England and Wales Court of Appeal (Criminal Division) Decisions

R v. TRACY KYTE [2001] EWCA Crim 1753 (15th January, 2001)

Case No: 00/0091/X2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Monday 15 January 2001

LORD JUSTICE LAWS:

INTRODUCTORY

1 On 7 April 2000 at the Oxford Crown Court before His Honour Judge Francis Allen, Tracy Kyte was convicted by a unanimous jury of murder upon count 1 of the indictment and sentenced to life imprisonment. In the circumstances no verdict was taken on count 2, which charged an offence of causing grievous bodily harm with intent. It had been added as an alternative to the murder count. There was a co-defendant, Bryne Lincoln. At the commencement of Tracy Kyte's trial on 3 April 2000, and before the jury was sworn, he changed his plea to one of guilty to murder. He was sentenced to life imprisonment after the jury had convicted Tracy Kyte. She now appeals against her conviction by leave of the Single Judge.

THE FACTS

2 The account of the facts which follows is in part taken from the helpful summary contained in the Grounds of Appeal, supplemented and modified from other documents before us where that has been necessary.

3 In April 1999 the appellant (then aged 29) was living with her fiance Bryne Lincoln at a flat in Luton. Lincoln was then aged 26. The appellant's parents lived Dunstable with her sister Emma and brother Stephen, who were twins aged 16.

4 On Saturday 17 April 1999 Emma was taken by her mother to hospital, where she was found to be in labour. The family had not known that she was pregnant. She gave birth that evening. She had during 1998 been seeing a man called Sean Wearmouth, who was aged 28 in April 1999. She told her family that he was the father of her baby.

5 It was to be the Crown's case that on the evening of Sunday 18 April 1999 Lincoln and the appellant had arranged to lure Wearmouth to a place called the Tree Cathedral, a secluded spot near Dunstable, in order to confront him with the situation concerning Emma's child and "teach him a lesson". The appellant was to say that they had indeed planned to confront Wearmouth, but she had not expected or intended any serious harm to be done to him. It was common ground that she had collected Wearmouth from his home and driven him to the Tree Cathedral in Lincoln's car. There, Lincoln and a man called Roy Haynes were waiting for them. Haynes had been asked by the appellant to go to the Tree Cathedral with Lincoln and herself. He was called as a prosecution witness at the appellant's trial. He said that he had not been expecting any serious violence to take place; he had no desire to get involved and he kept out of the way in the trees. But from where he was he told the jury that he heard a confused encounter which sounded very violent. The judge was to summarise that part of his evidence to the jury thus (transcript p.15B):

"It was all very jolly to start with because he heard laughing and joking, but then, according to him, it turns to shouting and screaming and shouts of `Stop' and there was a big cracking noise. It was so deafening [the cracking noise] that he crouched down ... [He] said he was scared, and eventually he himself was so scared that he shouted `Stop', it was getting so loud. The defendant came to him and said, according to him, `Bryne needs help to put the body in the boot'."

6 At the end of incident Wearmouth, who had plainly sustained very serious injuries, was placed in the boot of Lincoln's car by Lincoln and Haynes. The appellant was to give evidence (which Haynes accepted might be true) to the effect that she had opened the car's back door so that Wearmouth might be put on one of the back seats; but Lincoln said he did not want blood in the car, and that Wearmouth was to be put in the boot.

7 As the Crown accepts, there was no evidence that the appellant herself committed any assault on Wearmouth during the course of the incident at the Tree Cathedral. However, as is in turn accepted on the appellant's behalf, there was ample evidence upon which the jury would have been entitled to conclude that she was party to a joint enterprise with Lincoln whose purpose was to inflict really serious injury upon Wearmouth. The evidence as to the nature and extent of the injuries sustained by Wearmouth at the Tree Cathedral may be summarised thus:

(a) Haynes' reference to a "big cracking noise" suggested that Wearmouth was or may have been struck over the head with a blunt instrument. Haynes had seen a two-foot length of scaffold pole concealed in Lincoln's clothing at the Tree Cathedral. The appellant herself said she had seen a bar or pole of that kind in Lincoln's possession during the incident. And such a piece of scaffold pole was later found by the police at the Tree Cathedral, in the area indicated to them by Haynes as the site of the violence.

