or support until January 1995 after West had committed suicide in custody. The plaintiff subsequently gave evidence at the trial for murder of Rosemary West, wife of Frederick. The plaintiff claims that, by reason of her involvement in the matter, she has suffered post-traumatic stress and psychological injury as well as a stroke.

Further particulars of the particulars of claim have not been sought and the present application is to be considered on the basis of that pleading but it is common ground that the plaintiff attended very many interviews, about forty, as an appropriate adult between 25 February and 24 March 1994 and again between 13 April and 5 May 1994. The West case is notorious amongst modern crimes and it is inconceivable that the police officers concerned were unaware during most if not all of that period that they were dealing with a particularly harrowing case involving allegations of mass murder. That must have been obvious at an early stage of their inquiries. The plaintiff alleges that West’s solicitor (Mr Ogden) and his staff as well as the defendant’s officers on the case were offered counselling in the course of and as a result of their involvement with the case.

The allegations of negligence are:

‘(a) she was caused and/or permitted to attend and accompany Frederick West over the course of the protracted investigation described without adequate or any warning of what the case involved, when it was or ought to have been apparent that such previous experience as she may have had in the guise of “appropriate adult” on the Young Homeless Project would be limited to juveniles charged, in the main, with minor offences; (b) there was no proper assessment of the Plaintiff’s suitability for the task described nor due or any consideration given to the effect that attending and accompanying West in the manner herein described at paragraph 3 would or might have on her, as an untrained/unqualified voluntary worker whose experience was limited to the young and homeless; (c) insufficient care was taken to ensure that the “appropriate adult” caused or permitted to attend and accompany the said West was properly qualified and/or experienced enough to take on the role without risk of mental or psychological harm; (d) no counselling or trained help and support was offered or made available to the Plaintiff during and/or within a reasonably short time of her exposure to the trauma undergone as a result of what she heard and witnessed during the investigation and interviews described; (e) the counselling and trained support available to Mr Ogden, his staff and the Defendant’s officers on the case was not provided for or offered to the Plaintiff; (f) the Plaintiff was falsely advised and assured that she would not have to testify at trial; (g) there was in the premises a failure to make reasonable provision for the health and welfare of the Plaintiff during and as a result of her involvement in the said case when it was or ought to have been known from the particularly harrowing and traumatic nature of the offences concerned that she would be exposed to potentially injurious mental and psychological stress.’

The confidentiality agreement provides:

‘THIS AGREEMENT dated 24-03-94 is made BETWEEN:- (1) The Gloucestershire Constabulary (“the Constabulary”) of Divisional Police Headquarters, Bearland, Gloucester, and (2) Mrs Janet Leach (“the Appropriate Adult”) of 11 Elm Grove Road, Hucclecote, Gloucester.

WHEREBY IT IS AGREED as follows . . .

(3) Definitions “the Appointment” the appointment of the appropriate adult pursuant to the terms of this Agreement “the Constabulary” the Police Force for Gloucestershire “the Appropriate Adult” the person appointed by the Constabulary for the specific purpose of attending interviews as an “observer”.

(4) Purpose of this Agreement The agreement is for the appointment of an Appropriate Adult for the specific purpose of attending interviews as an “observer” conducted by the Constabulary pursuant to their investigation into the alleged crimes perpetrated by Mr Frederick Walter Stephen West of 25 Cromwell Street, Gloucester or any matters arising from or connected thereto.

(5) Date of Agreement This Agreement shall be of no effect until it has been signed by or on behalf of both parties and it is agreed that the terms of this Agreement shall have effect from the date on which the Appropriate Adult was appointed in that capacity as specified in Clause 6.

(6) Period of Appointment The Appointment shall commence on or be deemed to have commenced on 25 February 1994.

(7) Appropriate Adult’s obligations The Appropriate Adult shall attend such interviews and act as an observer as requested by the Constabulary.

(8) Confidentiality In order to protect the confidentiality of notes photographs, plans or other written or spoken information however stored which the Appropriate Adult may have acquired during her appointment and without prejudice to every other duty to keep secret all information given to the Appropriate Adult or gained in confidence or acquired during the Appointment the Appropriate Adult agrees that any such information is confidential and will not either during the Appointment or after its termination disclose to anyone and will use the Appropriate Adult’s best endeavours to prevent the disclosure to anyone of any confidential information concerning all matters heard or disclosed to the Appropriate Adult during interviews and all ancillary discussions including all meetings and discussions which may take place between the Appropriate Adult Mr West and his defence Solicitor or nominated agent in the absence of a member of the Constabulary. The Appropriate Adult will not at any time make any copy abstract summary or precis of the whole of part of any information document or photograph relating to any details acquired during the period of appointment. Any such copy abstract summary or precis of the whole or part of any information document of photograph prepared in breach of the provision shall belong to the Constabulary and should be immediately given over to the Constabulary when so directed by the Constabulary. The Appropriate Adult shall therefore not disseminate during the period of this agreement or after its termination any such information without the written permission of the Constabulary.

