COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Mellor
Sitting at Ipswich Crown Court
Strand, London, WC2A 2LL |
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B e f o r e :
THE HONOURABLE MR JUSTICE JACK
and
HIS HONOUR JUDGE GORDON
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REGINA |
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- and - |
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STEVEN PUACA |
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Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr W Coker QC and Mr C Morgan (instructed by CPS) for the Respondent
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Crown Copyright ©
LORD JUSTICE HOOPER :
Introduction
The position of Dr Heath
The grounds of appeal
Ground 6 – an interval between muscle damage and death
The safety of the conviction – the evidence at the trial and the part of Dr Heath
"The relationship … was stormy. Both drank heavily. From time to time the defendant would hit the deceased. Sometimes her friends and members of her family saw bruises on her face and body. Twice she reported the violence to the police and as a result the defendant was convicted of common assault on 19/10/2000 and placed on probation and on 18/12/2001 was convicted of assault occasioning actual bodily harm and made subject to a community rehabilitation order."
We record that Miss Tindsley was 175 centimetres high and weighed 53 kilos. The appellant was about the same height and weighed 82.5 kilos.
"3. An expert witness should state the facts or assumption on which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion."
"There is no pathological evidence, or any other evidence to suggest death was due to asphyxia due to upper airway obstruction."
As to the coarse haemorrhages he said that they were a feature of hypostasis rather than an indication of asphyxia. He said that there was no evidence of injuries around the face and nose to suggest that there had been any forced upper airway obstruction. In his view:
"Therefore there is no basis whatsoever for Dr Heath to conclude that the mouth and nose have been forced into a yielding surface such as, the bedding material."
He wrote:
"The only abnormality present is extensive tearing and haemorrhaging in the muscles in the region of both shoulder blades. Dr Heath's view that this has been caused by forceful movement of the upper limbs during airway obstruction borderlines on the fanciful. In my opinion the muscle tearing seen has most likely originated from a terminal epileptiform seizure where tearing of the muscles of this kind is not uncommon."
He went on to say that the toxilogical report of Dr Williams provides clear evidence of a mixed drug substance overdose and:
"In my opinion the only reasonable conclusion to come to in relation of the cause of death is mixed drug substance overdose."
"1.2.1 ….
When taking into consideration the following observations made at the scene of death and at the post-mortem examination, it is my opinion that the death of Jacqueline Tindsley was not due to mixed substance abuse but an upper airway obstruction.
All the following observations had to be accounted for in order for the full assessment to be made.
Scene findings:
The extensive blood staining over the duvet.
The position of Jaqueline Tindsley's body after her death.
The broken glasses where the lens had become dislodged.
Post-mortem findings
Fine petechial haemorrhages over the front of the scalp.
The marked tearing of the infraspinal muscles associated with the extent of haemorrhages.
The liquid blood.
The bruises over the front of the shins and left ankle.
1.2.2 The above observations do not reflect a death due to mixed substance abuse.
1.3 …. an epileptiform seizure would not account for the degree and symmetry of the infraspinal damage or the final posture obtained by Jacqueline Tindsley. "
He stated that the posture at death and the amount of blood staining was not accounted for by drugs overdose or epileptiform seizure. He said that he would not expect soft tissue damage to the face or nose to be caused by being pressed into bedding material.
"Surprisingly enough you do not see people who are dying who are incontinent of urine and faeces as often as one might imagine. So it is an observation and we see it quite a lot in a sort of criminal setting."
That comment inevitably led to cross-examination (Transcript 14 November, page 35). His answer was put to him and it was suggested that one sees this feature in a lot of settings. He repeated what he normally observed saying that very few people are incontinent during the dying process. He continued:
"But in the criminal setting I think I see it more often where there has been some sort of fear process going on and I am not in any way going to say that this indicates that there is a fear process present but that is the answer that I would give. I do not see why it happens but people who have been stabbed or people who have died in traumatic environments, they seem to void their urine more often. But that is just my observation. I am not saying that it is significant. It is [?not] 100% or anything like ….."
It was then pointed out to him that the deceased was taking diuretics and he then went on to say:
"I am not making any conclusions [from] the fact that her knickers were wet at all."
A few answers later he said that he was not aware of all the details of what she was taking.
"All the text books describe asphyxia and the cardinal signs of it, thus implying that this was a cardinal sign of asphyxia."
