Puaca, R v, Court of Appeal - Criminal Division, November 24, 2005, [2005] EWCA Crim 3001

Resolution Date:November 24, 2005
Issuing Organization:Criminal Division
Actores:Puaca, R v
 
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Case No: 200207268 D2

Neutral Citation Number: [2005] EWCA Crim 3001

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

His Honour Judge Mellor

Sitting at Ipswich Crown Court

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday, 24 November 2005

Before :

THE RIGHT HONOURABLE LORD JUSTICE HOOPER

THE HONOURABLE MR JUSTICE JACK

and

HIS HONOUR JUDGE GORDON

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Between :

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(Transcript of the Handed Down Judgment of

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Mr P Katz QC and Miss A Ward (instructed by Fosters Solicitors) for the Appellant

Mr W Coker QC and Mr C Morgan (instructed by CPS) for the Respondent

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JudgmentLORD JUSTICE HOOPER :

  1. On 22 November 2002 in the Crown Court at Ipswich the appellant, Steven Puaca, was convicted of the murder of Jacqueline Tindsley on 28 February or 1 March earlier that year. On 9 and 10 November 2005 we heard his appeal. At the conclusion of the hearing we announced that the appeal would be allowed and the conviction quashed. We reserved our reasons, and we now provide them.

    Introduction

  2. The primary issue at the trial was the cause of Miss Tindsley's death. At 6.41 am on Friday 1 March 2002 the appellant made a 999 call. Paramedics arrived at the flat where he and Miss Tindsley lived at 6.49. They found Miss Tindsley lying on her bed. She was dead and some rigor mortis was present. It was the prosecution case that at some point during the preceding night the appellant had smothered her by pressing her face into the bedclothes so she could not breath. The appellant did not give evidence. It was his case, supported by a written statement he had provided to the police when he was interviewed, that he had gone to sleep during the afternoon or evening of the 28th February, that he had woken at 9.30 pm to go to the lavatory, that Miss Tindsley was asleep in her bed, snoring, and that he had next awoken at 6.40 am when he had gone into her room and found her dead. It was accepted that, if Miss Tindsley had been smothered, the appellant was the only person who could have done it.

  3. The issue of cause of death turned very largely, perhaps wholly, on the pathological evidence. We will revert to the question of the other evidence relied on by the prosecution. To establish smothering the prosecution relied on the evidence of Dr Michael Heath, who had conducted a post-mortem examination during the afternoon of 1 March 2001 having earlier that day gone to the flat where the body had remained very largely as the paramedics had found it. The prosecution also relied on the evidence of Dr William Michael, a neurologist, who gave evidence on a subsidiary issue. The defence relied on the evidence of Dr Nathaniel Cary who had carried out a post-mortem examination on 14 March 2001. The defence also relied on the evidence of Professor Crane, the State Pathologist for Northern Ireland.

  4. At the trial two possible causes of death were identified for the jury. Dr Heath stated that Miss Tindsley had been smothered whilst on her bed. The other possibility was by reason of an overdose of drugs perhaps coupled with a fit. That was advanced by Dr Crane and Professor Carey. They did not, however, rule out the possibility of smothering. But what they did say, and say most forcefully, was that there was no pathological evidence to support Dr Heath's view. They have subsequently had the backing of five further pathologists who either gave evidence before us at the request of the appellant or who provided reports which were before us. That further evidence and the reports were accepted before us by the prosecution as credible. Those pathologists said that they would not have given suffocation as the cause of death. They strongly challenged a number of matters on which Dr Heath relied in order to reach his conclusion. The prosecution did not seek at the hearing of the appeal to rely on any further pathological evidence to support Dr Heath.

  5. Before we can come to the grounds of appeal it is necessary to refer to the damage done to the infraspinatus muscles which was observed by Dr Heath and Dr Carey. This was described by Dr Heath as marked tearing with extensive haemorrhaging within the torn muscles. The infraspinatus muscle is a muscle about the size of an adult finger, which is part of the muscle system in the area of the shoulder. One of its purposes is, with other muscles, to retain the humerus in the shoulder socket. It also enables the arm to be turned outward. The damage to the muscles was symmetrical, that is to say, it was the same on each side of the body. Dr Heath's view was that the damage to these muscles was caused by Miss Tindsley straining up as she resisted being smothered. Dr Carey's view was that the damage was more likely to have occurred during a fit.

