Clarke & Anor, R v

On 1 February 2013 we heard the appeals against conviction of Earl St John Clarke, aged 38, and Sounaynah Morabir, aged 23. Both appeals were brought with the leave of the single judge. At the conclusion of the argument of counsel we announced that the appeals would be dismissed for reasons that we would hand down at a later date. These are our reasons.

Following a trial before HHJ Warner and a jury in the Crown Court at Wolverhampton, on 29 February 2012 the appellants were convicted of two different offences. The appellant Clarke (“Clarke”) was convicted of murder and on 21 February 2012 Judge Warner sentenced him to life imprisonment. The judge fixed a minimum term of 16 years with a direction that 428 days spent in custody on remand should count towards that minimum term. The appellant Sounaynah Morabir (“Ms Morabir”) was convicted of assisting an offender and on 21 February 2012 Judge Warner sentenced her to 2 years imprisonment with a direction that 319 days spent in custody on remand should count towards sentence.

The facts giving rise to the charges are these: in November 2010 Bradley Hamilton, a single man then aged 48, lived in a flat at 42 Rowley Street Walsall. He had a long history of alcohol dependency. As a result of this he suffered from both osteoporosis and cirrhosis of the liver. The appellants lodged with Mr Hamilton in his flat. There was evidence that the relationship between Mr Hamilton and the appellant Clarke was not easy and that they quarrelled and that Mr Hamilton was afraid of Clarke.

During the later part of the afternoon and the evening of 6 November 2010, the appellants were in the flat with Mr Hamilton, except for about 1 hour from approximately 9.30 to 10.30 pm, during which time Clarke was out, possibly buying drugs. Clarke admitted that he had had an argument with Mr Hamilton during the day on 6 November 2010.

At some time during the evening of 6 November, Mr Hamilton was the subject of very serious violence as a result of which he suffered multiple injuries. The evidence of Mr John Griffiths, a man who lived in the flat below Mr Hamilton’s, was that he had seen Clarke in the doorway that led up to Mr Hamilton’s flat at about 3.30 pm and he had seen Clarke’s car in the car park to the flats. Mr Griffiths did not see Clarke again that day. However at some time Mr Griffiths said that he had gone into the kitchen of his flat and had seen that Clarke’s car had been moved in the car park. Mr Griffiths also stated in evidence that when he was in his flat that afternoon and evening he heard sounds from upstairs on four separate occasions, three of which were before 9 pm. On the first three occasions the noises seemed like “thuds”. The fourth was after 9pm and prior to an ambulance arriving. He said that on that occasion he heard Clarke, who seemed to be on the telephone, because he was saying in an angry voice “I’m doing that. I’m doing that”.

At about 11.27 pm on 6 November 2010 the appellant Clarke and Ms Morabir called the emergency services because Mr Hamilton was unconscious and apparently dead. Paramedics arrived at 11.33 and found Mr Hamilton lying on the floor in the living room of the flat. The paramedics unsuccessfully attempted to resuscitate him at the flat for about 20 minutes but then pronounced him dead. At 12.13 am on 7 November 2010 the police were called. The two appellants were still there at the flat. Mr Hamilton’s body was removed.

A post-mortem on Mr Hamilton was conducted first of all by Dr R. Cvijan, a histopathologist. His findings were that he was “suspicious” of third party involvement, so the post-mortem was suspended so that it could be re-conducted by a Home Office appointed pathologist. That was, in the event, Dr Alexander Kolar, who subsequently conducted a full post-mortem. He noted that Mr Hamilton had suffered numerous rib fractures, which everyone agreed could be divided into three categories. First there were those associated with no or minimal haemorrhage, which were mostly of the right ribs, but also the sternum and two in the left higher ribs; secondly, those fractures with moderate or severe haemorrhage, which were grouped mostly in the left ribs, particularly the 7^thto 9^th ribs; and lastly those where there was no description of a haemorrhage in Dr Kolar’s report. They were in the lower ribs on the left side. Dr Kolar concluded that a number of the rib fractures were likely to relate to resuscitation, but the pattern of all the fractures and the extent of haemorrhage was not compatible with resuscitation in his view and were “highly suggestive” of an assault either from punches, kicks or stamps.

Dr Kolar also noted a series of internal injuries in both the chest and abdominal cavities, including lacerations to the mesentery. In his view such lacerations to the mesentery were associated with significant blunt force trauma to the front of the lower chest/abdomen and were to be seen in various circumstances, including assault by another person where there had been heavy punching, kicking or stamping. Dr Kolar noted that Dr Cvijan had found a quantity of blood in the abdominal cavity, an injury that would not be encountered on resuscitation attempts. Dr Kolar also noted injuries and haemorrhaging to the pancreas and spleen which in his view were associated with an assault. Overall, Dr Kolar’s conclusion was that the pattern of injuries was, in essence, that of “an assault type situation” and the injuries were sufficient in themselves to account for Mr Hamilton’s death.

The appellant Clarke was arrested and interviewed on 7 November 2010. He gave a prepared statement indicating that he had had a “verbal only” argument with the deceased on 6 November but he denied that he was responsible for Mr Hamilton’s death. Clarke was bailed, then re-arrested again and interviewed again on 15 November 2010.

During the time that Clarke was in custody in prison, he telephoned his mother and an ex-partner. These calls were monitored and their content put before the jury at the trial. In general the calls involved an admission of low level violence (“a common assault”) by Clarke against the deceased and a denial that his actions had caused Mr Hamilton’s death.

In the Indictment, the particulars of offence of the count alleging that the appellant Ms Morabir had assisted an offender contrary to section 4(1) of the Criminal Law Act 1967 stated that Ms Morabir, between 5 and 8 November 2010, “without lawful authority or reasonable excuse, did an act, namely concealed the death of Bradley Hamilton, with intent to impede the apprehension or prosecution” of the appellant Clarke. That form of wording became the subject of close scrutiny at the time of a submission of no case to answer on behalf of Ms Morabir at the close of the prosecution’s case in the trial.

