Cutts, R v

On 14^th May 2001 the appellant was convicted on a single count of murder after a 10 day trial before the Honourable Mr Justice Crane at Nottingham Crown Court, and was sentenced to life imprisonment. He now appeals against conviction by leave of the single judge on ground 2 in his notice of appeal, and renews his application for leave to appeal on ground 1. Ground 2 is that the judge should have withdrawn the case from the jury at the conclusion of all the evidence, or after hearing the evidence of an expert, Professor Tattersall, called by the defence. Ground 1 is the submission that the judge should have withdrawn the case from the jury at the conclusion of the Crown’s case. There is a considerable linkage between the two grounds, and we think it appropriate to grant leave to pursue ground 1 as well as ground 2.

The death of the deceased, Dawn Rosemary Berntsen, born 29^th August 1951, was reported to the police by the appellant a little after 4.00 a.m. on Friday, 4^th August 2000. She lived in a first floor flat at 18, Heaton Court, St Anns, Nottingham, but her body was found in a flat at 5 Ritson Close, St Anns, Nottingham, of which a James Murphy was the tenant. The deceased was a diabetic, and the immediate cause of her death was the onset of diabetic ketoacidosis. That is a condition which develops in diabetics whose pancreas fails to produce and who fail to administer to themselves sufficient insulin to promote the uptake of glucose from their blood into their body cells. Such a failure leads to an insufficiency of glucose in the body cells and excesses of glucose and of ketones in the blood. Ketones are acidic and their presence leads to nausea and vomiting and is ultimately toxic to the heart. A post-mortem examination by Professor Whitwell, a Home Office pathologist, showed that the deceased had suffered head injuries, some days before her death. It also showed marks consistent with her body having been dragged. Examination of the deceased’s flat led to the discovery of her blood on a living room chair, on wallpaper above and in the area of the door, as well as on a wine bottle bearing the appellant’s fingerprints in such a position as to show that he had held the bottle by the neck as one would if using it as a weapon. The appellant’s clothing was also found to be spattered with the deceased’s blood.

The Crown case was that the onset of ketoacidosis had been brought about by the infliction by the appellant on the deceased some days before death of the head injuries using the wine bottle. In order to convict the appellant of murder, the jury must have been satisfied (a) that the appellant inflicted the injuries which the deceased was found to have sustained, (b) that, when doing so, he intended to cause her some really serious bodily harm (the Crown did not allege that he intended to kill her), (c) that he was not provoked into inflicting them and (d) that the injuries caused the onset of ketoacidosis and so death. On this appeal, it is this last pre-condition, causation, that remains in issue.

James Murphy had known the deceased for 7-8 years. He was an unemployed alcoholic and used to drink with the appellant. The appellant sought to blame Murphy for conduct which the Crown attributed to the appellant. The jury must have accepted Murphy’s evidence in that regard, and it is therefore on Murphy’s evidence that we shall focus primarily. It was, however, common ground between Murphy and the appellant that the appellant used to give his benefit book to the deceased for safe keeping. The appellant’s practice was to recover the book on Sundays in order to be able to draw benefit on Mondays. The appellant’s evidence was that the deceased had stayed with him over the night of Friday, 28^th July 2000, before walking home with her dogs on the Saturday morning, a walk which would take him about 20 minutes or her about 40 minutes. She was limping a bit and said that her foot was hurting. It was also common ground that, on Sunday, 30^th July 2000, the appellant had rung Murphy to say that he could not get hold of the deceased. Murphy had telephoned the deceased, who had said that she had been out walking her dogs. He told her to stay in, so that the appellant could try again. That evening, in order to get the police to go to the deceased’s flat, the appellant telephoned the police and told them, falsely, that a woman had been assaulted there. Shortly before midnight Sergeant Riley, with other officers, therefore visited the deceased’s flat. They found it in a squalid state, but the deceased was asleep in her chair, with no sign of injuries. She appeared to have wet herself. She was indignant to be woken and to find her flat full of officers, but she came downstairs with them to check on her dogs. They made a report to social services. Another police officer called at the deceased’s flat at about 9.00 a.m. on Monday, 31^st July 2000, found her awake in her chair, and stayed half an hour talking with her and trying to persuade her to get medical attention or to leave the flat. At about 10.00 a.m. on the same day, according to a neighbour, Robert Shannon, the deceased was standing in her garden, shouting at her dogs, and, although he could only see her head, she looked normal as far as he could judge.