(b) When Wearmouth was placed in the boot of the car, both Haynes and the appellant said that he had blood all over his face. In the boot he bled so profusely that it had to be hosed down afterwards. A Stanley knife was later recovered from Lincoln's tool box and a trace of Wearmouth's blood was found upon it. Wearmouth had defensive cut injuries to his hands, which could have been caused by the Stanley knife.

(c) Wearmouth was described by Haynes and the appellant as making a "gurgling" noise as he breathed. One of the injuries noted after death was a laceration, 15cm x 2cm, across the front of the neck which had partially severed the windpipe. The "gurgling" may have represented his breathing through his neck rather than his mouth and nose.

(d) There were later found 34 additional injuries on his body inflicted by a sharp weapon.

(e) The evidence was that he was unable to walk unaided to the car at the Tree Cathedral. Haynes said that he was dragged along the ground by Lincoln. The appellant said that Lincoln and Haynes held one arm each, and although he walked part of the way, for the rest he was dragged by the two men.

8 From the Tree Cathedral the appellant drove the car to somewhere near Haynes' address, where the latter was dropped off. It was plain from Haynes' evidence that Wearmouth, in the boot, was still alive at that point. The appellant was to tell the jury that after Haynes had been dropped off, she said to Lincoln that she wanted to go home, and she drove the car to her own address. There she got out and went into her flat. She said that Lincoln had told her that he was going to take Wearmouth to hospital. She did not see Lincoln again until he arrived home in the middle of the night, when he told her that the matter had been "sorted" and he did not wish to discuss it further.

9 Two days later, on Tuesday 20 April 1999, Wearmouth's dead body was found face down in a shallow pool of water close to a lay-by near Bicester. The place was 30 to 40 miles distant from the Tree Cathedral. Lincoln had previously lived in Bicester. Post mortem examination showed that Wearmouth had sustained a large number of blows and cuts to the head and body. The judge reported the evidence of the pathologist in the case, Dr Borek, in these terms (summing-up transcript, 10E):

"He died... from the inhalation of blood and from fractures, because he had got massive fractures of the skull. He had also got that cut across his windpipe. But she does not attribute death so much to the windpipe as to the fractures of the skull. He had got severe head injuries which caused blood to get into the windpipe, get into the breathing apparatus, the respiratory organs and that killed him."

10 The appellant and Lincoln were arrested on Thursday 22 April 1999 and interviewed under caution on that day and the next. The appellant throughout denied any involvement in the matter, although she was to accept at the trial that she had told some lies in the interviews. For his part Lincoln initially denied being involved but then confessed to the murder. In doing so, however, he made no mention whatever of anything that had happened at the Tree Cathedral, or of any involvement on the part of the appellant. It seems clear he was intending to shield her. He claimed to have been solely responsible for Wearmouth's death. He told the police that he had killed him at the lay-by near Bicester. He described having a fight with Wearmouth at that place and then said this:

"In the ditch by the side of the road where we were scrapping there was a big white battery which is about that big, and it's off a lorry or a tractor. I persisted to throw it on his head about three or four times, waited for a while to see if he was breathing. He wasn't breathing."

11 Lincoln said that he had left the battery at the scene. After Lincoln had made this confession the police went back to the lay-by; and there they recovered the battery which was lying in the remains of a hedge. There was no blood on it, but it had been exposed to a heavy rainfall over several days. Dr Borek said that any blood originally upon it could have been washed off.

12 Lincoln also volunteered certain unsolicited confessions while he was detained at the police station before he first went to court, and in the prison after his first remand in custody. It is not, we think, necessary to travel into the details of those.

13 On 4 October 1999, after Lincoln and the appellant had been jointly charged with the murder of Wearmouth, Lincoln served a defence case statement. In it he repeated his confession that he had killed Wearmouth at the lay-by. He also now admitted the happening of the earlier incident at the Tree Cathedral and stated that the appellant had then been present. He said that after Haynes had been dropped off, the car went on to the flat where he and the appellant were living, and the appellant left the car and went into the flat. He said that he alone had then driven the car on to the lay-by where he had killed Wearmouth.