The prosecution case was that the appellant Clarke had attacked Mr Hamilton in the early part of the evening of 6 November 2010 and that, as a result of the injuries suffered in the attack, Mr Hamilton had either died, or was near to death, at the time that Clarke left the flat at about 9.30 pm that evening. The prosecution case was that Ms Morabir remained in Mr Hamilton’s flat with the dead or dying Mr Hamilton whilst Clarke was out and that she was in touch with him by mobile telephone. The prosecution case was that events after 10.30 pm, in which both appellants were involved, were an elaborate cover up. Hence the charge against Ms Morabir. However, as already noted, the original Indictment specified that Ms Morabir’s act of assistance was in “concealing the death of Bradley Hamilton” as opposed to her assisting in concealing the “true circumstances” of the death of Mr Hamilton.

The case for the appellant Clarke at the trial was that he admitted that he had assaulted Mr Hamilton early in the evening but not so as to inflict any injuries that could have led to his death. Clarke’s case was that he had left the flat at about 9.30 pm and when he returned Mr Hamilton was lying on the living room floor unconscious. Clarke’s case was that he had attempted, clumsily, to apply resuscitation to Mr Hamilton for over 20 minutes but without success. He and Ms Morabir then called the emergency services at 11.27 pm.

Ms Morabir’s case was that she did not know or believe that Clarke had committed either murder or manslaughter.

For both defence cases the timing of when the injuries occurred was crucial. If injuries, in particular those to Mr Hamilton’s left 7^th, 8^th and 9^th ribs and internal injuries associated with that had occurred earlier than the injuries to the right ribs, then their case was, first, that the prosecution had to prove that the left rib injuries had been caused by Clarke and, in any case, those injuries could not alone have caused the death of Mr Hamilton. Further, it was argued that the clumsily attempted CPR together with Mr Hamilton’s osteoporosis, which affected his ribs considerably, together with the earlier injuries to the left side of the ribs, could have led to a condition known as “flail chest”, as a result of which the chest collapsed with the consequence that Mr Hamilton suffered a collapse of other bodily functions and died. Therefore, it was said, the cause or the overwhelming cause of Mr Hamilton’s death was Clarke’s clumsily attempted CPR immediately before the ambulance was called at 11.27pm. In advancing this case, the evidence of Professor Freemont, who had prepared a report for the defence, was regarded by the defence as of great importance because it dealt with the timing of rib injuries and, in particular, whether fractures to the left 7^th, 8^th and 9^th ribs could, by themselves, cause death.

The trial originally started on 16 January 2012 but was aborted because of a disclosure issue. Before it restarted the prosecution had indicated that evidence would be called not only from Dr Kolar, the forensic pathologist who had conducted the post-mortem, but also from Professor Archibald Malcolm, a consultant histopathologist who is a recognised expert in bone pathology and who had conducted an examination of Mr Hamilton’s left 7^th, 8^th and 9^th ribs, all of which had suffered fractures. Professor Malcolm took histopathological sections of those ribs so that he could examine their structure under the microscope. Professor Malcolm’s examination of the ribs and the prepared sections showed that they had no vital reaction, minimal or no blood in the fracture site, some adjacent soft tissue haemorrhage and no fibrin present. His conclusion was that the fractures to these left 7^th, 8^th and 9^th ribs had occurred very shortly before death or at the time of death. He also noted that the ribs showed quite a degree of osteoporosis which would have made the ribs fracture more easily that they would normally in a man of his age.

As we have already noted, the defence team had instructed Professor Anthony Freemont, professor of osteoarticular pathology at the University of Manchester. Originally he was asked to examine the sections of Mr Hamilton’s left 7^th, 8^th and 9^th ribs taken by Professor Malcolm. In his first report, Professor Freemont had aged the injuries to those ribs and surrounding tissues to one hour or less before Mr Hamilton’s death. Professor Freemont was then instructed “as an expert on fractures and the biology of fracture healing”, to extend his report to consider in detail Dr Kolar’s post-mortem report, focusing particularly on the totality of the rib fractures and the changes in the tissue described at the post-mortem examination.

Professor Freemont produced a second report dated 14 January 2012 in which he reviewed all the fractures noted in Dr Kolar’s post-mortem. Professor Freemont placed them in three groups according to the degree of haemorrhaging that was noted by Dr Kolar: No or minimal haemorrhage; moderate or severe haemorrhage and no description of the haemorrhage. Professor Freemont prepared a diagram to summarise this analysis. With regard to the first category Professor Freemont concluded that the majority of those fractures occurred at or around the time of death. With regard to others in that group, he concluded that they occurred “a little time prior to death”. He agreed with Dr Kolar’s view that those fractures could have occurred as a consequence of CPR in a man with significant osteoporosis.

With regard to the second category, Professor Freemont said that the fact that there was more haemorrhage in the soft tissues associated with them was strongly suggestive that they had occurred a little time prior to death and so at a different time from the first category. But it was difficult to ascertain their exact age. He noted that there was little or no haemorrhaging in the sections he had seen, but that Dr Kolar had reported severe or very severe haemorrhaging in the surrounding soft tissue. Professor Freemont stated that now he had considered Dr Kolar’s report and recently acquired body mapping images, he wished to change his view expressed in his first report as to the age of these injuries. Whereas before he had considered that they had occurred one hour or less before death, now he felt that the injuries in the area of the 7 -9^th left ribs “could have occurred as much as 3-4 hours before death” but it was very unlikely that they could have been much older.

Professor Freemont also expressed the following view which became of importance in the course of the trial:

“The fractures to the lower left ribs could not, of themselves, have led directly to death and there is no evidence that they indirectly led to death as there is no report of significant damage to adjacent vital organs.

There is therefore evidence of 2 fracturing episodes, one at or immediately around the time of death and the other that happened within 3-4 hours of death. The earlier injury is extremely unlikely of itself to have caused death. The second, because of the degree of osteoporosis, could have been caused by overenthusiastic CPR.”

Professor Freemont concluded his report by setting out his experiences and qualifications. These are,

“My undergraduate degrees are Bachelor of Medicine, Surgery and Science (MB.BS.; BSc (Anatomy). I have a doctorate in Medicine (MD). I have passed the examinations for Membership of the Royal College of Physicians and the Royal College of Pathologists (MRCP, MRCPath) and have subsequently been made a Fellow of both Royal Colleges (FRCP, FRCPath)

I have 28 years of experience working for HM Coroner, and 20 years as an expert witness in medico-legal cases.