That Monday evening the appellant again telephoned Murphy to say that he still had not had any contact with the deceased. Later, he went round to Murphy’s flat. By then, according to Murphy, the appellant was “mad” with the deceased, because she had his book, and said that he would kill her. The Crown did not rely on that as a serious statement. The appellant was under court order not to go to an area which included the deceased’s flat, so for that reason, according to Murphy, he asked Murphy to go with him to the deceased’s flat, and they went in the early hours of the morning of Tuesday 1^st August. The appellant’s case was that they only went there because Murphy was owed money. Both had had something to drink. According to Murphy, after the appellant had asked where his book was, the deceased said that she did not know, and, on looking, could not find it. (It was found, after the deceased’s death, in her flat on a shelf, with the current payment still uncashed.) The appellant accused her of having people around, who had stolen the book, and, when she denied this, started hitting her with his fist and then on the back of the head about six times with the bottle by what he called “mainly taps”. She kept saying: “Leave me alone”, and Murphy kept on telling the appellant to stop, but he took no notice. The deceased was “in a bad way”. The appellant wanted her to come to Murphy’s house. Murphy said that she needed an ambulance, but the appellant said that, if she went to hospital, questions would be asked. The appellant’s account, which the jury must have rejected, was that it was Murphy who assaulted the deceased with the bottle, after trying unsuccessfully to pick up her purse.

Murphy’s evidence was that the appellant then dragged the deceased downstairs by the hair, and that, although she walked a bit, he also dragged and carried her over his shoulder to Murphy’s flat. She lost one of her trainers in the process. When the deceased said that she wanted to go back, Murphy said that she would end up getting him jailed. At Murphy’s flat, the appellant was still slapping her, while she attempted to fend him off, and asking her about his book. Murphy ran a bath, and the appellant dragged the deceased upstairs and put her into it with her clothes on. Murphy said that she looked in a bad way, with cuts around her eyes and on her forehead, which looked worse than cuts on the back of her head. Her clothes were put in the washing machine and she went to bed.

According to Murphy, on the morning of Tuesday, 1^st August 2000, the appellant bought alcohol and an energy bar which he gave to the deceased; and both Murphy and the appellant went to check on the deceased, Murphy heard her tell the appellant to leave her alone and the appellant came down and said that he had been slapping her because she would not get up. The appellant realised that he could not get a taxi to take her home in the state she was in. The benefit book was reported as lost, and a substitute giro obtained by the appellant. Murphy checked the deceased from time to time, and gave her water on one occasion, and heard her snoring at times other than those when he physically checked her. The medical evidence was that that could be as consistent with her going into a coma as with ordinary sleep. Murphy said that the deceased did not leave the flat, although the appellant’s evidence (though he had said nothing to this effect in interview) was that he took her to his own address and then returned with her; he said also that she ate some fish that day and seemed a lot better than she had in the early hours.

On Wednesday, 2^nd August, the deceased remained at Murphy’s flat, while Murphy and the appellant undertook various activities. According to Murphy, the deceased was “mumbling or muttering”; he was himself too frightened to contact a doctor, but he said that at one point the deceased also said that she did not want to go to hospital. Murphy told a lie to the deceased’s neighbour, Robert Shannon, about her having gone away. On Thursday, 3^rd August, the deceased remained at Murphy’s flat. Murphy went out at about 5.00 p.m., and on returning found her asleep and snoring. On a later check he found her dead, and, he said, contacted the appellant by telephone to tell him. The appellant admitted the telephone call, but denied that anything was said to the effect that the deceased was dead. On the contrary, he said that, when he went round to Murphy’s flat at about 10.00 p.m., she was still snoring, and it was only shortly before the call to the police at 3.50 a.m. on the Friday morning that Murphy had found her dead. But, when the ambulance arrived at 4.16 a.m., rigor mortis was already found to have set in. Both Murphy and the appellant said that they thought that the deceased had fallen downstairs – this being, as both later admitted, a lie. According to Murphy, the appellant had rehearsed him in this lie, between the time of actual death and the call to the police.

