Discussion
89.To establish the guilt of the appellant the prosecution had to make the jury sure that at the time when Louella’s condition was such that there was a serious and obvious risk of death the appellant was grossly negligent in failing to obtain medical assistance and that such assistance would have saved her life. That she was having a bad trip, or the time had come when medical help was needed is not enough. In a case of this sort, as in medical cases involving health professionals, there needs to be a clear focus on when the condition of the deceased reached the threshold of serious and obvious risk of death, what the accused should have done then and the prospects of survival at that point. 90.The prosecution in this case did not fix on a time at which it was contended that Louella’s condition posed an obvious and serious risk of death rather, as the judge explained in the summing up: “It will be necessary … for you to carefully consider the events, looking closely at the timing of the moving images on the Defendant’s phone, between 17.53 and 23.24 and how the deceased appeared. The timing and content of messages between the Defendant and others and evidence of voice calls. It cannot be said that there was a duty of care or a breach of duty at the start, it’s the Prosecution’s case that as time went on you can be sure that a reasonably competent, prudent and sober person of the Defendant’s age and experience would have known that he had created a state of affairs which had become life threatening, and would have appreciated her serious deterioration and obtain medical help for the deceased. It will be for you to decide if or when that time arose. The Defence say that it never arose and that in the circumstances at the time, he did all that was reasonable to help her.” 91.In the passages dealing with causation, the judge linked the breach of duty with causation: You will have to assess the time from which he was in, in breach and medical aid was needed, what was the likelihood of survival? Are you sure that the failure to obtain medical help at that time was a substantial cause of her death? 92.The task of the jury was far from easy given that they had no help from the experts on the question of when Louella’s condition was clearly life threatening (as the judge put it as short-hand for a serious and obvious risk of death). We have noted that Professor Deakin, on viewing the video taken at 20.18, described her as being “seriously unwell and in need of urgent medical care” rather than at serious and obvious risk of death. Nonetheless, having determined when that state of affairs existed there would have been no difficulty in concluding that the appellant should immediately have tried (or continued to try) to get help. It would necessarily take time to arrive and for treatment to commence. That is when the question of survivability would become relevant. 93.The appellant made attempts to get assistance. He told Ezra Campbell at 19.13 to “get the medics” to the forest and again at 20.25. He sent a Google Maps pin to Ezra Campbell at 20.39. Shortly after 21.00 a search was made of the Ambient Forest where, mistakenly, the searchers thought the appellant and Louella were located. It is not plausible to suppose that the appellant was acting in a grossly negligent way whilst actively seeking help for Louella at that time and it is for that reason that a good deal of attention was paid at trial and in Professor Deakin’s evidence about the state of affairs when the video was taken shortly after 21.00. His opinion focussed on survivability at 21.10. 94.We respectfully agree with the observation made by the single judge, reflecting the submission advanced by Mr Kamlish, that the only evidence dealing with causation was that of Professor Deakin. None of the other experts gave evidence which went to that issue. It was not in doubt, even given the uncertainties surrounding the precise mechanism of death and the part played by the different drugs which Louella had taken, that the drugs caused the death and that medical intervention could have saved her. It was Professor Deakin who gave the evidence relevant to the issue of causation. In that he was in a similar position to the doctor who gave evidence in the trial of Morby in 1882. 95.Neither did the results of Dr Morley’s internet searches add to Professor Deakin’s evidence. Experts may, of course, rely upon the work of others in forming their opinions. The two peer reviewed papers dealing with six patients who had consumed 2C-P are examples of the type of material an expert may bring to bear in forming an opinion. But they said nothing about the chances of survival of a 2C-P taker who was at a serious and obvious risk of death. The fact that three of the patients needed nothing more than rest and the other three Valium suggests that the problems were of an entirely different order. Dr Morley was right to disavow reliance upon the newspaper report his searches had exhumed. A report of this nature is far removed from the type of material than an expert could pray in aid to support an expert opinion. Moreover, had it been found by the industry of the prosecution rather than Dr Morley it is inconceivable that it would have been admissible in evidence. 96.Like the jury, we are left with the Professor’s evidence which, echoing Lord Coleridge’s language in Morby, he gave “under a high sense of duty and responsibility”. He was careful not to overstate his position. It is striking that in his original report the Professor expressly addressed himself to the criminal standard of proof, rather than scientific certainty, but found the evidence wanting. He was happy with the civil standard of proof, the balance of probabilities. The furthest he would go when pressed further was in suggesting that there was a 90% chance of survival at 21.10 if medical attention had then been provided. He used various epithets to describe the position then and thereafter, but it is abundantly clear that was the highwater mark for survival and that the chances diminished as time went by, albeit remaining good. The diminishing chances of survival were expressly referred to in the opening of the prosecution to the jury. 97.We have referred to Gian (paragraph 22 above) and noted Miss Darlow’s submission founded upon it that the jury is not required to assess evidence on the basis of scientific certainty, and nor are they bound to consider hypothetical possibilities. The relevant passages from Gian are these: “21. Dr Jerreat's opinion was, throughout, clear. His opinion was that the victim had died of neck and stab wounds. He said in re-examination:- ‘My opinion is that she has died of the neck and stab wounds and that the cocaine intoxication is not an event, but there are always cases that you cannot completely exclude and in theory these are possibilities. I do not think that has occurred in this case where you have clear bruising, you have a clear action in the stabbing and the removal of the neck. As I was asked, it was not a clean removal, it was not quick, it was very slow and it would have taken some time and this is all while the person is still alive. So it would be highly unusual that you would perform this process just as they were dying of cocaine intoxication.’ 22. In our judgment, the judge was correct in refusing to withdraw the case from the jury merely on the basis that Dr Jerreat could not exclude a theoretical or hypothetical possibility that the victim had died from cocaine poisoning. There is ample authority for the proposition that the mere fact that as a matter of scientific certainty it is not possible to rule out a proposition consistent with innocence does not justify withdrawing the case from a jury. Juries are required to consider expert evidence in the context of all other relevant evidence and make judgements based upon realistic and not fanciful possibilities. (See Bracewell [1979] 68 Cr App R 44, Dawson [1985] 81 Cr App R 150 and Kai-Whitewind