I specialise in the process of fracture and the generalised disorders of bone known as the metabolic bone diseases.”

The report was served on the prosecution team. The prosecution legal team, led then, as on this appeal, by Mr Tim Raggatt QC, had a “medical case conference” with Professor Malcolm and Dr Kolar on 20 January 2012, that is three days before the trial restarted. A note of this conference was disclosed to the defence teams the following day. In the conference there was a discussion about the cause and timing of the fractures to Mr Hamilton’s ribs. It was noted that Professor Freemont had not seen the post-mortem photographs and Professor Malcolm said that he was “unsure” what method Professor Freemont had used to age the injuries.

The note then continues:

“In Professor Malcolm’s view the fractures he examined occurred within 1 hour of Bradley Hamilton’s death. Professor Malcolm would find it difficult to say that they occurred within 3-4 hours of death as he would expect to see at least some fibrin forming within 3-4 hours even with a chronic alcoholic. He suggests this time frame is ‘pure conjecture’. Prof Malcolm for his part believes that “Prof Freemont may have strayed from his area of expertise”.

Dr Kolar’s view is that this man died as a consequence of multiple injuries. The fractures referred to by Prof Freemont are part of these injuries and as such form part and parcel of the mechanism of his death hence Prof Freemont’s assertion at Paragraph 65 of his report that they do not is unreasonable.”

Dr Kolar gave evidence before the jury on 25 January 2012. He was cross-examined by Mr Michael Turner QC, appearing then, as now, for Clarke. Dr Kolar accepted that he was not an expert on the ageing of fractures. He was closely questioned about the likely causes of some of the fractures. He accepted that he could not exclude some of the fractures on the upper right and left of the rib cage being associated with resuscitation, or CPR.

Mr Turner then asked Dr Kolar about the cause or mechanism of death, in particular in relation to the injuries/fractures to the left ribs on the left side, “discounting [fractures] that might be caused by CPR for the moment”. Dr Kolar expressed this view (cross-examination page 11F-12A):

“The rib fractures on the left side cause a series of problems. It’s probably best to describe them as impact on the left side [inaudible]. We’ve got significant interruption of the integrity of the left side of the chest wall called flailed chest and this is well associated with very significant complications, so you are going to have interruption with the mechanics of respiration. You’ve also got the underlying damage to the spleen and the pancreas in that location which I attribute to being caused by the broadly same impacts, so that’s going to cause a bleeding in the chest cavity. Entry of essentially damaged products into the blood stream.

In addition, you are going to get blood in the chest cavity which will irritate the diaphragm, and the diaphragm again is integral to respiration, so you’ve got [inaudible] potential mechanisms of death. You’ve also got the overlying large area of blood formation…of blood, erm, collection, so you’ve also got bleeding to the tissues as well.”

Then Mr Turner asked whether Dr Kolar agreed that there had to be a loss of 4 to 5 pints of blood in order for death to follow. Dr Kolar said that that figure was “completely incorrect”; to which Mr Turner riposted that he was going to “flag up” the first disagreement between Dr Kolar and Professor Freemont. Dr Kolar replied that Professor Freemont “is not a forensic pathologist…its not his area of expertise…that’s not my view, we are different specialities.”.

Mr Turner then continued his cross-examination of Dr Kolar on his opinion of the cause of death. There was an exchange, at page 13G to 14Aof Dr Kolar’s cross-examination, on which Mr Turner relies particularly in this appeal. Dr Kolar said:

“A.

To merely split individual components off is not appropriate. This man had very significant injuries to several structures and in isolation, the mesenteric injuries, the pancreatic and [inaudible] to a lesser degree could all have caused death in themselves.

Q.

And again, in isolation from those, the flail chest caused by all the fractures could have done the same.

A.

It could have done, yes.”

At the conclusion of the prosecution case a submission of no case to answer was made by Mr Berriman, who appeared then, as he does now, on behalf of Ms Morabir. The argument was that, at the highest, her state of knowledge was that the appellant Clarke had committed actual bodily harm against Mr Hamilton, but no more. It was submitted that there was no independent evidence to show that Ms Morabir knew or believed that Clarke had done any act which led to the death of Mr Hamilton which could be characterised as either murder or manslaughter.

When Mr Raggatt responded for the prosecution, he accepted that the Indictment “might be altered slightly to spell out more clearly” how it should reflect the prosecution case against Ms Morabir. Mr Raggatt emphasised that the case and always had been that there was an act of commission by Ms Morabir by agreeing to lend her support to the presentation of a false picture of the death of Mr Hamilton when she knew that picture was false. Mr Raggatt went through the chronology of events, submitting that Clarke must have returned from the trip to buy drugs by 10.50pm and that, on Professor Malcolm’s evidence, the jury could find that there was a further assault on Mr Hamilton between 10.50 pm and 11.27 pm when the telephone call for the emergency services was made. Mr Raggatt’s submission was that the jury could infer that serious injuries (including fractures to ribs) occurred after Clarke had returned at which time Ms Morabir was not only present but [had] been in contact with [Clarke] and immediately afterwards initiated or took part in this proposed 999 call.

Page 18D-E of the transcript of Mr Raggatt’s submission continues:

“And the simple fact of the matter is that Professor Malcolm’s evidence is that the absence of fibrin suggests injury that is either…it is certainly no more than an hour old, and in most people thirty minutes would produce it. The necessary inference from that is, we would suggest, and certainly one which open to the jury, that those serious injuries occurred after Clarke’s ultimate return, at which time Miss Morabir is not only present but has been in contact with him and immediately afterwards initiates or takes part in this proposed 999 call.”

The judge then suggested that the wording of the Indictment did not exactly put the case the way that Mr Raggatt had explained it, pointing out the difference between concealing a death and concealing the true circumstances of a death. Mr Raggatt accepted that point and said that he would, if needs be, seek leave to amend the particulars offence in Count 2, ie. the charge against Ms Morabir.