(9) Criminal Law Without prejudice to any other duty and remedy implied by law, equity and the terms of this Agreement the Appropriate Adult acknowledges potential liability for prosecution under the Criminal Law for breach of this Agreement.

(10) Effect of Termination The termination of the Appointment shall be without prejudice to any right the Constabulary may have in respect of any breach by the Appropriate Adult of any of the provisions of this Agreement which may have occurred both prior to and after such termination.

(11) Status of Agreement Nothing in this Agreement is intended to create an Employer and Employee relationship and the Appropriate Adult acknowledges that no express or implied duties are owed by the Constabulary to the Appropriate Adult.

(12) The Appropriate Adult acknowledges that she is under an express duty not to disseminate any information as specified in Clause (8) acquired during this Agreement or after its termination in the Course of her specific duty.

(13) The Constabulary acknowledges that this Agreement should not affect the independence of the Appropriate Adult in performing her appropriate task and is intended to protect the confidentiality of information as specified in Clause (8).’

The agreement was signed by the plaintiff and by an officer for and on behalf of the Gloucestershire Constabulary. It is deemed to have commenced on the date of the first interview. While effects of termination are set out, there is no provision dealing with the manner of termination.

The judge’s conclusion was:

‘All in all, having to consider, as I must, whether it is just and reasonable in the public interest to impose a duty of care on the Gloucestershire police whilst they were exercising their duties under the statutory codes of practice, I regret from the plaintiff’s point of view that I am not persuaded that it is thus just and reasonable. There is no duty of care in this case made out upon the pleaded facts, and to that extent the application [to strike out] must succeed.’

The sole issue is therefore whether in the circumstances the defendant owed the plaintiff a duty of care. In making his submissions on that issue, Mr Freeland for the defendant, adopted the approach of Steyn LJ in Elguzouli-Daf v Comr of Police of the Metropolis, McBrearty v Ministry of Defence [1995] 1 All ER 833 at 839, [1995] QB 335 at 345 (following Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605):

‘We must consider the ultimate question from three perspectives, namely (a) the foreseeability of the harm that ensues, (b) the nature of the relationship between the parties, usually called the element of proximity, and (c) the question whether it is fair, just and reasonable that the law should impose a duty of care.’

Foreseeability must be considered in relation to the claim alleged which in this case is post-traumatic stress, psychological injury and a stroke. The learned judge noted that no point had been taken in relation to appropriate medical reports.

Mr Freeland made his oral submissions on the basis that it was arguable that psychiatric harm was foreseeable and the case turned on points (b) and (c) identified by Steyn LJ. At the end of his submissions, Mr Freeland withdrew his concession on the ground that it might be misunderstood. Further particulars were declined. In my judgment, Mr Freeland was right to make his submissions on points (b) and (c). Forseeability of the risk of psychiatric harm to an untrained person present at the West interviews is in my view plainly arguable.

I do of course accept that the elements identified by Steyn LJ must be considered in relation to each other. Mr Denyer QC, for the plaintiff, did not propose a different approach to the question. I respectfully agree with the approach of Steyn LJ as appropriate to test whether, in present circumstances, a duty of care exists.

It is necessary to refer to the Codes of Practice under the 1984 Act, as did the judge. In doing so, it is important to have regard to the purpose of the codes. They are issued by the Secretary of State pursuant to his duty under s 66 of the 1984 Act (subject to approval by resolution of each House of Parliament under s 67(5)). Code C is the ‘Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers’. Its purpose is to provide a fair and effective procedure for that purpose. It is not to regulate the duties inter se under the civil law of all those involved in the procedures. The question is not one which arose in such cases as X and ors (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633, that is whether a common law duty to a person exists in parallel with the authority’s statutory obligations. The code is not concerned to create, negate or define statutory duties to appropriate adults.

Code C provides:

‘. . . 1.4 If an officer has any suspicion . . . that a person of any age may be mentally disordered . . . then that person shall be treated as a mentally disordered . . . person for the purposes of this code . . .

1.7 In this code “the appropriate adult” means . . . (b) in the case of a person who is mentally disordered . . . (i) a relative, guardian or other person responsible for his care or custody; (ii) someone who has experience of dealing with mentally disordered . . . people . . . (iii) failing either of the above, some other responsible adult aged 18 or over who is not a police officer or employed by the police . . .

3.9 If the person is . . . suffering from a mental disorder, then the custody officer must, as soon as practicable, inform the appropriate adult . . . of the grounds for his detention and his whereabouts and ask the adult to come to the police station to see the person . . .

3.12 The person shall be advised by the custody officer that the appropriate adult (where applicable) is there to assist and advise him and that he can consult privately with the appropriate adult at any time.’

