Case No. 201303910-B3

19.Both applications challenge the judge’s decision to admit the evidence of Amber Patterson as hearsay. The Crown relied at the second trial on her unfitness under section 116(2)(b) of the 2003 Act, and the judge having found that that subsection was satisfied declined to exercise powers to exclude the evidence. There is common ground between Chalk and Dwyer-Skeats in challenging the admission of this evidence although the arguments advanced by each are different. In addition on Chalk’s behalf there are two further matters. Firstly, it is submitted that there was no case to answer against Ms Chalk at the conclusion of the Crown’s evidence. Secondly, complaint is made that there was a delay approaching three weeks between the end of evidence and the jury’s retirement and that the summing up and legal directions were over-complex so that the jury could not perform its functions properly, leading to an unsafe verdict. 20.Ms Patterson had given evidence at the first trial. By then she had received a kidney transplant and there were serious concerns about her health. She gave evidence with breaks to accommodate her medical condition. She was cross-examined in full by counsel for Nicholls and Woodmansey and for a significant period on behalf of Dwyer-Skeats until she became unwell. After a break of a week, a special procedure was adopted whereby evidence of her interviews under caution was put before the jury, and then abbreviated cross-examination continued on behalf of Dwyer-Skeats and was carried out on behalf of Ms Chalk. Thereafter, for reasons already given, the first jury was discharged.21.At the outset of the second trial counsel for the Crown raised concerns about Ms Patterson’s ability to give evidence, and after the Crown’s opening a psychiatric report on her was made available. In due course a Dr Talat attended court and gave evidence about Ms Patterson and was cross-examined. The Crown then pursued an application to adduce her evidence as hearsay. Woodmansey did not object to the admissibility of her evidence as hearsay whereas Ms Chalk and Dwyer-Skeats did. Woodmansey wished to rely on parts of her evidence.22.The medical evidence showed that around the time of the original trial Ms Patterson who had had a kidney transplant had stopped taking immuno-suppressive medication, blaming herself for Mr Dack’s death, in order that she might die. She subsequently decided to stop taking such medication completely and as a result lost the transplanted kidney. A major factor in this was the traumatic psychological stress of giving evidence during the first trial. The judge in his ruling spoke of the harrowing effect of cross-examination which he had witnessed. 23.Thereafter she had to rely on dialysis. The treating nephrologist Dr Macanovic had real concerns that Ms Patterson would not attend for dialysis if stressed by the rigour of a criminal trial and consequently would put her life in danger. She expressed the view that “it would not take very much to push [Ms Patterson] over the brink.” By the eve of the retrial, Mr Macanovic was even more worried about the actions she might take in order to avoid trial. The psychiatrist Dr Talat’s view was that for Ms Patterson to give evidence would have a devastating impact on her mental health. It was quite likely that she would stop dialysis. This would eventually kill her. 24.In oral evidence Dr Talat stated that if Ms Patterson were cross-examined from hospital the risk of her taking her life would be moderate to high. The evidence given showed that Ms Patterson was not at the point of examination physically or mentally unfit. However if she were to give evidence the consequences for her could well be fatal. On behalf of Ms Chalk there is no criticism of the judge’s finding that on the basis of the evidence summarised Ms Patterson was unfit within the meaning of section 116(2)(b). 25.On behalf of Mr Dwyer-Skeats however, the point is taken that neither her physical nor her mental condition was sufficient to satisfy the subsection. The judge said he was satisfied by the evidence that the requirement for Ms Patterson to be a witness would have a devastating effect on her mental health involving a high to moderate risk of suicide. He addressed the submission that the court should not consider the possible future consequences to a witness as opposed to their fitness at the time they are required to be a witness in the following way in the course of a lengthy and careful ruling:“31. I have strong doubts about the suggested distinction between the position of witnesses at the moment “they are required to be a witness” and consequences which arise later. As a matter of ordinary English whether one is fit to do something includes taking account of both what may happen before being required to do it and of what may happen afterwards if one does it.32. In relation to hearsay, as in relation to other matters, the court is not a monster. No judge would allow a summons to issue if satisfied that issuing it would entail a moderate to high risk of suicide. Mr Donne’s proposition appears to accept that if the feared suicide were envisaged as occurring at the time that the individual is required to be a witness then the evidence would be admissible, but it would not be admissible if the suicide were envisaged as something which would come about a day or so later. I can identify no sound basis for any such distinction. 