At the conclusion of the submissions, the judge stated that he would give more detailed reasons later but that his decision was that “on the wording of the charge as it at present appears I am not satisfied that there is a case to answer in relation to the allegation of concealing the fact of [Mr Hamilton’s] death”:

Mr Raggatt then sought leave to amend the Indictment so that the particulars of offence in the proposed Count 2 on the Indictment would read: “Sounaynah Morabir, between the 5^th day of November 2010 and the 8^th day of November 2010 without lawful authority or reasonable excuse, did an act, namely concealed the true circumstances of the death of Bradley Hamilton…”.

The judge heard further submissions on the issue of whether an amendment should be permitted and what its effect would be. He gave his ruling the following day, Tuesday 9 February 2012. The judge said:

“I don’t consider the way that the prosecution has…that the case is any different than it was when this case was opened so far as Miss Morabir is concerned, and as Mr Raggatt has said, the word “cover up” has been used more than once. I don’t consider there is any change here that justifies this matter being reopened or the jury being discharged.

I say again, for the avoidance of doubt, and I ask that my reasons have the word “circumstances” written in, because that was simply a slip of the pen.”

Although the judge did not then explicitly give any further ruling on Mr Berriman’s submission of no case to answer, it is implicit that, on the basis that the amendment to the Particulars of Offence of Count 2 was permitted, then the submission of “no case” would be rejected.

The appellant Clarke did not give evidence but Ms Morabir did so. Professor Freemont was then due to be called on the last day of evidence on 14 February 2012. Just prior to doing so, the prosecution announced that it would object that he was not qualified to give expert testimony beyond the issue of the rib fractures. In particular it was submitted by the prosecution that Professor Freemont was not qualified to give an opinion on the cause of death of Mr Hamilton.

Professor Freemont then gave evidence on a voir dire on the issue of his qualifications to give expert evidence on the cause of death. In cross-examination by Mr Raggatt, Professor Freemont accepted that he was not a Home Office pathologist and that he did not have any “higher forensic qualifications in pathology” such as the Diploma of Medical Jurisprudence; nor was he a Fellow of the Royal College of Pathologists in the specific field of forensic pathology. He accepted that he had not conducted any post-mortems in circumstances where it was suspected that the deceased had been murdered, although he had conducted many where the deceased had suffered an unnatural death such as in a road accident, a fall, or a suicide. Professor Freemont accepted that he would defer to a Home Office pathologist such as Dr Kolar or Doctor Rouse (who had conducted a second post-mortem on Mr Hamilton) if he felt that “the injuries which I saw at post-mortem had been deliberately…might have been deliberately caused by another person, then that is when I would refer a case to a Home Office pathologist”: (see page 13H of the transcript of the voir dire). On the following page Professor Freemont said “…if I started a post mortem examination and was concerned that the cause of death might have been deliberately inflicted by somebody else then I would refer the case on to the Home Office Pathologist”. Mr Raggatt then asked Professor Freemont: “what expertise do you have to say that you differ from the Home Office pathologist on the question of the cause of this death” to which Professor Freemont replied: “I don’t”: (see page 14F).

When Professor Freemont was re-examined by Mr Turner he was asked whether it was his view that the only people who could give expert evidence in relation to the cause of a death have to be by definition Home Office pathologists; he answered no and explained that the reason was that the object of a post-mortem examination was to give a cause of death. “Therefore every pathologist who undertakes a post-mortem examination is placed in that position and every time a post-mortem is conducted a pathologist will give a cause of death”. He said that he felt qualified to do that: (see pages 17D-E and 18D).

Professor Freemont was asked further questions by the Judge and he explained how he had come to give an opinion as to the cause of death. He explained that he had originally looked at the three left ribs 7, 8 and 9 and was told that some conclusions had been drawn from other people’s examination of those ribs and other fractures and he was then asked if he could give his opinion on “whether the particular fractures could have caused death, because at the time that I was asked it was suggested that the fractures themselves had been responsible for death and I am an expert on fractures”. He expanded that by explaining that he had been told that a pathologist had said that the fractures in that small area at the base of the left side of the chest could have led to such level of respiratory distress as to cause death. Professor Freemont said: “I didn’t think that that was possible and that was the context that I was asked this”: (see page 19E-H). Then he confirmed that he was first asked whether the fractures at the left 7^th, 8^th and 9^th ribs could have caused death and then he was later asked if all the fractures taken together could have caused death and he had said no to the first question and yes to the second.

Later on (page 25G) Professor Freemont confirmed that he was not qualified in a murder case to “conduct an autopsy and then give my opinion as to the cause of death”.Professor Freemont also accepted that he was not a pathologist who “does the principal role on either side in determining the cause of death in a suspected homicide case”: (see page 26F-G).

But when yet further questioned by Mr Turner, Professor Freemont said that in the circumstances of this case, having read the post-mortem report of Dr Kolar he felt that it gave him sufficient information to “allow me to ask the relevant questions as to the cause of death”. He went on to say that it may not be sufficient to say that “multiple injuries” caused death, because they may cause death by haemorrhage, so that the correct question was to ask: what is the mechanism that caused death as a result of the multiple injuries sustained. So here the question was, in his view, “what was it specifically here that led this man to die”: (see page 28A).

The judge then gave his ruling . Having referred to some of Professor Freemont’s evidence, he said:

“In my judgment, [Professor Freemont] is not an expert who is able to give evidence on the cause of death in this case, save and beyond that it might be immediately apparent from the particular ribs he examined in the course of his task on behalf the defence. He can be asked about the age and the fracture and so on – things like that – but I regard him as, from his answers to me, being invited to stray outside his area of proper expertise. He has an opinion. I daresay many medically qualified people have an opinion. But we’re talking here about an expert witness who’s going to give evidence before a jury on an allegation of murder”.

Following that ruling, Mr Turner sought an adjournment of the trial for a week to consider whether to get an alternative expert or, alternatively, that the jury should be discharged. The judge rejected both applications.