Under the heading ‘notes for guidance’ it is stated:

‘1E In the case of people who are mentally disordered . . . it may in certain circumstances be more satisfactory for all concerned if the appropriate adult is someone who has experience or training in their care rather than a relative lacking such qualifications. But if the person himself prefers a relative to a better qualified stranger or objects to a particular person as the appropriate adult, his wishes should if practicable be respected . . .

11.16 Where the appropriate adult is present at an interview, he shall be informed that he is not expected to act simply as an observer; and also that the purposes of his presence are, first, to advise the person being questioned and to observe whether or not the interview is being conducted properly and fairly, and secondly, to facilitate communication with the person being interviewed.’

The plaintiff was requested to attend at interview as ‘some other responsible adult’ under para 1.7(b)(iii). I propose to consider the position of such a person, that is, a member of the public unrelated to the mentally disordered person and without experience of dealing with mentally disordered people. Different considerations may apply if a relative attends or, for example, a trained social worker employed by a local authority.

For the defendant, Mr Freeland submits first that the plaintiff had no special relationship with the police, as distinct from a special relationship with West, such that the police assumed responsibility for her welfare. The independent nature of her role positively precluded any assumption of responsibility by the defendant. Her task was to advise the defendant, to observe whether the interview was proper and fair and to intervene if she thought necessary. Because she was present to advise and assist the person detained and not the police, her special relationship was with him and not with them. Mr Freeland accepts that there can be an assumption of responsibility without police officers expressly saying that they assume responsibility but he submits that the relationship must be such that the assumption of responsibility must inevitably be inferred.

Mr Freeland also relies on the fact that the plaintiff was not remunerated for her services and the degree of control over her was negligible. She could not be forced to attend interviews and the absence of compulsion prevented the plaintiff from establishing an assumption of responsibility.

The defendant’s second submission, and it is the one which found favour with the learned judge, is that it was not fair, just and reasonable in the public interest for a duty of care to exist. It is submitted that the existence of the claimed duty would impinge on the defendant’s ability to investigate crime. The existence of a duty to the plaintiff could conflict with the performance of the duty to investigate crime, for example by requiring curtailment of an interview or by otherwise distracting officers from their investigation. The existence of the duty might lead to an undesirable diversion of resources. Further, the independence of the appropriate adult might be compromised. It is also submitted that, if there is a duty to the appropriate adult, as defined in the code, it would follow that a duty is owed to others at the interview, for example a relative of the person being questioned or his legal advisers. The law ought not to impose such responsibilities on the police. It is further submitted that the defendant can rely upon the silence of the code on the question of duties to the appropriate adult to refute the existence of a duty.

In my judgment this case must be distinguished from those, such as Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53, Alexandrou v Oxford [1993] 4 All ER 328 and Osman v Ferguson [1993] 4 All ER 344 in which members of the public who are victims of crime have sought unsuccessfully to establish a duty of care to them. The circumstances are different in that in the present case the police requested, albeit on a voluntary and unpaid basis, the services of the member of the public concerned.

The question whether a duty of care exists cannot be decided by reference to the Code of Practice alone. The code imposes requirements for the conduct of interviews but does not, and would not be expected to, answer the questions posed by this civil claim. What it does is to provide justification for the request to the plaintiff to attend interviews. It imposes a requirement on the police to create a situation in which a third party, and in this case an appropriate adult as defined in the code, attends interviews at the police station.

In this context, I do not find helpful the distinction between primary and secondary victims considered by the House of Lords in Page v Smith [1995] 2 All ER 736, [1996] AC 155 in the context of road traffic accidents. In the words of Henry LJ in Frost v Chief Constable of the South Yorkshire Police, Duncan v British Coal Corp [1997] 1 All ER 540 at 563, [1998] QB 254 at 278, following those of Lord Hope in Robertson v Forth Road Bridge Joint Board, Rough v Forth Road Bridge Joint Board 1995 SCLR 466 at 475, the plaintiff was an active participant in the events causing the psychiatric damage. The plaintiff was not of course a victim of crime. The police created the situation, as they were required to do, in which it was foreseeable that the plaintiff would be subject to the risk of psychiatric injury. It was not of their choosing that West was interviewed in the presence of the plaintiff and the requirement for the presence of the plaintiff (or some other appropriate adult) was a duty imposed upon them by the code. That duty is different in nature from the duty now under consideration. Their performance of the duty under the code may lead them to assume a duty to the appropriate adult present on their premises for the purpose of their interview. The code is the background against which the police created a situation in which the potential for a duty of care is present. There can be no doubt that, with respect to the state of their premises, they owed a duty of care to the plaintiff though that is not an important factor for present purposes.