14 Neither Lincoln's confessions to the police nor the contents of his case statement were before the jury. That is a circumstance of some considerable importance, as we shall explain, in light of the way in which the principal argument upon this appeal has been formulated. The jury knew that Wearmouth's dead body had been found at the lay-by and that the battery had been found nearby. As regards anything that may have been done with the battery, they heard the evidence of the appellant's mother, Mrs Kyte. She was called by the Crown. She did not conceal from the jury the hostility existing between her daughter the appellant and herself. Her relevant evidence may be summarised as follows. There was an occasion when she, Lincoln and the appellant were together at the hospital "on the Monday" as it was put - we assume the reference was to Monday 19th April 1999. She told the jury that at some stage when the three of them were alone there, Lincoln or the appellant told her that "it was sorted". She did not understand this at first, but was to say that both of them told her that they had killed Wearmouth. One of them said something about picking him up and taking him somewhere. At whatever was their destination (it looks as if this oblique reference was to the Tree Cathedral), Lincoln appeared and there was a fight. Wearmouth's throat was cut and he was hit with a crowbar or scaffold pole: they broke his legs and back. His back was broken by the battery being dropped on it: and "he was left in the water". Both of them asked Mrs Kyte to provide a false alibi for them on the night in question, by saying that they had been at her house for a meal. Lamentably, she was prepared to do exactly that, and did so.

15 It is convenient to notice at this stage (it is a matter to which we shall have to return) that one basis upon which the Crown's case was put against the appellant was that she had been with Lincoln at the lay-by when Wearmouth was finally disposed of; and the only evidence upon which the Crown was able to rely to support her presence there was what Mrs Kyte said she had been told.

16 In that connection it is convenient to describe one piece of evidence heard by the jury which tended to suggest that the appellant's account, that she had left the car to go into her flat and never went to the lay-by near Bicester, might well have been right. Her own evidence was that shortly after she got into the flat she had tried to call up Lincoln on his mobile phone, using her own mobile phone. She said that his answering service had come on, and that she had then rung off. This was supported by the fact that the telephone record showed that a 4 second call had been made to Lincoln's mobile phone at a time consistent with the evidence the appellant had given about it. But on the Crown's case to the effect that she had gone to the lay-by, she and Lincoln must have been together in the car when this phone call was made, which would be a nonsense. The Crown suggested that the appellant must have inadvertently pressed the "L" button on her mobile phone. That would have had the effect of calling up Lincoln's number.

17 In her evidence the appellant said she had witnessed fighting between Lincoln and Wearmouth at the Tree Cathedral, and that she had heard a cracking sound. The men put Wearmouth in the boot of the car. At that time there was no cut to his neck. He was gurgling or mumbling and kicking. She drove the car away, dropped off Haynes, and went home herself.

EXCHANGES WITH THE JUDGE

18 In order to understand the basis of the appeal in this case as it was first put (there has been an important late amendment, to which we shall come) it is necessary to describe the course of a series of exchanges between counsel and the judge.

19 After the evidence was completed, there followed substantial discussions between counsel and the judge as to the footing upon which the case against the appellant should be left to the jury. At an early stage the judge indicated his view that the appellant should be convicted of murder only if she went with Lincoln to Bicester. Mr Latham QC for the Crown urged an alternative possibility, namely that even if she did not go to Bicester, she would be guilty of murder as a secondary party if Wearmouth was already a dying man when he was put in the boot of the car at the Tree Cathedral. Mr Roberts QC for the defence submitted that there were in truth only two scenarios in which the appellant might properly be convicted of murder: (1) if Wearmouth was fatally injured at the Tree Cathedral, and (2) if he was killed at the lay-by and the appellant was there. The judge appeared to agree with this proposition, saying (first transcript 7C)

"I shall follow Mr Roberts in the matter..."