The critical issue arising at trial against this factual background was whether or not the physical injuries, which the jury must have been satisfied had been inflicted by the appellant on the deceased, were a substantial cause of her suffering fatal ketoacidosis when she did. On this issue, the Crown relied on evidence from Professor Whitwell, the pathologist who undertook a post mortem on 4^th August 2000, as well as from Professor Forrest. The defence called as experts Dr Al-Sarraj and Professor Tattersall, and Dr Cary who had, together with Professor Whitwell, undertaken a second post mortem on 15^th August 2000. All these experts were experienced and distinguished in their differing fields. Professor Whitwell was Professor of Forensic Pathology in the University of Sheffield, and as such a specialist in injuries from suspicious causes and neuropathology, including brain injuries. Professor Forrest was Professor of Forensic Toxology as well as being a medically qualified clinical chemist and, he said, entirely familiar with the diagnosis, treatment and natural history of diabetes (and, as it happened, a diabetic himself). Dr Al-Sarraj was a consultant neuropathologist in the Department of Neuropathology in King’s College, London. Professor Tattersall was until 1998 consultant physician and from 1990 to 1998 Professor of Clinical Diabetes in Nottingham University Hospital. He had some 30 years experience of diabetes, in which he was an acknowledged leading expert, and retired at the age of 55 in 1998 to devote himself to, in particular, its history. Dr Cary was Director of the Department of Forensic Medicine for Guy’s, King’s and St Thomas’s Hospitals.

At the time of Professor Whitwell’s post mortem on 4^th August 2000 the deceased weighed no more than 4½ stone. Professor Forrest in his oral evidence pointed out that there could have been some weight loss by dehydration in the process of dying of ketoacidosis and after death. She was extremely thin and wasted. She had the head injuries already mentioned, all caused at about the same time, some inferentially by some weapon, others consistent with a hand or fist blow. She had bruising and abrasions on her arms and hand consistent with self-defensive action and on her legs, front and back consistent with dragging or falling. The injuries that she had suffered would not themselves have caused her death. In a statement dated 4^th October 2000, summarising her post mortem findings, Professor Whitwell gave as the cause of death: “Head Injury associated with diabetic keto-acidosis”. Professor Whitwell’s area of specialism is head injuries, rather than untreated diabetes, and in her evidence she referred to Professor Forrest as the Crown’s expert on diabetes to explain the association between the deceased’s head injuries and ketoacidosis.

Professor Forrest had prepared two reports. The first dated 30^th October 2000 concentrated solely on the primary cause of death, the deceased’s ketoacidosis. The second, dated 17^th January 2001, was prepared after a joint conference between Professor Whitwell and Professor Forrest and counsel on 15^th January 2001. In it, Professor Forrest put forward formally for the first time what became the Crown’s detailed case involving the head injuries. He explained that it is in modern times exceptional to see diabetes sufferers as wasted as was the deceased. Her severe wasting was the result of insufficient production and administration of insulin, leading to her muscle and body fats being converted over a period into glucose and ketones in the blood stream. It was clear (from her medical records) that the deceased must have survived for a substantial period without administering any insulin. It was in Professor Forrest’s opinion “entirely likely that the additional metabolic stress produced by her head injury finally precipitated death”. The mechanism put forward was that the stress would release hormones, including adrenoline and cortisol, which would stimulate the production of additional glucose from muscle and liver and antagonise, or neutralise, the effects of the little insulin that her pancreas must have been capable of producing.