Professor Freemont therefore gave evidence only on his analysis of the sections of the fractures of the 7^th 8^th and 9^th left ribs. His view was that those fractures had occurred more than one hour before death and that they could have occurred between three to four hours before death. He did not agree with the view of Professor Malcolm which was that the lack of fibrin in the areas of those fractures indicated that the fractures had been incurred one hour or less before death. Professor Malcolm had said that those fractures could not have occurred three to four hours before death and he did not believe that the deceased could not have produced fibrin during a period of 3 to 4 hours before death.

On 15 February 2011, after Professor Freemont’s evidence, there was a prolonged discussion on the directions that the judge was to give to the jury. First there was a discussion on what issues should be “left to the jury”, in particular whether any issue of the causation of Mr Hamilton’s death should be left to the jury. Having heard argument on this issue, the judge gave a ruling. He ruled:

“I am not persuaded that even on a view of the evidence most favourable to Mr Clarke, that as a matter of law the issue of causation of death arises as a question for the jury here.

This man died from multiple injuries. I do not consider that cross-examination of Doctor Kolar or other evidence undermines that proposition.

If a contributory factor to this man’s ultimate fate was CPR, and we are talking here as CPR realistically by the Defendant - there is no suggestion that the paramedics’ efforts [inaudible] and if the jury are satisfied that he, Mr Clarke, was acting unlawfully and with the necessary intent when he caused any non-CPR injuries to Mr Hamilton, they will on any view of the evidence agree it is a significant contribution to this death, even if not only or the main factor.

In the context of this case, it could not as a matter of law in my judgment be said that the CPR injuries were so overwhelming as to make the non-CPR injuries just part of the history as opposed to an operating cause of the death.”

The judge then produced a draft of “Questions the Jury Need to Answer” to give to the jury on count 1, the allegation of the murder of Mr Hamilton by the appellant Clarke. The first question in this version was phrased:

“1.

Have the prosecution made you sure that it was a blow of some kind, or a combination of blows, from the defendant that caused the death of Bradley Hamilton?

If they have made you sure, go on to the next question.

If not, then “not guilty”.”

The second question dealt with self-defence, the third question with intent, the fourth question with “loss of control” and the fifth question with intent in the context of a possible verdict of manslaughter other than by reason of loss of control.

There was debate about these questions. The following morning the judge produced a modified version of the questions. These were prefaced by a NOTE, which said:

“Although, as I have directed you, all matters of fact are for you to decide in this case you have had no evidence to contradict the prosecution proposition that you can be sure that Bradley Hamilton died from multiple injuries.”

Effectively, this note reflected the judge’s ruling of the previous day on the issue of causation. Then the first question of the revised version stated:

“1.

Other than any injury that may have been caused by a genuine attempt at CPR, have the prosecution made you sure that the defendant caused any serious injury or injuries to Bradley Hamilton?”

The second question dealt with self-defence, the third with the necessary intent for murder, the fourth with “loss of control” and the fifth with intent in the context of manslaughter.

There was a long debate about the wording of the first question in the new version. Mr Turner urged the judge to add in the words “that significantly contributed to his death” at the end of the revised first question that we have quoted. The judge declined to do so, reminding Mr Turner of his ruling the previous day on not leaving the issue of causation to the jury.

Counsel then addressed the jury and the judge began his summing up on 17 February 2012. There are a number of aspects of the summing up that we must refer to for the purposes of the appeal of Clarke. First, at page 7E-F,the judge referred to the written questions to verdict he had prepared for the jury.

“Those questions, ladies and gentlemen, are for that purpose only, a list of questions for each Defendant. They are not my directions as to the law, which I am going to give you now, which as I say, you must act on, but two of the directions which I am giving you, you will also have them in writing and you have them there.”

The second extract of the summing up we must note is the judge’s direction on the ingredients of the offence of murder, which the judge gave at page 8B to 13B.We do not need set out all of that passage, but we should set out what the judge said at page 8B to D. He said:

“Count 1, that is the allegation of murder against Mr Clarke. To convict a Defendant of murder, you must first of all be sure that he unlawfully killed Mr Hamilton. Killed in the context of this case means that you have to be sure that Mr Hamilton died from multiple injuries, but you have no evidence, ladies and gentlemen to contradict that proposition which was put before you by the prosecution according to Doctor Kolar, so if you are sure that that is how he died, then the Defendant, Mr Clarke, will have been responsible for the death of Mr Hamilton if he caused any serious injury or serious injuries as part of those multiple injuries from which Mr Hamilton died, apart, that is from anything that he may have done in genuine attempts of CPR.”

That direction of law is criticised by Mr Turner and forms part of Ground One of appeal.

Having given those directions on the ingredients of the offence of murder, the judge referred to the “Questions the Jury Need to Answer” document. The judge recited the Note at the head of the document. He said, at page 13D – F:

“It starts with a note, “Although as I have directed you, all matters of fact are for you to decide, but in this case, you have no evidence to contradict the prosecution’s proposition that you can be sure that Bradley Hamilton died from his bleeding.

The extent of violence used towards Bradley Hamilton by the Defendant is very much in issue between the prosecution and the defence, but it is not challenged by the defence that there was some violence used. Clearly, any injury that may have been the result of a genuine attempt at CPR is not of course unlawful, so you then move on, ladies and gentlemen, to deal with the questions in the order in which they appear.”

Having given other directions with which we are not concerned, the judge gave directions about the expert evidence at page 52B:

“Now, before I remind you of what the Defendants have said about these matters, I am going to remind you about the expert evidence in this case and there has been, as you know, quite a lot of expert evidence. There has been some expert evidence called by the prosecution. There’s been expert evidence called by the defence, and expert evidence, ladies and gentlemen, is allowed in criminal cases to provide you information and opinion which is likely to be outside your experience and knowledge, unless there happens to be a pathologist or a doctor or a specialist in bone [inaudible] on the jury, but it is within the area of expertise of the witness who is giving evidence.”

Having given a general direction on the reason for expert evidence and that it was for the jury to decide how far they acted on it and how reliable it was, the judge said the following at page 52E:

“You do not have any evidence to contradict [“the view”] that Bradley Hamilton died from multiple injuries.”