In my judgment the defendant did assume responsibilities to the plaintiff in the inevitably stressful situation in which they had placed her and the element of proximity is established. They may not have wished to place her in the situation but, once they did, they assumed responsibilities towards her. If, for example, the person being interviewed was known to be subject to spontaneous outbursts of physical violence (not this case) the police would plainly assume a responsibility for the safety of a member of the public they had asked to be present at the interview. In relation to whether a duty of care exists, I see no sensible distinction between that situation and a situation in which the member of the public was to be subject to a most bizarre and horrific verbal scenario. When foreseeability is in issue, it does not matter whether the injury in fact sustained is physical, psychiatric or both (Page v Smith).

There is in my view no merit in the submission that the duty is avoided because the plaintiff was required to be independent of the police in the performance of her duties and to assist the man being interviewed. She was, from the point of view of the police, a necessary participant in the procedures. The independence required of her did not preclude a duty of care any more than it would to the operators of a factory in relation to an independent safety officer or to the promoters of a boxing match in relation to the referee. Neither does the possibility that an attachment of some kind may develop between the appropriate adult and the person being interviewed negate the existence of a duty, though it may influence the measures necessary for its discharge. It is not a complete answer to the claim that the appropriate adult is entitled to withdraw from the proceedings. It is foreseeable that, once appointed, that person may persist either out of a sense of public duty, or a wish to help the person interviewed, or both.

The existence of the necessary relationship between police and appropriate adult is reinforced in this case by the written agreement signed by the plaintiff and on behalf of the defendant. Undertakings were given to the police by her as to the manner in which her duties would be performed. The perceived need for the agreement and its formality give substance to the relationship, or as I see it, confirm the existence of a relationship in which a duty of care is owed. It has not been suggested that the plaintiff’s acknowledgement in the agreement that no express or implied duties are owed to her determine in context whether a duty of care exists. That must be decided upon the circumstances as a whole amongst which that acknowledgement, given as and when it was, is not a major factor.

I also consider that it is fair, just and reasonable that the law should impose a duty of care. The Code of Practice which requires the presence of an appropriate adult lays down procedures for questioning witnesses. There may be circumstances in which the presence of the appropriate adult, as with other parts of the code, does impose limitations on what the police can do. Indeed, she is expected to be more than an observer. The fact that their activities are circumscribed, in this and other ways, does not make it reasonable for the relationship created to be outside those in which a duty of care exists. The task the police are performing at interview, and a recognition of its problems, may bear upon the definition of the boundaries of their duty and upon whether they are in breach of it but should not negate the existence of the duty.

I fail to see how it is necessary or appropriate in the interests of good policing to deny the existence of a duty of care to this member of the public. The existence of the duty need not itself unduly constrain the interview in a situation which is intended by Parliament to be subject to constraint. It is not suggested that the duty involves a requirement not to ask embarrassing questions or questions which will provoke distressing answers. It does not require the police to prevent the situation becoming stressful but in their dealings with the appropriate adult to have regard to the stress which will inevitably be present. The court will define the nature and extent of a duty appropriate to the circumstances, including the need for the police to be able to question effectively. This is not the time to define the duty but it may involve having regard to the nature of the case when selecting an appropriate person and some degree of instruction and counselling. The possibility that, once appointed, the person may persist in her duties should be borne in mind.

It appears to me eminently fair, just and reasonable that the police should owe a duty of care to a member of the public whom they have requested to assist them in this way. Fairness requires that in my view. There is a public interest in members of the public coming forward as the plaintiff did and that public interest would not be promoted by a finding that no duty of care is owed. There is a public interest in dealing fairly with such members of the public.

In Swinney v Chief Constable of the Northumbria Police [1996] 3 All ER 449, [1997] QB 464 the court held that it was arguable that the police owed a duty of care to an informant who passed on information in confidence implicating a person known to be violent. The court considered the policy reasons for granting the police immunity from suit which emerge from the judgments in Hill’s case and other cases. However, Hirst LJ ([1996] 3 All ER 449 at 464, [1997] QB 464 at 484) stated that ‘public policy in this field must be assessed in the round . . . in order to reach a fair and just decision on public policy’. Peter Gibson LJ ([1996] 3 All ER 449 at 466, [1997] QB 464 at 486) stated that ‘the court must evaluate all the public policy considerations that may apply’. A person asked to act as an appropriate adult under para 1.7(b)(iii) of the code is for the reasons given owed a duty of care as is one who assists by acting as an informant, though the assistance is of a different kind and the obligations which arise will be different.

I find the notion that the police may request a member of the public otherwise uninvolved in the matter to perform the duties of an appropriate adult, without owing her a duty of care, repugnant. The situation created is an unusual one and the task of defining the scope and extent of the duty, and the standard of care required, may be difficult. It may be discharged by minimal or quite simple measures in many cases. Moreover in cases of alleged psychiatric injury, a plaintiff may often have difficulties in establishing causation.