20 The next day both counsel indicated to the judge a concern which had occurred to them overnight - or rather, a concern which had occurred to defence counsel who had communicated it to counsel for the Crown. Lincoln had pleaded guilty on the basis that he had murdered Wearmouth at the lay-by with a car battery; but that would be quite inconsistent with a jury verdict that the appellant was guilty of murder upon the footing that the fatal injuries were inflicted at the Tree Cathedral. Counsel for the Crown suggested that the appellant might properly be convicted if, even though she left the car before it reached the lay-by, she knew or agreed that Lincoln would take Wearmouth somewhere and leave him to die or bludgeon him again. Defence counsel submitted (second transcript, 9F - 10C):

"What my learned friend says this morning is, well, there is another way even if she was not physically at the lay-by on which she could be guilty of murder. The difficulty is this is an entirely new case which was never put to her in cross-examination. My learned friend put the case against her very, very clearly yesterday in cross-examination, and the case he put against her was, `you were there from beginning to end, taking part in it'. He never put: `all right, you were dropped off at home but you knew that he was going to be dumped dead and you agreed with it'.

In our submission it cannot be right for the jury to be invited to convict a defendant on a basis that was never put to her in cross-examination and which, if I may say so, my learned friend has now fallen back on as an alternative to the Tree Cathedral..."

21 At length counsel for the defence submitted that the judge should leave the case to the jury on the basis which he had originally had in mind the previous day, namely that the appellant could only be convicted of murder if she went to Bicester. He submitted also that there was no evidence on which the jury could be satisfied that Wearmouth was fatally injured at the Tree Cathedral. At length the judge said, addressing prosecuting counsel (second transcript 18D):

"I shall not leave the basis on which you put this forward, namely that even if she was at home she might be guilty of murder.

MR LATHAM: So we are back to where we were at the beginning of yesterday afternoon?

JUDGE ALLEN: Yes."

That exchange was naturally understood by both counsel as containing an entirely clear indication by the judge that he proposed to direct the jury that the appellant could only properly be convicted of murder if they were sure that she was present at the lay-by: that was "where we were at the beginning of yesterday afternoon".

22 Counsel's speeches to the jury immediately followed. Towards the end of Mr Latham's speech for the Crown the judge interrupted. He said (third transcript, 1A):

"If he suffered fatal injuries at the Tree Cathedral she could be guilty of murder."

Both counsel clearly thought that this was a volte-face by the judge, following what they had considered to be his clear indication to the effect that he would direct the jury that it was only open to them to convict the appellant of murder if they were sure she had been present at the lay-by. The jury were sent out. A further discussion took place. The judge said (third transcript 2A ff:

"...plainly if fatal injuries were caused at the Tree Cathedral, then subject to intention, she would be guilty of murder, or, alternatively, if she went to the lay-by she would be guilty....

As I see it there are two bases, what I was cutting out from Mr Latham was the idea that she could be, so to speak, vicariously liable even though she was at home."

23 As we understand it Mr Latham had so far addressed jury on the footing that what he had to prove was that the appellant had been present at the lay-by. By the judge's intervention, therefore, he was in effect required to revise his whole approach late in the course of his closing speech.

24 At length the judge summed the case up to the jury in this way (summing up transcript 7B - 8A):

"Let us just look at the facts of the matter as they apply to this case, or the law as it applies to this case: I am going to deal with this by suggesting how you approach this matter, what you ask yourselves because that may be the best way to do it. You first of all ask yourselves whether the deceased died as a result of what happened at the Tree Cathedral. In other words, effectively this his body was dumped somewhere near Bicester, or, secondly, did he die only as a result what happened later, that is after the Tree Cathedral? Certain it is he did die near Bicester. As to whether he had suffered fatal injuries at the Tree Cathedral is a matter for you. That is the first matter.

The second matter is this: if it is not proved that he suffered fatal injuries at the Tree Cathedral, is it proved that she was present when he did suffer the fatal injuries? In other words, that she went to Bicester? If the first matter is proved, that he suffered fatal injuries at the Tree Cathedral it really does not matter whether she went to Bicester or not, that it obvious you may think. But those are the two prime questions you have to ask yourselves."

THE ORIGINAL GROUNDS

25 It is submitted for the appellant that it is at least a lively possibility that the jury convicted her on the footing that Wearmouth suffered fatal injuries at the Tree Cathedral, where of course it is common ground she was present. If so it is said, first, that there is no sufficient evidence that Wearmouth suffered fatal injuries at the Tree Cathedral: and proof of that would be a prerequisite of the appellant's guilt on a joint enterprise basis, so far as the case against her was put on the footing of her participation in the assault at the Tree Cathedral. Secondly, it is said that such a basis for the appellant's conviction would have been entirely inconsistent with the basis upon which Lincoln pleaded guilty - namely that Wearmouth's fatal injuries were inflicted by him with the battery at the lay-by.