The judge then summarised in some detail the evidence of Dr Kolar. At various points the judge interweaved the evidence of the other experts, viz. that of Professor Malcolm and Professor Freemont. Thus at page 55Che referred to the evidence of Professor Freemont on the cause of the rib injuries. Unfortunately, this part of the summing up is poorly transcribed and there are many references to “inaudible”. Thus the transcript reads:

“Professor Freemont said on that, [inaudible] that with the exception of those [inaudible], all the fractures were caused, potentially have been caused by CPR.”

At page 56E,the judge records that Dr Kolar agreed that there were two distinct periods of time for the injuries; an earlier one when there was more severe haemorrhage associated with them and the later ones. The judge then said that Professor Freemont confirmed this and added “He, ie Prof Freemont, said there had been possibly three attacks but certainly more than one”.

The judge then referred to Dr Kolar’s evidence on the cause of death. The judge recalled (page 57A-D) that Dr Kolar had said:

“The cause of the death was not natural causes. It was multiple injuries with the consequences of lots of individual things. Death was the product of those multiple injuries. He said that the rib fractures on the back, those on page 23 [inaudible] seven, eight and nine, had caused a series of problems. They’d interfered with the integrity of the proper functioning of the left chest and the underlying damage to the spleen. It produced what he called damaged products in the blood stream and had caused death in this case. Blood has gone into the diaphragm and was compromising him. There had been bleeding into his tissues. Blood loss can cause death. You don’t need to lose a lot of blood for that to happen.”

Again it is unfortunate that there are four important words missing in the transcript which are marked “inaudible”.

The judge then referred to the evidence of Professor Malcolm on the issue of when the left 7^th , 8^th and 9^th ribs were fractured in relation to the time of death. Professor Malcolm stated that the fractures had not been caused more than 2 hours before death. In relation to Professor Malcolm’s finding that there had been a lack of fribrin in and around the fractures and the age of the fractures, at 59B the judge recorded Professor Malcolm’s evidence as follows:

“He said, “If I considered that the fractures were two or three hours old, but there was no fibrin, there wasn’t any fibrin, that would only be possible if this man’s body had no fibrin, which would be incompatible with human life because his blood would not clot.”

Even with his liver disease, he said, he would have expected fibrin to be produced within an hour on the outside.”

The judge then summarised the evidence of Professor Freemont on the timing of the bone fractures in ribs 7 – 9. The judge said (page 60E) that Professor Freemont’s revised conclusion, having seen Dr Kolar’s report, had been that they had occurred more than an hour before death and could be three to four hours before death.

There are five separate grounds of appeal, but they can be grouped together as four topics. They are: (1) the judge misdirected the jury as to the elements of the law of murder because he failed to direct them that they had to be sure that any unlawful assault by the appellant Clarke led to the death of Mr Hamilton. We will call this ground “the causation issue”. (2) The judge erred in ruling that Professor Freemont was not qualified to give expert evidence on the cause of death. We will call “the expert exclusion issue”. (3) The judge erred in refusing to discharge the jury following his ruling on the expert exclusion issue. We will call that the “failure to discharge the jury” issue. Ground (3) adds nothing significant to Ground (2), as Mr Turner recognised in his submissions before us. If the appellant fails on the expert exclusion issue then the failure to discharge the jury issues does not arise. If he succeeds on the expert exclusion issue, then the question is whether the conviction is unsafe and it is unlikely that ground (3) will add anything. (4) The judge misdirected the jury as to the opinion evidence of (a) Dr Kolar; (b) Professor Malcolm and (c) Professor Freemont. That can be called the “misdirection issue”.

Mr Turner accepted at the outset of his argument that he could not succeed on the last ground on its own, so that he concentrated his submissions on the “causation issue” and the “expert exclusion issue”.

There are two grounds of appeal of Ms Morabir. First, it is said that the judge should have acceded to the submission of no case to answer at the close of the prosecution case. Secondly it is said that, once the judge had permitted the prosecution to amend the particulars of offence of the count against Ms Morabir, the judge should have ordered the discharge of the jury. In addition, it is accepted by the Crown that if the appeal of Clarke is allowed then we must allow the appeal of Ms Morabir.

Mr Turner raised the following arguments in relation to the two key issues. First, in relation to the “causation issue” he submitted that the judge was wrong to have ruled that the causation issue should not have gone to the jury. Even though the jury only had the evidence of Dr Kolar as to the cause of Mr Hamilton’s death, the jury had to be satisfied so that it was sure that unlawful injuries inflicted by Clarke were either the cause or a substantial or significant cause of Mr Hamilton’s death. The argument which Mr Turner wished to advance before the jury, which he submitted that the ruling of the judge on the causation issue effectively precluded, was that the injuries to the 7^th to 9^th left ribs were, or might have been only a part of the history of events or a minimal cause of death and the substantial or significant cause of death was Clarke’s incompetent attempts at CPR shortly before the emergency services were called. Hence the questions put to Dr Kolar about the possibility of death being caused by the condition of “flail chest” which was itself the result of Clarke’s incompetent attempts at CPR.

In relation to the “expert exclusion issue”, Mr Turner made two points. First, he submitted that the challenge to Professor Freemont’s expertise to give an opinion on the cause of death was taken very late. It was not raised soon after Professor Freemont’s report of 14 January 2012 had been served. It was not taken after the medical conference of the prosecution team on 20 January. Insofar as the point may have been alluded to in the note of the conference, Mr Turner told us that he had asked Professor Freemont directly whether he had the expertise to give an opinion on the cause of death and had been assured that he had. The prosecution had said nothing about the point until it was raised over four weeks later, on 14 February, when Professor Freemont was about to give evidence. This was “trial by ambush” by the prosecution, which led to unfairness to the defence.

Mr Turner’s second point was that the ruling of the judge was wrong in any event. Professor Freemont was a very experienced pathologist who had conducted many post-mortems of people who had suffered death from “unnatural” and violent causes, although not where murder was suspected. The fact that Professor Freemont was not a Home Office pathologist or that he did not have any of the higher pathologist’s qualifications expected of a Home Office pathologist did not mean that he had insufficient expertise to give an expert opinion on the cause of death. By ruling that Professor Freemont could not give an opinion on the cause of death it meant that the defence was unable to mount effectively its argument that the fractures to Mr Hamilton’s lower left ribs could not, or might not have been able to lead directly to death and that there was no evidence that those fractures did lead directly to death as there was no report of significant damage to adjacent vital organs.