What would in my view be quite wrong, however, would be to allow the question whether a duty of care exists in the present situation to be determined by the difficulty or otherwise of defining the extent of the duty or the standard of care which is required if the duty does exist. The single question for this court is that stated by the defendant and set out in the first paragraph of this judgment. It should be decided according to principle without anticipating real or imagined future difficulties and of course without inappropriate sympathy for either party. Nor, upon the question posed, should the duty be defined or put into compartments.

I am satisfied that there was the necessary proximity to establish a duty of care and that it is fair, just and reasonable to do so. The difficult questions which may arise in this case are not to be met by a denial of the existence of a duty of care. I would allow the appeal and decline to strike out the claim on the ground sought.

DISPOSITION:
Appeal allowed in part. Leave to appeal to the House of Lord refused.

SOLICITORS:
Montague Harris, Bristol; Dolmans, Cardiff.

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R v Schlesinger; R v Dunk; R v Atlantic Commercial Ltd (United Kingdom)

[1995] Crim LR 137, (Transcript: John Larking)

R v Schlesinger; R v Dunk; R v Atlantic Commercial Ltd
COURT OF APPEAL (CRIMINAL DIVISION)
[1995] Crim LR 137, (Transcript: John Larking)
HEARING-DATES: 28 July 1994
28 July 1994
COUNSEL:
G Carey QC, R O’Sullivan and M Evans for the Appellants; A Arlidge QC and D Day for the Crown

PANEL: LORD TAYLOR CJ, OGNALL, GAGE JJ

JUDGMENTBY-1: LORD TAYLOR CJ

JUDGMENT-1:
LORD TAYLOR CJ (reading the judgment of the Court): On 4 November 1985, at the Central Criminal Court, these three appellants were arraigned on an indictment charging two offences of exporting arms to Iraq illegally. Count 1 charged Dunk and the appellant Company together with others with being knowingly concerned in the exportation of arms with the intent to evade the prohibition thereon imposed by the Export of Goods (Control) Order 1978. Both Dunk and the Company pleaded guilty.

Count 2 charged all three appellants together with others with being knowingly concerned in the attempted exportation of arms with intent to evade the prohibition thereon imposed by the Export of Goods (Control) Order 1981. All three appellants pleaded guilty to that offence. They were sentenced as follows: Schlesinger was fined #3,000 on count 2. Dunk was fined #2,500 on count 1 and #10,000 on count 2. He was also ordered to pay #5,000 towards the prosecution costs. The company was fined #2,500 on count 1 and #5,000 on count 2. It too, was ordered to pay #5,000 towards the prosecution costs.

The appellant Dunk is a director of the defendant Company, Atlantic Commercial (UK) Limited, whose business is described as Defence Consultants. The appellant Schlesinger described himself as a consultant. The first count concerned a small consignment of arms manufactured by the Sterling Armament Company Limited, said to be samples, which were exported from the UK in 1982 under arrangements made by the appellant Dunk and the appellant Company. The consignment had been ordered and paid for by the Government of Iraq. Export of arms to Iraq was prohibited at the relevant time by the Export of Goods (Control) Order 1978. Despite the Iraqi order and payment, the goods were said to be destined for the Sudan. An End User Certificate (EUC) to that effect was provided to the Authorities. In fact, the transport of these samples from the United Kingdom was by a chequered route. They were sent on 24 April from the UK to Lisbon. On 23 May they went from Lisbon to Amsterdam. On 19 July, they went from Amsterdam back to Lisbon. Finally, on 27 July, they were transported from Lisbon to Iraq. The appellant Dunk admitted in interview that he went to Lisbon in May and was responsible for the samples going eventually to Iraq. On 14 June 1982, the appellant Dunk wrote a letter to one Bianco, the sales director of Sterling (who was also convicted of an offence) which began as follows:

“Referring to the order that you sent to Heathrow of samples for Khartoum (!), we believe they may arrive this week at their final destination”.

The second count related to a later consignment of 200 Sterling 9mm. machine guns plus ammunition and ancillaries. They were awaiting shipment from Greenwich to Aquaba when they were seized by Customs and Excise on or about 18 February 1983. Again, these armaments had been ordered by Iraq and were paid for by Iraq. This time, it was said that the destination was Jordan and the EUC so stated. As to this, the appellant Dunk, on 14 June 1982, wrote to Sterling as follows:

“Because of the difficulty in obtaining an export licence for Iraq, the Jordanian Embassy agreed to purchase the goods on their behalf, but there has been apparently some trouble about the size of the reward to be paid by Iraq for the issue by Jordan of an EUC and this has delayed matters”.

Later in the same letter, the appellant Dunk said he would be sending the appellant Schlesinger to Sterling to deal with the terms.

Following the seizure of the consignment of 200 machine guns, the Customs authorities visited the homes and office of the appellants. Both Mr Dunk and Mr Schlesinger were interviewed. Mr Dunk admitted that the samples had gone directly to Iraq, that he knew this at the time and that he had been involved in the transport. He had hoped to receive a subsequent order for 2,000 weapons as a result of the shipment.