33. Accordingly I am not persuaded of the proposition advanced on behalf of the objectives…”It was on this basis that the judge held that the application fell within section 116(2)(b). 26.The judge had conducted an extremely careful analysis of Ms Patterson’s history and current condition, and had seen and heard evidence including cross-examination relating to it. We are satisfied that he was entitled to regard the evidence he had heard about the situation as “overwhelming” and to reject suggestions that this was a case of a manipulative witness who was simply unwilling rather than unfit to give evidence. Further, we reject the point going to the construction of the statute taken on behalf of Mr Dwyer-Skeats. We consider that the judge’s reasoning was sound.27.Both appellants additionally make common ground in characterising Ms Patterson as a flawed witness whose evidence could be shown to have been contradictory and unsatisfactory in a number of respects. This, it is contended, should have led the judge to exercise his discretion to exclude the evidence. The unfairness of permitting the evidence of such a flawed witness to go before the jury when there was no prospect of them seeing her give evidence and being judged by them in the usual way, was, it was said, compounded by the fact that the Crown had been tardy in making its application. 28.The judge was critical of the Crown for not having addressed the question of Ms Patterson’s evidence earlier than it did. However he concluded, having considered again in some detail the asserted unsatisfactory nature of Ms Patterson’s evidence, that it would not be unfair to admit it. He noted that there were a number of independent and unchallenged areas of evidence which supported her account and gave examples and took account of the fact that her evidence could be challenged by the defendants themselves giving evidence. The jury would be made aware of evidence given by Ms Patterson at the original trial including hearing an audio version of cross-examination. The jury would be made aware that in the cases of Dwyer-Skeats and Chalk that cross-examination had been truncated.29.Moreover the defence would be able to identify by schedules areas in which they could submit compellingly that Ms Patterson had lied. The judge took account of the fact that aspects of Ms Patterson’s evidence had considerable probative value to the case as a whole and that her evidence was confined to the events of the day preceding the fatal attack as opposed to what took place on the actual day.30.The judge concluded that prejudice arising from the inability of the jury to see and hear Ms Patterson being cross-examined live could be substantially counteracted by an appropriate judicial direction and that the jury would be in a position fairly to judge her credibility. As to the lateness of the application the judge said that he was not persuaded that it prevented those objecting from instructing their own psychiatrist. Had that been desired urgent steps could have been taken at the outset of the trial and an adjournment sought if need be. However none of that had happened. 31.Having reviewed all the circumstances comprehensively the judge concluded that those objecting to the admissibility of the evidence had not been unfairly disadvantaged; nor did the Crown’s lateness in making the application make it appropriate to decline it. 32.Issue has been taken before us with the judge’s decision essentially on grounds very similar if not identical to those advanced below. We have considered the very detailed materials which form the judge’s ruling running to some 26 pages of closely considered and reasoned material. Having made his ruling the judge gave the jury directions before they heard the evidence and at the conclusion of the case gave substantial written legal directions to the jury relating to this issue. There has been no challenge to the accuracy or appositeness of those directions which redeem the judge’s intention, mentioned in the course of his ruling, to give the jury such directions. In the factual part of the summing up the judge took many pages to set out all the aspects of Ms Patterson’s evidence, reviewing with particular care areas in which the defence contended that she was being untruthful or inaccurate. No complaint has been made to us about the way in which the judge dealt with any of those materials. It seems to us that the judge’s approach and conclusions cannot be faulted.33.In the circumstances, therefore, after careful consideration we have come to the conclusion that there is no arguable point in relation to the admissibility of this evidence or its handling thereafter by the judge which could impugn the safety of the convictions. We note that the judge was disposed to hold that in the alternative the evidence was admissible under section 116(2)(e), and also that he would have been minded to admit it under his residual section 114 powers. Accordingly the application of Dwyer-Skeats in relation to conviction is refused. We next go on to consider the remaining grounds raised on behalf of Ms Chalk. 