Mr Berriman submitted that up until the close of the prosecution case against Morabir there had been no issue between the prosecution and Morabir on the cause of Mr Hamilton’s death because that was irrelevant to the charge as framed in the count against Morabir. The only issue was whether Morabir knew or believed that Clarke was guilty of the offence of murdering Mr Hamilton. However, once the nature of the charge changed to one of “concealing the true circumstances of the death” of Mr Hamilton, then the nature of the case against Ms Morabir changed fundamentally because the issue of the timing and the cause of death now became relevant. Mr Berriman said that Ms Morabir had not been concerned previously to deal with timing or causation of Mr Hamilton’s death because it had not been relevant to the charge against her as originally worded. But the change in the wording in the Particulars of Offence meant that issues of causation and the timing of Mr Hamilton’s death became significant to Ms Morabir’s knowledge of the “true circumstances” of the death of Mr Hamilton before the emergency services were called. Hence, the defence team for Ms Morabir joined in the application to adjourn once the judge had ruled that Professor Freemont could not give evidence on the cause of death, because Ms Morabir would wish to have another expert on that issue as well.

Issue One: The causation issue. When murder is alleged, the prosecution has to prove not only that the defendant inflicted serious injury on the victim but also that the injury inflicted was at least a substantial or significant cause of the death of the victim. (Of course the prosecution must prove the relevant intent as well but that is not in issue in this appeal). In this trial there were issues between the parties as to (a) the timing of the injuries to Mr Hamilton; and (b) the effect that they had on him. Despite the fact that the defence could not rely on any evidence from Professor Freemont on the cause of death, because the judge had ruled against allowing him to give such evidence, the defence still relied on the evidence of Professor Freemont that the injuries to the 7^th-9^th left ribs had occurred up to 3 – 4 hours before death and had argued (as it was entitled to do) that, in consequence, those injuries were (or might have been) only an insignificant part of the cause of Mr Hamilton’s death. The defence was entitled to rely on the answers that Dr Kolar had given in cross-examination on the possibility of the cause of death being the result of “flail chest”.

In those circumstances, although the only expert evidence that was before the jury on the issue of the cause of death was that of Dr Kolar, the Home Office pathologist, in our judgment the following questions still remained for the jury to decide: (1) did Clarke inflict unlawful injuries on Mr Hamilton; (2) if he did, were those unlawful injuries a substantial or significant cause of Mr Hamilton’s death.

Accordingly, we are satisfied that causation of death was an issue that had to be left to the jury and we are quite sure that the judge was wrong to rule that he was “not persuaded” that the issue of causation of death was not one for the jury. The judge does not appear to have had clearly in mind the two separate questions we have identified viz. first, what unlawful injuries did Clarke inflict on Mr Hamilton and secondly, were those unlawful injuries at least a contributory cause of Mr Hamilton’s death.

The judge also said in his ruling that “it could not as a matter of law…be said that the CPR injuries were so overwhelming as to make the non-CPR injuries just part of the history as opposed to an operating cause of the death”. But, with respect, those are all issues of fact for the jury to decide. They are not issues of law at all.

However, the ruling itself was of no consequence unless its effect was transmitted to the jury. The Note at the head of the document “Questions the Jury Need to Answer” that the judge gave to the jury was neither helpful nor quite accurate. First the Note (which we have already quoted) does not separate out the two issues we have identified above. Secondly, “prosecution propositions” are neither here nor there. What the Note could have pointed out, although in doing so it would have been commenting on facts, not law, was that the only expert opinion that the jury had as to the cause of Mr Hamilton’s death was that of Dr Kolar, who said that he died of multiple injuries.

The questions for the jury in the document do not themselves raise the question: if you are sure that significant injuries were caused by the defendant Clarke to Mr Hamilton then are you sure that those injuries were a substantial or significant cause of Mr Hamilton’s death? In our judgment if the jury in this case were going to be given a document entitled “Questions the Jury Needs to Answer” then this particular question should have been put to the jury.

Nonetheless, we are quite satisfied that these errors do not make Clarke’s conviction unsafe. First, the judge made it clear in his oral directions to the jury that the written questions were not his directions on the law nor were they a substitute for his directions on the law. Secondly, the judge did give a satisfactory oral direction on the issue of causation, as is demonstrated in the key passage is at the transcript page 8B-D,which we have already quoted above. We recognise that in this passage the judge reminded the jury, first, that there is no evidence “to contradict the proposition which was put before you by the prosecution according to Dr Kolar” viz that Mr Hamilton died of multiple injuries. But he then directed the jury: “so if you are sure that that is how [Mr Hamilton] died” which must be a reference back to death from serious injuries, “then the defendant, Mr Clarke, will have been responsible for the death of Mr Hamilton if he caused any serious injury or serious injuries as part of those injuries from which Mr Hamilton died, apart that is from anything that he may have done in genuine attempts of CPR”.

In our view, that direction did pose for the jury the right causation question: did Clarke cause any serious injury or injuries as part of those multiple injuries from which Mr Hamilton died.Although the jury did retire with the document “Questions the jury Need to Answer” (the contents of which the judge had repeated orally during his summing up), the jury had had a proper causation direction orally from the judge. Moreover, the fact is (subject to the second issue which we consider below) the evidence on causation was all one way. The effect of the evidence of Dr Kolar was that Mr Hamilton had suffered a series of injuries which were consistent with multiple blunt force impacts such as punches and kicks and that those multiple injuries were the cause of his death. Thus, even if the judge had rephrased the document given to the jury to include a question on causation (“if you decide Clarke inflicted unlawful injuries, then were they a substantial/significant cause of Mr Hamilton’s death”) and he had emphasised even more than he did orally that this causation issue was a live one for the jury to decide, it is obvious that the jury would have come to the same result that they did.

Accordingly, although the judge was wrong to rule that there was no issue of causation to go to the jury and he was wrong to phrase the Note and questions in the document “Questions the Jury Need to Answer” in the way that he did, those faults do not make the verdict unsafe. Therefore we reject the ground of appeal based on the “causation issue”.