In his evidence, Professor Forrest elaborated on this, explaining that it was based on a “holistic” view of the medical and other analytical evidence. He said that, until she suffered her head injuries, the deceased was evidently “coping” with daily life, walking about, eating and drinking for herself and able to lead a relatively independent life, despite her severe wasting. She would at some point have succumbed to ketoacidosis, but he found it difficult to believe that she could go from functioning and being in a relatively stable state to being dead in two days. She must have had some muscle left in order to be able to function as she did. That and her liver could be sources of glucose under the influence of the hormones produced by the stress to which the injuries inflicted on her would have led. Professor Forrest suggested in the course of oral evidence that, in someone as wasted as the deceased, the gut could be a third source playing a proportionately greater role in providing additional protein stimulating her ketoacidosis.

Professor Forrest had a postgraduate degree in law, and accepted that he was aware of the standard of proof required in a criminal prosecution, which was, he said, that “You have got to be sure, sure, sure”. Asked about the conclusion in his second report, using the words “entirely likely”, and whether he was saying that it was entirely likely that his hypothesis was right, he answered:

“I would – I would agree with you that I am not saying that it is – you can be absolutely sure that this is the mechanism of her death. What I am saying is that it is the most probable explanation of the mechanism of her death.”

In re-examination, he mentioned, as other explanations that he had considered viral encephalitis, tuberculosis and the possibility of other infection, and it was at this point that he said that he found it “very difficult to believe” that someone could go from functioning to being dead in two days. The judge discouraged counsel from asking Professor Forrest directly whether it would on his findings be appropriate to draw a conclusion as to the necessary degree of sureness that his explanation was the right one, saying that that was a matter for the jury. As to tuberculosis, Professor Forrest went on to point out that this was bacterial, not viral in origin. As to viral encephalitis or other brain infections, Professor Forrest accepted that his opinion of the cause of death could be affected if Dr Al-Sarraj said that he had found recent infections in the brain tissue. But Professor Forrest made clear that viral encephalitis was a matter for a neuropathologist, although he knew enough to add that microglial nodules could result from head injuries as well as viral encephalitis. Professor Whitwell in her evidence said that she had noticed the odd possible microglial nodule, but had not interpreted them as viral encephalitis. They were in her view too mild to be acute and could also have been there for months or years.

The judge in rejecting the defence submission that the Crown had failed to adduce any or any sufficient evidence of causation fit to go before a jury observed, correctly, that there was at that stage (Dr Al-Sarraj being a defence expert) no evidence supporting any case of viral encephalitis. The choice was therefore between the natural progression of ketoacidosis and ketoacidosis precipiatated by stress consequent on the physical injuries inflicted on the deceased. He said that the jury if it accepted the evidence of Murphy could properly conclude that there was a marked difference between the deceased’s state before and after her injuries, and that was consistent with Professor Forrest’s explanation and “could be regarded as a remarkable coincidence if the injuries played no part in the timing of her death”. As to Professor Forrest’s statements regarding the degree of certainty with which he held his views, the judge said: “Scientific experts do not necessarily phrase their opinions in the language of being sure. It does not follow that a case relying on that opinion cannot be left to the jury …”. A jury properly directed could, in the judge’s view, properly convict on the factual and expert evidence before them.

We agree with the judge here. First, the issue of causation was one for the jury to decide. The judge summed up accordingly in terms, to which no criticism is attached. It is true that, in this case, the issue of causation was dominated by the expert evidence. Nonetheless, the jury had not merely to evaluate the views of Professors Forrest and Whitwell on matters within their differing expertise, but to do so also against the background of certain matters of basic fact, the strength of which the jury alone could properly decide. In particular, although Professor Forrest said that he was taking a “holistic” view of the situation, in other words looking at both the factual and the medical aspects, the jury heard extensive evidence about and was entitled and bound to form its own conclusions regarding the extent of any change in the deceased’s functioning after the injuries she sustained. Second, we do not regard the terms in which Professor Forrest expressed his views as being inconsistent with a level of sureness about causation justifying a conviction. The level required is not “absolute” sureness, and Professor Forrest’s phrases “entirely likely” and “most probable” are not legal terms of art and were counterbalanced by a statement that it was “very difficult” to believe in a theory that natural development of ketoacidosis was the cause. We therefore consider that the judge was right to refuse to accede to the submission that there was no case to answer made at the end of the Crown’s case.