34.In the course of these proceedings the judge was asked to rule on a number of occasions that there was no case for Ms Chalk to answer. He ruled against her prior to the first trial on a dismissal application and then at the close of the Crown’s case. The latter application was renewed at the second trial, an important additional feature being the fact that by then Ms Patterson was no longer available to give live evidence. The judge did not consider that this made a material difference to his previous rulings. The application made to us is based on the submission that the totality of the evidence against Ms Chalk was insufficient for the case to proceed further. We cannot accept that submission. 35.We are satisfied that the case against Ms Chalk amounted to more than mere presence at the time of the fatal attack. A jury would be entitled to consider and draw inferences from the following matters: i)Ms Chalk’s awareness of Nicholls’ capacity for violence against someone he believed guilty of inappropriate behaviour. ii)She had retained photographs of Dack’s injuries on the first attack on her phone and shown it to others with approval or amusement. iii)She was involved in the joint plan to steal money from Mr Dack’s bank account on 5 April and knew that violence was to be used to obtain his PIN number. iv)She was party to the making of a false sexual allegation to Lee Nicholls against Mr Dack on 5 April knowing the likely consequences of this. v)She left the flat on the evening of 5 April knowing that Mr Dack was going to be beaten and then overheard it on the phone as it took place. vi)On returning to the flat she saw Mr Dack’s serious injuries and witnessed further assaults, yet did nothing to help him or dissociate herself, unlike Ms Patterson. She remained overnight in the flat with a semi-conscious victim lying bloodied and beaten in the next room. vii)On 6 April she was with the three males and left Mr Dack who by then was gagged and bound as a prisoner in the flat whilst all four of them went to sell his computer. viii)She then returned to the flat with others and remained present whilst the prolonged fatal attack took place. Given the very small size of the flat she could not have been unaware of what was going on and what was being done to Mr Dack. There was nothing to explain her failure to intervene.ix)After she had seen Mr Dack’s body, she spent several hours in the flat getting ready to go to a rave with two of those who had been involved in the attack. x)During that afternoon she had texted Ms Patterson suggesting that Mr Dack had gone to hospital when in fact he was already dead to her knowledge. On the following day she returned to the flat with the others and played her part in cleaning the flat as part of the evidence disposal operation. 36.It seems to us that those are all matters which a jury properly directed could take into account and from which it could draw conclusions adverse to Ms Chalk on the charge of murder. We are satisfied that there was sufficient evidence to go forward to the jury and that the judge was fully alert to and applied the correct legal tests, including an awareness that mere presence at the scene of a crime without more would be insufficient evidence upon which to base a conviction.37.The final area of complaint relates to the delay after closure of evidence and the asserted over-complexity of the summing up, legal directions and routes to verdict. We are unpersuaded by these submissions. This was a long case with three defendants (and a fourth in the background) whose roles were in dispute and where there were complex issues to be dealt with, not least joint enterprise, defences in conflict, and the position of Ms Patterson. The judge took significant time to craft appropriate directions with the assistance of counsel. Those which he produced and gave to the jury are clear and there is no suggestion that they were inaccurate in any way. Whilst the defence contended for shorter directions, those produced were logical and comprehensible. There was no question or intervention by the jury at any stage suggesting any difficulty with them. Whilst it is true that the summing up was very long, it at least had the advantage of setting fully before the jury all the facts and issues in the case. Following as it did the various addresses of counsel, they will have been enabled to set the arguments made to them in context. 38.The length of the summing up and the detail of the written legal direction and routes to verdict in a sense provide an answer to the issue of lapse of time between the end of the evidence and the jury’s consideration of its verdicts. The gap of nearly three weeks will have essentially been spent by the jury considering the issues in the case through the medium of counsels’ submissions and then the judge’s subsequent legal directions and factual summing up. The process was one therefore whereby the jury’s minds will have been focused on the case during that period. True it is that part of that period was spent in discussions between judge and counsel as to the relevant law and appropriate directions, together with a short period when the judge was unwell. However there is nothing in the matters raised which gives rise to any arguable point that the jury may have been confused or in some other way hampered in the task which they had to perform. Accordingly we reject the two further grounds advanced by Ms Chalk. The consequence of this is that her renewed application for leave to appeal against conviction is refused as there is nothing of substance in the grounds whether viewed individually or cumulatively.