26 We deal with this second point first. There is plainly nothing in it. On any view of the facts Lincoln was guilty of murder, and if there was evidence upon which the jury could properly be sure that Wearmouth suffered fatal injuries at the Tree Cathedral, they were entitled to convict the appellant on that footing, whatever the basis upon which Lincoln's plea was tendered. The real question is whether there was evidence upon which the jury could be satisfied that Wearmouth suffered fatal injuries at the Tree Cathedral.

27 We have no doubt whatever but that the answer to this question is in the affirmative. In paragraph 7 above we have summarised the nature and extent of Wearmouth's injuries sustained at the Tree Cathedral, and we do not here repeat the account there set out. On the evidence before them the jury were entitled to conclude not only that this appellant had been party to a joint enterprise to do grievous bodily harm to the deceased at the Tree Cathedral, but also that it was there that the fatal injuries were inflicted. In particular they were entitled to conclude that the skull fractures which the pathologist regarded as the cause (or primary cause) of death had been suffered by virtue of blows struck to Wearmouth's head with the scaffold pole.

28 Such a conclusion, that Wearmouth had in effect been killed at the Tree Cathedral would in our judgment have been entirely safe on the evidence the jury heard. The appellant's argument upon this part of the case, however, is that the jury did not have the whole picture. In particular they did not know that Lincoln had told the police that he had thrown the battery at Wearmouth's head, three or four times, until he stopped breathing. They knew something about the battery; this is what the judge said about it in the summing-up (11D - G):

"the evidence we have is in the form of admissions to I think Mrs Lynne Kyte by the undoubted murderer, that is the man in involved in this matter [obviously Lincoln], that he had broken the back by dropping the heavy battery - and the battery is obviously very heavy - on this man Sean. Well, you heard what was said about Mr Roberts how he could be mistaken about that and that it was on the head rather than the back, because the back, according to Dr Borek was perfectly all right; no injury there. That is all I need to say I think about the battery".

29 The essence of the appellant's submission on this part of the case is as follows. If the jury convicted the appellant on the Tree Cathedral scenario, they must have concluded that the fatal injuries were inflicted there, and in particular that the skull fractures had been caused by the scaffold pole. But given the details of what Lincoln said to the police, it must be a real possibility that those fractures were caused by Wearmouth's being struck by the battery at the lay-by. Thus a conclusion by the jury that Wearmouth suffered fatal injuries at the Tree Cathedral is necessarily unsafe.

30 This argument possesses a superficial but spurious attraction. At trial the appellant's representatives of course knew perfectly well what Lincoln had had to say to the police. In theory Lincoln could have been called as a defence witness to tell the jury that he had beaten Wearmouth to death at the lay-by - evidence which, if the jury accepted it or thought it might be true, would or at least might go to contradict the proposition that the fatal injuries had been inflicted at the Tree Cathedral. Lincoln might also have been called, we suppose, to tell the jury that the appellant never went to the lay-by. But Lincoln was not called as defence witness; and in our judgment it is to say the least extremely doubtful whether any competent defence advocate would have called him. His potential cross-examination was an obvious minefield to whose likely consequences defence counsel would not have wished to expose his client.

31 But in that case, in our judgment the appellant cannot rely in this court on the possibility that the facts of Lincoln's confession might have made a difference to the result in her case before the jury. There was no basis upon which the Crown (absent agreement) could have adduced Lincoln's confessions in evidence, even had the prosecutor wished to do so out of a general sense of fairness so that the jury should have what in a loose sense (that is, disregarding the rules of evidence about out-of-court statements by co-defendants) might be called the full picture. The appellant's submission therefore comes to this. Her conviction should be treated as unsafe because there was material calling its basis into question which was not before the jury: yet that material - Lincoln's confession - could only have been put before the jury at her option, an option which she did not exercise. It cannot be consistent with the elementary imperative of fair trial that a defendant should be allowed to say on appeal that his/her conviction is unsafe because, on what we must assume were good tactical or strategic grounds, he/she declined to call a piece of available evidence.