In the course of his interview, Schlesinger was asked about the count concerning him. The following exchange occurred:

“Customs Officer:Are you saying that Major Dunk did not discuss the 200 mark V’s with you?

Schlesinger:Yes, only as a Jordanian transaction.

Customs Officer:Did you ever discuss it as an Iraqi deal?

Schlesinger:Not really. We joke about these things. My reaction was, yes, a Jordanian transaction but only as a smoke screen. We know everything that goes to Jordan ends in Iraq. Who are we to judge?”

Following the seizure and the interview, there was considerable activity which it is unnecessary to set out in detail, involving correspondence and meetings between the appellant Dunk, his solicitor and the Embassies of both Jordan and Iraq. It is sufficient to say that there emerged a story that although Iraq had ordered and was paying for the two consignments of armaments, they were doing so in order to make gifts to Sudan and Jordan respectively. This, so the story ran, was nothing out of the ordinary. The gifts were being made, to quote one of Mr Dunk’s letters, as a “little present as a token of their continuing friendship etc”. Sir Basil Rhodes, Mr Dunk’s solicitor was assured by the Iraqi Embassy that the first consignment was a present for the Sudan and was assured by both the Iraqi and the Jordanian Embassies that the second consignment was similarly a present to the Jordanian army. Further assurances were given in January/February, July and October 1985 that witnesses would be made available from both Embassies to confirm this story in Court.

The appellants’ trial was fixed for 4 November 1985. It was only when Sir Basil Rhodes sought to take statements from the promised witnesses that he found a change of attitude at the Embassies. This culminated in his being told that authority to provide the witnesses had been withdrawn.

The appellants had, at a pre-trial review on 30 September 1985, clearly indicated that they would be contesting the case, the basis on which they would be doing so and that they intended to rely on witnesses from the two Embassies.

On the day of the trial, the appellants, who were represented by very experienced leading counsel, found themselves faced with a formidable prosecution case as summarised above, and bereft of the witnesses upon whom they had intended to rely. It seems that an indication was given to them that whether they pleaded guilty or were convicted there would be no custodial sentence. In those circumstances, the appellants pleaded guilty and were fined the amounts specified above.

The defence were aware before the trial that Customs and Excise officers had visited the Embassies on 18 February 1983. Inquiries as to what transpired on that occasion were ultimately answered by Customs and Excise who admitted that on 21 February 1983, following the visit, the Iranian Embassy told their officers that the 200 machine guns were a gift to Jordan. However, it was only as a result of evidence to the Scott Inquiry on 15 June 1993, eight years after the trial, that it emerged there had been further contact with the Embassies shortly before the trial on the initiative of both Customs and Excise and the Foreign and Commonwealth Office (FCO).

The documents before this Court which were not disclosed at the time of trial, include the following. On 25 February 1983, Mr M F Knox, Assistant Chief Investigation Officer of H M Customs and Excise wrote to Mr Wogan of the Middle East Department of the FCO. The letter began:

“You asked for a copy of my officers reports concerning their visits to the Iraqi and Jordanian Embassies. These are enclosed.

You will see that, given time, the two Embassies have put their heads together and produced a united front with a story which is neither credible nor supported by the documentary and oral evidence we now possess.

My only concern is the possible effect this story may have in future criminal proceedings should the defence lawyers decide to obtain the agreement of Embassy personnel to appear as witnesses. It may be prudent for us to confront the Ambassadors with the contradictory evidence in our possession before such an eventuality becomes fact in the hope that this will deter them from taking a potentially embarrassing course of action”.

There is an internal minute dated 1 October 1985 from Mr G H Boyce of the Middle East Department of the FCO to Mr Harding (now deceased) referring to information from a Mr Cassey of Customs & Excise. Paragraph 2 of the minute reads:

“Customs & Excise said that the evidence so far presented by the Embassy personnel was conflicting. If they waive their immunity and were prepared to stand as witnesses, then they would have to withstand cross-examination as well. Given H M Customs & Excise belief that the result of this cross-examination could be potentially embarrassing to both Embassies, it was Mr Cassey’s view that the interests of the Embassies would not be served by members of the Embassy staff agreeing to appear for the defence”.

A copy of that minute was sent to Mr Pigott of the Near East and North Africa Department of the FCO (NENAD) who annotated it with a minute in his own hand, addressed to Mr Nixon, also of NENAD. It began:

“MED are contemplating having an informal word with the Iraqi Ambassador to point out the possible pitfalls of waiving immunity”.

Next, there was another minute from Mr Pigott in his own hand to Mr Nixon dated 2 October. The relevant part reads as follows:

“MED have had an informal word with the Iraqi Ambassador to say (a) this is none of the FCO’s business, but (b) it would perhaps be best if the Ambassador did not agree to waive immunity.

I am not sure that we need to make the same noises to the Jordanians….but if you think it appropriate I could have a word with counsellor Kadi.”

