Dillon, R v

In a murder trial, expert evidence that leaves open alternative mechanisms of death does not prevent a jury from being sure of the prosecution case. The jury may assess all the evidence and accept the expert’s opinion as to the most likely cause.

A summing-up must be assessed as a whole. A judge may comment on the evidence, provided the issues are left fairly to the jury and the judge does not improperly enter the arena. Directions on intent remain fair where they consistently require the jury to decide whether the defendant intended really serious physical harm, rather than equating intention with the injury actually caused or with mere foresight.

The appellant was convicted of murder at Stafford Crown Court on 8 October 2007 and sentenced to life imprisonment, with a minimum term of twelve years and 195 days.

The deceased died after an altercation in which the appellant punched him, caused him to fall over a wire fence, and was alleged to have kicked or stamped his head. The pathologist regarded a kick as the most likely cause of the fatal brain haemorrhage, but accepted that an awkward fall was a possible alternative.

On appeal, the appellant contended that the judge’s directions and answer to a jury question on really serious physical harm improperly favoured the prosecution and confused intention with foresight or actual injury. He also contended that the medical evidence could not establish that a kick caused death.

1. Appeal dismissed. The conviction was safe.

2. The medical evidence did not deprive the jury of a proper evidential basis for finding that a kick caused death. An expert may accept that several mechanisms are possible while maintaining an opinion as to the most likely cause. It is then for the jury to assess the evidence as a whole and decide whether the prosecution has proved its case to the criminal standard.

   There was compelling evidence that the appellant kicked the deceased’s head. The jury could consider that evidence with the appellant’s own account of the fall and of his alleged minimal use of his foot. They were entitled to reject the suggested awkward-fall explanation and to find that the kicking caused death.

3. The directions on intent, including the response to the jury’s question, did not render the trial unfair. A judge is entitled to comment on the evidence if the issues are left fairly to the jury and the judge avoids improperly descending into the arena.

   Read as a whole, the summing-up repeatedly made clear that fact-finding was for the jury and that the issue was whether the appellant intended to cause at least really serious physical harm. The judge’s comments could have indicated his view of the strength of the prosecution case, but they did not confuse foresight of consequences with intention. The written question requiring the jury to decide whether it was sure of the requisite intent reinforced the correct task.

4. Neither the individual passages nor their cumulative effect created doubt about the safety of the conviction.

• Court of Appeal (Criminal Division): appeal against conviction dismissed: [2009] EWCA Crim 678.
• Stafford Crown Court: the appellant was convicted of murder on 8 October 2007 and sentenced to life imprisonment, with a recommended minimum term of twelve years and 195 days.