We turn to the second ground of appeal, which is that the judge should have acceded to the defence submission that the case be withdrawn from the jury after all the evidence had been heard. The basis for this submission was that expert evidence called by the defence demonstrated that there was no case fit to be left to a jury, or upon which a jury could safely convict. The Crown submits that this ground of appeal stands or falls with the first ground. We do not agree with that submission. There are cases in which it becomes clear during the defence evidence that the judge should prevent the matter proceeding further, and where, if it is allowed to proceed further, a verdict adverse to a defendant must be regarded as unsafe.

Here, the defence experts took very different views from those called by the Crown. The differences related to two particularly important areas: (i) the mechanism by which Professor Forrest suggested that the injuries led to the onset of ketoacidosis and (ii) the possibility that viral encephalitis caused the onset of ketoacidosis. As to (i), Professor Tattersall expressed absolute certainty that the deceased’s liver could not serve as a relevant source of glucose under stress. He had also never heard of a suggestion previously that the gut might do so, and thought that “if such a process does occur, and it may do, it would have to be a very, very minor process”. However, he accepted that the process by which muscle would be converted to glucose under stress would still have been operative, but he considered that the deceased would only have had a very low muscle bulk left. In this situation he thought that the process would have been “severely restricted”, adding that no scientific evidence could be produced on the point, because, so far as he was aware, no research had been done on it.

Professor Tattersall was questioned about the effects of stress in increasing the level of serum cortisol in blood. He agreed that pyschological stress could be expected to give an increase of 200 namomils per litre. The stress involved in mental arithmetic and playing a child’s electronic game would produce at least the same increase. A severe heart infarction or attack with very severe pain would, on the other hand, give an increase of some 1000 namomils per litre. However, although he said he did not know what level of increase might result from being hit over the head with a bottle, because no such experiment had (for obvious reasons) been undertaken, he went on later to say that he would have thought that being hit over the head with a bottle was rather low down in the scale when compared with a heart attack, and that although “it may seem extraordinary” and it was “just an opinion” he thought that it would be in the same league as doing mental arithmetic. Towards the end of his cross-examination, Professor Tattersall said that he would be “very surprised” if the deceased could walk for 45 minutes on the morning of Saturday, 29^th July. He did not suggest that the injuries she suffered in the early hours of Tuesday, 1^st August 2000 could not have affected her ketoacidosis, but, if they did, “only to a very minor degree”. Asked more specifically whether an attack such as then occurred would be likely to precipate the onset of or exacerbate ketoacidosis, he said:

“Well, I mean clearly since I say that the alleged assault didn’t have a nil effect, then once, having said that, I must agree that if it had some effect, that that might hasten death, but what I’m saying is that this was --- if there was any effect, in my opinion, this was only a matter of hours, not anything more. That’s what I feel.”

In re-examination, he reiterated that he could not be sure that there was an effect.

The jury thus heard and had to evaluate two very different opinions from the experts on each side. If the jury was persuaded by Professor Forrest, then the position remained as it was at the close of the Crown case. We have not heard either witness. We cannot put ourselves in the jury’s position in evaluating their oral testimony. There are however, even on the transcript, matters which could in our view justify a preference on the part of the jury for the views of Professor Forrest. First, Professor Tattersall’s theory of natural decline, without the infliction of the injuries playing any significant part, was associated with scepticism about the possibility of the deceased walking for 45 minutes on the morning of Saturday, 29^th July. But it was the appellant’s own evidence that she had undertaken such a walk. Further, there was evidence indicating that she had taken her dogs out for a walk again on the next day, Sunday, 30^th July, that she had walked downstairs with the police officer shortly before midnight that evening, and that she had been seen in her garden shouting at her dogs in the morning of Monday, 31^st July. The jury could very well have thought that Professor Tattersall’s theory was significantly undermined, if it accepted the evidence regarding these activities. Second, Professor Tattersall’s evidence equating the stress induced by the injuries suffered by the deceased (or at least “being hit on the head with a bottle”) with the stress induced by mental arithmetic may have struck them as very unlikely to be correct, even though no specific study had been undertaken in this area. Professor Tattersall himself conceded that “it may seem extraordinary” but did not offer any reasoning for his opinion drawing such an equation. In these circumstances, we do not consider that the judge was under any obligation to withdraw the case from the jury on the basis on Professor Tattersall’s evidence, or that it renders the jury’s verdict unsafe.