THE NEW GROUND

32 At the hearing of this case on 6 November 2000 we gave leave to the appellant to add a fresh ground of appeal. It was to the effect that, given that the judge left the case to the jury on two bases, he should have directed them that if they were to convict they must arrive at a unanimous verdict as to the particular basis upon which they condemned the appellant as guilty. In his supplemental skeleton Mr Foy QC for the appellant referred to Brown 79 CAR 115. In Boreman [2000] 1 AER 307, Otton LJ giving the judgment of this court summarised the effect of Brown thus (310j - 311a):

"The Court of Appeal quashing the convictions held that in such cases two principles applied: (1) Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury... (2) However, where a number of matters were specified in the charge as together constituting one ingredient in the offence, and any one of them was capable of doing so, then it was enough to establish the ingredient that any of them was proved: but (because of principle (1)) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly."

33 Mr Latham QC for the Crown submitted that there was no inconsistency between the alternative bases for conviction put before the jury such as would require a direction about unanimity following the case of Brown. He referred to Giannetto [1997] 1 CAR 1, where (to put the matter shortly) there was a factual overlap between the modes of the crime's alleged commission, as they were put before the jury, so that the judge was not required to give a Brown direction.

34 In Boreman Otton LJ stated at 317c-d:

"... applying the second principle enunciated in R v Brown, it seems to us that where the two possible means by which the killing is effected comprise completely different acts, happening at different times, it can properly be said that the jury ought to be unanimous on which act leads them to the decision to convict."

35 In this case two very distinct alternative cases were put before the jury. Was Wearmouth in effect killed at the Tree Cathedral or at the lay-by? We have already demonstrated that it was critical for the jury to decide upon the location where the fatal injuries were inflicted. Now, if they were satisfied that in reality Wearmouth was killed by what had been done to him at the Tree Cathedral, that was one thing, and they were quite entitled to convict the appellant on that basis. If however, they were satisfied that Wearmouth was not fatally injured at the Tree Cathedral, but that the effective cause of his death was the injury done to him by Lincoln at the lay-by, then they could not have convicted the appellant (as the matter was left to them by the judge) unless they were sure that she had been present at the lay-by. In all these circumstances, we have concluded that Otton LJ's reasoning in Boreman applies and the judge was accordingly bound to direct the jury that if they were to convict the appellant, they would have to be unanimous as to the basis for it: Tree Cathedral or the lay-by at Bicester.

CONCLUSION AND POSTSCRIPT

36 The judge gave no such direction. There is therefore a possibility, and not merely a fanciful one, that some members of the jury concluded the case on one basis and others upon the other basis.

37 For this reason the conviction is unsafe and must be quashed.

38 There are two postscripts. First, with respect to the learned trial judge, we consider that it is greatly to be regretted that he allowed the muddle to develop which is apparent from the transcript of exchanges between judge and counsel. As we have shown he first indicated a view that the appellant should be convicted of murder only if she went with Lincoln to Bicester: a view which was at variance with what had always been the real thrust of the Crown's case. After having been persuaded that there were in truth two possible scenarios, he later reverted to his original view ("where we were at the beginning of yesterday afternoon"), only to resile from it during the course of Crown counsel's closing speech, which was of course fashioned so as to be loyal to what the judge had earlier said. Although the basis upon which the case was ultimately left to the jury was proper, this muddle should not have occurred and the judge's volte-face was particularly unfortunate. Secondly, we should record our gratitude to Mr Latham QC for providing the note which he had prepared, in part at least in order to support the proposition that even if Wearmouth was not fatally injured at the Tree Cathedral, and the appellant left the car before it got to the lay-by, nevertheless she might properly be held guilty of murder as a secondary party. We also have a note from Mr Foy QC for the appellant in response. These documents do not however affect the reasoning which has led to our judgment upon the substance of the case.

39 We propose to hear further argument as to whether the appellant should be put on trial again for the offence of murder or we should substitute a conviction for the offence of causing grievous bodily harm with intent.