Issue Two: The expert exclusion issue. The first point is whether the fact that the prosecution only made an express challenge to Professor Freemont’s expertise to give an opinion on the cause of death of Mr Hamilton at the outset of Professor Freemont’s evidence, some 25 days after the point was first raised in the prosecution medical case conference, caused unfairness to the defence. Mr Raggatt submitted that it must have been clear from the moment that the defence saw the disclosed note of the conference that the prosecution would challenge Professor Freemont’s expertise. He submitted that Mr Turner should have taken the initiative and asked the prosecution straight out whether it intended to challenge Professor Freemonts’ expertise. But Mr Turner insisted that he was entitled to assume that there would be no challenge unless he was notified of one.

With great respect to both Mr Turner and Mr Raggatt, this game of shadow boxing did no credit to either of these two most experienced criminal trial practitioners. The Criminal Procedure Rules 2010 which were in force at the time of this trial provided, by Part 1.2, that each participant in the trial must prepare and conduct the case in accordance with the “overriding objective”, as set out in Part 1.1. That objective is to deal with criminal cases justly and, in particular, to deal with the case efficiently and expeditiously. In our judgment those obligations mean that if one side intended to challenge the expertise of an expert witness of the other side, then written notice, together with the reasons for the challenge, should have been given as soon as possible so that the other side could consider what it would do. Even if that were not done, it should have been obvious to the defence once it had seen the note of the medical conference of 20 January 2011 that there was a strong possibility that the expertise of Professor Freemont would be challenged. Defence counsel should have taken the initiative immediately and asked the prosecution whether it was going to challenge the professor’s expertise.

However, the “trial by ambush” argument does not assist Mr Turner unless there is substance in his argument that the judge was wrong to exclude Professor Freemont’s evidence on cause of death. We have concluded that there is not. First, we note that Mr Turner did not suggest to us that there was an alternative expert witness that the defence could have called if it had known earlier of the prosecution’s position concerning Professor Freemont’s expertise. There was no attempt to introduce any “fresh evidence” before us to the effect that another properly qualified expert was available to the defence who could have challenged Dr Kolar’s view on the cause of Mr Hamilton’s death on the basis that Professor Freemont had suggested.

Secondly, we think that the judge was entitled to rule that Professor Freemont did not have the expertise to give an opinion on the cause of death looking at the matter overall. The professor is distinguished in the field of osteoarticular pathology. He specialises in the process of fracture and the generalised disorders of bone known as metabolic bone disease. But he has never conducted a post-mortem when there is a suspicion that the cause of death is murder. Such post-mortems are reserved to Home Office pathologists precisely because they have higher qualifications such as the Diploma of Medical Jurisprudence and the experience of assisting with the post-mortems in suspected murder cases. In this very case the first post-mortem by Dr Cvijan had been abandoned because he suspected foul play and the post-mortem had been carried out by Dr Kolar, a Home Office pathologist. Professor Freemont did not have the experience or expertise to consider all the possible causes of death apart from the fractures to the ribs in the way that Dr Kolar could in order to come to his overall conclusion that the cause of death was best regarded as “multiple injuries”, where the likely mechanism for the multiple injuries was heavy punches or kicks.

Thirdly, even if the judge erred in ruling as he did on Professor Freemont’s expertise, the conviction is not unsafe. If Professor Freemont had given evidence on the cause of death in accordance with his report of 14 January 2011, the highest that he could have put his view was that the fractures to the lower left ribs could not, in themselves, have led directly to death and that there was no evidence that they led indirectly to death as there was no report of significant damage to adjacent vital organs. Professor Freemont did not deal, because he was not in a position to do so, with the combination of injuries noted in Dr Kolar’s report of his post-mortem and in his evidence at the trial. Thus, Dr Kolar opined (in a way that Professor Freemont could not because he did not have the experience to do so) that the injuries to the left ribs were the result of reasonably heavy kicks or stomps or a strike with a weapon, but not necessarily excessively so in view of Mr Hamilton’s osteoporosis. Dr Kolar emphasised also the lacerations to the mesentery, which he said were associated with significant blunt force trauma to the front of the lower chest/abdomen compressing the mesentery against the spinal column. Dr Kolar was firm that such an injury was not encountered in resuscitation. Nor could Professor Freemont have gainsaid Dr Kolar’s opinion that heavy punches and/or kicks were the likely mechanism for the causation of the multiple injuries that resulted in Mr Hamilton’s death.

In short, even if Professor Freemont had given evidence, we are satisfied that it would have made no difference to the outcome of this case because he could not have challenged those conclusions of Dr Kolar, which the jury were entitled to accept and were overwhelmingly likely to do so.

Therefore, we reject the submission that the verdict was unsafe. Clarke’s appeal must be dismissed.

We are quite satisfied that the judge was correct in permitting the prosecution to amend the Particulars of Offence of the Count against Morabir. The original version had been sloppily drafted, without doubt, but the case of the prosecution against Morabir was always clear; it was that she had assisted Clarke in the “cover up” of the true circumstances of Mr Hamilton’s death. The prosecution’s original opening was that Morabir had assisted Clarke in making it appear that Mr Hamilton had suffered some injury by some other means and that Clarke had attempted to resuscitate him before the emergency services were called. That was how the case was developed.

There is also no force in the argument that if the Particulars of Offence had originally been in the amended form then Morabir would also have wished to instruct an expert on the issue of the cause of Mr Hamilton’s death. Mr Berriman himself pointed out that, at the PCMH, counsel for Ms Morabir had agreed to rely on the same expert as that appointed for Clarke, viz. Professor Freemont. This demonstrates that, even at that stage, Ms Morabir’s legal team appreciated that the circumstances of Mr Hamilton’s death were relevant to her case. If they were not then there would have been no point in relying on Professor Freemont’s opinion. That issue remained the same before and after the amendment to the Particulars of Offence. There was thus no reason why there should have been a discharge of the jury or any adjournment of the case against Ms Morabir once the judge had permitted the amendment to the Indictment.

We therefore also dismiss Morabir’s appeal.