We turn to the evidence given by Dr Al-Sarraj, who detected the presence of viral encephalitis. Dr Al-Sarraj suggested in his report that this viral encephalitis “could have caused neurological manifestations including epileptic fits and possible responsible [sic] for the death”. In his oral evidence, he put it forward as a possible cause, by itself, of the death. However, he accepted, as a matter of general medical knowledge and not as a matter within his particular expertise, that the injuries suffered by the deceased could cause stress which could cause ketoacidosis. On that basis, he was also prepared to accept the injuries as a cause of the death. Counsel for the appellant sought to discount this part of his evidence, as outside his real expertise. As to the evidence which Dr Al-Sarraj gave within his area of specialism, we have pointed out that Professor Whitwell profoundly disagreed with Dr Al-Sarraj. In her view there was nothing to indicate viral encephalitis of such acuteness as to be of any relevance, and such traces as there were could have been of considerable age. Further, Dr Al-Sarrah himself accepted that the viral encephalitis which he detected, and which was in his view “days more likely than weeks” old, might itself result from the ketoacidosis, rather than precede it.

Here again the jury had to consider conflicting expert evidence. Professor Whitwell, who undertook the original post mortem, assigned no role to viral encephalitis. Professor Tattersal did not lend any support to Dr Al-Sarraj’s thesis. Dr Al-Sarraj who during the second post mortem identified viral encephalitis, believed it to be recent and a self-sufficient explanation of the death, but he agreed, in response to a jury question, that the infection constituting viral encephalitis which he detected could itself have arisen from the deceased’s ketoacidosis. The jury, having heard Professor Whitwell and Dr Al-Sarraj, was entitled to choose between their views as to the reliability and significance of such traces of infection as could be observed in the various areas of the deceased’s brain. The jury may have thought that Dr Al-Sarraj’s evidence that viral encephalitis could here be a self-sufficient cause of death postulated a somewhat remarkable coincidence of injuries and ketoacidosis. So far as his evidence was relied upon to show that encephalitis may have stimulated the onset of ketoacidosis, the deceased’s brain injuries must then on the defence case have been an irrelevant coincidence. The jury was entitled to note however, that Dr Al-Sarraj himself was prepared, albeit from a non-specialist stance, to accept them as a cause of death.

It is pointed out on behalf of the appellant that Dr Cary, having listed the various possible ways in which the deceased might have come to die as a result of ketoacidosis, found himself unable to choose between the various theses as to causation. That, however, does not mean that the jury was not entitled to do so, having heard all the expert and factual evidence. We do not in all these circumstances consider that the judge can be criticised for refusing to withdraw the case from the jury after the conclusion of all the evidence.

It is also pointed out on behalf of the appellant that the jury took the comparatively short period of two and a half hours to reach its decision. However, it had shown, by its questions during Dr Al-Sarraj’s evidence as to whether the traces of viral infection, which Dr Al-Sarraj identified as viral encephalitis might have resulted after the injuries and because the ketoacidosis made the brain vulnerable, that it was following the issues closely. The jury faced choices between differing expert views. But they were not choices which were bound to involve it in protracted debate. We cannot know precisely how the jury approached its task. But it would be wrong to approach this appeal on the basis that the jury cannot have given the matter proper consideration, or that it may have been influenced by illegitimate or illogical considerations.

In our view the judge’s decisions to allow the case to go before the jury, reached both at the end of the Crown case and at the end of all the evidence, were correct. The jury’s verdict is not one which we consider to have been unsafe either because of such decisions or for any other reason. This appeal is therefore dismissed.