Mr Nixon’s response to that is appended in his handwriting and reads:

“Mr Pigott.

I confess to innocent reluctance to connive at impeding the course of justice! But you might gently enquire when talking to Kadi on other business”.

The document is further annotated with a comment, apparently in Mr Pigott’s writing:

“Spoke to Mr Kadi who was grateful and agreed with C and E’s advice”.

By agreement there has been put before us written evidence from the authors of some of the minutes quoted above. Mr Pigott, in answer to a question from the Inquiry: “Do you accept that, in so doing you are conniving at impeding the course of justice?” Reply:

“I accept that this would be a reasonable construction to place on my action, if, by so doing, I would be frustrating the intention of the prosecuting authority to bring a prosecution or secure a conviction. That, however, was not my intention”.

(Exactly so! we would interpolate).

“I repeat that, in passing on that message at the time, I was acting in good faith. After all, I was acting at the behest of the prosecuting authority who, I might reasonably have concluded, had cleared their lines from the legal standpoint. There is no question of my seeking to impede the course of justice”.

Again, with agreement, we have before us the evidence of Sir Stephen Egerton given to the Scott Inquiry on 15 June 1993. Sir Stephen was at the relevant time Under Secretary for the Middle East. After the minutes summarised above had been drawn to his attention, Lord Justice Scott put it to Sir Stephen that what happened was disgraceful and asked “Do you find anything to object to in that adjective?” Sir Stephen replied: “I would say it was a bad show”.

We prefer the plain adjective used by Lord Justice Scott. What was happening was that senior officers in the FCO at the behest of the prosecuting authority, Customs and Excise, were urging the foreign embassies to claim diplomatic immunity and thereby deprive the defendants in a criminal trial of witnesses they wished to call and had been promised would be available. It is clear that their efforts were successful resulting in the defendants being deprived of witnesses they wished to call.

In our view, it is nothing to the point that the story which the Embassies had been prepared to support would take a lot of swallowing. That was a matter for the jury. Had witnesses been available to support that story, it may well be that cross-examination would have discredited them and sunk the defence without trace. But we have no doubt that by seeking to put those witnesses in baulk and succeeding in doing so, those involved were improperly interfering with the course of justice. In addition, the failure to disclose what had taken place kept the defence in ignorance of the impropriety and thus prevented them from raising the matter with the trial judge.

Mr Arlidge QC, on behalf of the Crown has, as one would expect, adopted a frank and realistic approach. He concedes that the conduct of the prosecuting authority and the FCO were capable of being an abuse of the process of the Court. He said: “It is not my role to defend the indefensible”. He further concedes that had counsel for the Crown known of the approach by the FCO to the Embassies at the time of the trial, they would have disclosed that material to the defence. Nevertheless, he seeks to resist this appeal.

Mr Carey submits that there was here, an abuse of process arising from two separate and serious improprieties on the part of the prosecuting authorities. First, he submits that Customs and Excise through the FCO deliberately interfered with potential defence witnesses or manipulated affairs through the foreign embassies so as to prevent defence witnesses, who would otherwise have given evidence in the appellants favour, from being allowed to come to Court at all. They thereby deliberately prevented the appellants from having a fair trial.

Quite separately, the approaches which were made to the embassies and the documents which have been summarised above were not disclosed to the defence so that those acting for the appellants were wholly unaware at the time of the trial and for eight years afterwards why the witnesses, upon whom they had intended to rely, were not available. Had the defence known what had in fact happened at the time of trial they could have drawn the matter to the judge’s attention. It is submitted that the conduct of the prosecution had been such that the judge would in all probability have stayed the proceedings before arraignment as an abuse of process.

It was common ground in the argument before us, that in regard to abuse of process, the Court has recognised two different categories. First, the Court may stop a prosecution for abuse of process if there has been prejudice to the defendant or a fair trial cannot be held. Thus, in R v Derby Crown Court ex parte Brooks 80 Cr App Rep 164, at page 168, Sir Roger Ormrod said:

“The power to stop a prosecution arises only when it is an abuse of process of the Court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the Court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability, the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable … the ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and to the prosecution….”

Secondly, however, there are cases where the conduct of the prosecution has been such as to justify a stay of proceedings for abuse of process regardless of whether a fair trial might still be possible. Thus in R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42, [1993] 3 All ER 138 Lord Griffiths, after referring to ex parte Brooks (supra) and other cases, went on at page 61 H of the former report to say:

“Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the Court is to have the power to interfere with the prosecution in the present circumstances, it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law……if it comes to the attention of the Court that there has been a serious abuse of power, it should, in my view, express its disapproval by refusing to act upon it.”

That was a case in which the Authorities had brought the appellant back to this country to face trial in defiance of the laws of the State where he was found, in breach of international law and in disregard of available extradition processes.