    The position of Dr Heath

  6. Dr Heath is an accredited pathologist appointed to the Home Office Register of Forensic Pathologists on 24 April 1991. In June 2006 he will appear before the Home Office Policy Advisory Board of Forensic Pathology facing disciplinary charges relating to his conduct in both the present case and in another (R v Fraser). The complaints in those cases were made as long ago as July 2002 in respect of Fraser and in February 2003 in the present case. The complaints in the present case were made by Dr Carey, Professor Crane and Dr White. Dr Carey was also a complainant in the case of Fraser. The complaints have resulted in two charges. It was agreed that, if the Board were to find against Dr Heath in his handling of the present case and if we were to dismiss the appeal, then there would be a request for a review by the Criminal Cases Review Commission. Given the delay in both this case and in the hearing of the disciplinary charges, we took the view that we should proceed with the hearing of the appeal rather than awaiting the outcome of the disciplinary proceedings.

    The grounds of appeal

  7. Six grounds of appeal in all have been advanced on behalf of the appellant. The first related to the Lucas direction given to the jury in respect of alleged lies told by the appellant. Leave was refused by the single judge. No renewed application was made before us, and we need say no more about it. The second ground related to the summing up to the jury of the issues which arose on the pathological evidence. Leave was also refused on this ground by the single judge. Although it was not formally renewed before us, it was a matter which caused us concern. The third ground related to an issue which arose late at the trial as to whether Dr Heath had dissected the shoulders and what he had said when he was recalled to deal with that. This had led to the instruction of Dr Hugh White, a pathologist agreed by the prosecution, to examine the body to see if the shoulders had been dissected. Leave was given on the dissection issue. It turned on the meaning of what Dr Heath had said when he was recalled. In the light of our other conclusions we did not find it necessary to consider this ground.

  8. Dr White's report, however, went far beyond the issue as to the dissection of the shoulders. For he was asked also to consider the conclusions of Dr Heath and Dr Carey, and to consider part of Dr Heath's oral evidence. His view was that there was no pathological evidence to indicate suffocation, and he was very critical of Dr Heath. He was the first of the five further pathologists to whom we have referred. The reports of two (Professor Ferris, Professor Emeritus at Auckland, New Zealand and Professor Hougen, a Danish forensic pathologist) came about by reason of the complaint concerning Dr Heath's conduct in connection with the present case made to the Policy Advisory Board for Forensic Pathology. Two further reports were prepared by Dr Anscombe and Professor Milroy. Both gave up their time to prepare their reports ``pro bono'', so concerned were they also about Dr Heath's conclusions. These further reports gave rise to grounds four and five. Leave was granted in respect of these grounds by the Full Court on 4 November 2004. Ground four was, in effect, that Dr Heath's evidence could not be relied on. Closely combined with it was a second new ground (five) which related to the evidence about whether the infraspinatus muscles were actually torn. Leave was also granted in respect of that ground on 4 November 2000. In the context of the appeal that became very much a subsidiary issue. It was not pressed before us and we need say no more about it.

  9. The second report prepared by Professor Ferris dated 20 January 2005 stated that on microscopic examination of slides of tissue taken from the infraspinatus muscle he had found that the haemorrhage in the muscle appeared to show early inflammation. If that was so, it followed that the damage was not simultaneous with the death. That would negative smothering as a cause. Professor Ferris's view was supported by Professor Christopher Milroy among others. This provided a sixth ground of appeal, and we formally grant leave in respect of it.

  10. On reading the papers in advance of the hearing we had a number of concerns about the trial, including in particular concerns relating to Dr Heath's evidence. Counsel were informed that we wished to hear submissions as to whether Dr Heath's conclusion as to the cause of death was properly reached and, in that sense, one that he was qualified to give. In the light of our concerns as to the safety of the conviction the appeal was conducted on a somewhat wider basis than the grounds of appeal themselves.

    Ground 6 - an interval between muscle damage and death

  11. We take this first because it was a short and discrete issue, which led to it being conceded on...

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