We should cite two further passages from ex parte Bennett. At page 62 F, Lord Griffiths said:

“The Courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution”.

Lord Lowry, at page 74 G said:

“I consider that a Court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the Court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a Court to try a person who is charged before it with an offence which the Court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the Court’s disapproval of official conduct. Accordingly, if the prosecuting authorities had been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the Court ought not to stay the proceedings merely ‘pour encourager les autres’.”

Again, in R v Croydon Justices ex parte Dean [1993] QB 769, 98 Cr App Rep 76, the Divisional Court quashed a committal for trial where the defendant had been given to understand he would not be prosecuted but would be used as a prosecution witness. After assisting the police for some five weeks, he was in fact prosecuted. Although it might have been possible to hold a fair trial by excluding any admissions he had made during the five-week period, the Court decided the committal should be quashed. Staughton LJ said at page 84 of the latter report:

“In my judgment, particularly having regard to the fact that Dean was only 17 at the time (although not, as he has since admitted, a stranger to crime), it was clearly an abuse of process for him to be prosecuted subsequently. The impression created was not dispelled for over five weeks, during which period he gave repeated assistance to the police. This case can, I think, be regarded as quite exceptional. The Justices were bound to treat it as one of abuse of process”.

Mr Carey submits that in the present case, the conduct of the prosecution was such that the Court would have stayed the proceedings without more, had it known of what had occurred. The proceedings were not stayed, he submits, because of the further impropriety that the prosecution did not disclose to the defence that which would have enabled them to make the application. Therefore the convictions should be quashed without consideration of prejudice.

Secondly, Mr Carey submits that the conduct of the prosecution did in fact prejudice the appellants, so that if that had been a necessary ingredient here, the appellants can establish it. The prejudice lies first, as already indicated, in the inability of the appellants advisers to make an application to stay the proceedings because of the non-disclosure by the prosecution of what had occurred. Secondly, although it is true that the appellants pleaded guilty, it is clear that they had intended to contest the case, that they only decided to plead guilty when the evidence they were to rely upon failed to materialise and when it had been indicated to them that there would be no custodial sentence. Mr Carey submits that they were prejudiced in that they were deprived of the opportunity to consider their pleas in full knowledge and appreciation of the whole of the facts. It may well be that, deprived of the expected evidence from the embassies, the prospects of a successful defence were so diminished that, balancing the cost of contesting the case unsuccessfully against the probable fines to be imposed, the decision was made to plead guilty which would otherwise not have been made.

Mr Arlidge submitted that the class of case in which the court would grant a stay for abuse of process without prejudice being shown or where a fair trial could still take place, is very small and specifically confined. He said it consisted only of cases in which the defendant could not have been brought before the Court at all had not the prosecution been guilty of impropriety. Thus, in Bennett [1994] 1 AC 42, [1993] 3 All ER 138, the defendant would not have been brought before an English Court had he not been kidnapped improperly in South Africa. In ex parte Dean [1993] QB 769, 98 Cr App Rep 76, the defendant would not have been brought before the Court had not the prosecution reneged on their promise to him. However, although those two specific cases can be brought under the small umbrella erected by Mr Arlidge, we do not consider the class can be so confined. The dicta we have cited from Bennett are couched in wide terms of principle which do not justify Mr Arlidge’s narrow test.

Mr Arlidge also reminded us of the warning given by Lord Lane CJ in Attorney General’s Reference (No.1 of 1990) [1992] 1 QB 630, [1992] 3 All ER 169 at page 643 G of the former report:

“Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust”.

However, in our judgment the machinations in this case to prevent witnesses for the defence being available coupled with the non-disclosure of what had been done, constituted such an interference with the justice process as to amount to an abuse of it. We have little doubt that if the trial judge had been told witnesses for the defence had been prevented from coming to Court at the initiative of the prosecuting authority, it is highly likely that he would have stayed the proceedings unless there was any possible way of enabling those witnesses to attend after all. Even if the story the witnesses would have supported was one the jury would have been likely to reject, it was the appellants’ right to put it forward if they wished. It was for the Court and in particular a jury, not an assistant Chief Investigation Officer of Customs and Excise to decide whether the story was (in his words) “neither credible nor supported by the documentary and oral evidence we now possess”.

If we are wrong in regarding this case as one which involved an abuse of process regardless of whether a fair trial could still take place, we consider Mr Carey’s second argument is sound. There was prejudice here. Whilst the Court is usually slow to set aside pleas of guilty which have been made unequivocally, where they have been made in ignorance of malpractice having operated to the defendants’ disadvantage, different considerations may apply. We consider Mr Carey’s exposition of the prejudice in the present case is well founded. Accordingly on that ground, if necessary, we would again hold that there was an abuse of process.

For these reasons, we came to the conclusion that the appeals of each of the appellants must be allowed and we quashed the convictions.

DISPOSITION:
Appeals allowed, convictions quashed.

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