In cross-examination he was asked whether the fact that the eyes were congested should be taken into account. He replied:
"I personally think that that is important but I would not because she has been laying face down indicating that it is a diagnostic feature. Although I personally think that it is important. I would not use that to advance my argument."
This is not an easy answer to follow and, at least with the benefit of hindsight, it would have been better if Dr Heath had simply said that the congestion in the eyes was of no relevance to the issue of the cause of death (if that is what he thought).
"To get haemorrhaging in the lungs that is normally associated with the asphyxial process." (Transcript 13 November, page 22)
He said to Mr Coker that one could get this in other sorts of deaths and that it was not a conclusive sign.
"Descriptions of an abnormal fluidity of the blood seen at autopsy in asphyxia deaths are part of the forensic mythology and can be dismissed with little discussion…it is irrelevant in the diagnosis of asphyxia."
Dr Heath then made reference to the Dover tragedy in which 58 Chinese illegal immigrants died in a container and said that fluid blood was present in their bodies. Later in re-examination (Transcript 14 November, page 83) he was asked what else could have caused the finding of liquid blood and replied:
"That has to be some asphyxial process."
"They are in my opinion important observations and they indicate again some of the observations you get in an asphyxial process, the development of the petechial haemorrhages. You get a number of processes in asphyxia, petechial haemorrhage formation; you get congestion of organs, oedema in the lungs, the fluidity of blood and also separately described congestion on the external surface of the body."
Petechial haemorrhages, he said, were caused by the rupturing of the blood vessels. He explained the mechanics and on a number of occasions he repeated that one must look at the totality of findings. As to the petechial haemorrhages in the skull he refused to accept that they were connected with his reflection (peeling back) of the scalp. He said there were haemorrhages within the softest tissue in the scalp as opposed to torn end vessels and he supported that with photographs (Transcript 14 November, page 50). Dr Heath's ability to distinguish between haemorrhages caused by his reflection of the scalp and genuine petechial haemorrhages is another matter of challenge: but it is not something on which we are able to form any view.
"It is quite common, that may not be a fair description, but on occasions during the asphyxial process, because of the build up of blood pressure and the loss of the integrity of the blood vessels where they become more permeable, you get the petechial haemorrhages, that I described, present in the nose and the mucus membrane of the nose and these rupture. On occasion these can rupture in such a way it can aerosol blood and it would aerosol to the distance of the gentleman in the chair in front of me so that she [sic] shoots quite a long way away from the body. If you are on bedding that would pass into the material that is closest to the face which, in my opinion, is the way it has got there. So we have a build up of pressure, rupture of these haemorrhages and again exuding blood and again a finding within asphyxial cases."
It was put to him that the purging of blood from a person who dies in a face down position is common. He said that it was not.
"Yes, I have done nothing more than … I have not used that as a criteria for the asphyxia process in this case."
Again Dr Heath was saying something was relevant and then discarding it after a further question.
"Particularly in cases of suffocation, you tend to get very few petechial haemorrhages and in some cases you get none whatsoever."
"Q. You might be concluding there postural asphyxia or any of these other forms which do not involve somebody deliberately restraining somebody in that way? The whole thing is founded on that, is it not?
A. I think that is an important finding, yes, and I have indicated that all the time. You might well be right on that assessment you have given."
We already remarked on the ambiguity which can arise as to "asphyxia". This important passage left it unclear to the jury whether Dr Heath was saying that without the damage to the infra spinatus muscles he would still have said that this was a death by asphyxia through upper airway obstruction.
i) Extensive blood staining on the duvet has no significance in assisting in the determination of the cause of death in this case. It is indicative of the deceased having been lying in a face-down position on the bed for a period of time after death. In such a position it is quite common for blood and bloodstained fluid to leak or purge from the mouth and nose and thus stain the bedding beneath. In referring to this in his statement of 11 November 2002, he comments 'that vessels in the nose had ruptured and blood had been expelled from the nose. This is not an uncommon finding in asphyxial cases'. I agree with this but equally the leakage of blood from the mouth and nose is not uncommon in a variety of types of death including natural and drug over dosage, where the deceased had been lying face-downwards after death for a period of time.ii) The position of the body after death does not assist in the ascertainment of the cause of death. It is clear that the deceased must have been in a face-down position on the bed, possibly crouching in a foetal position, and that subsequently she was turned over onto her back. The position of her arms and hands in the photographs, if fixed by rigor mortis in a flexed (elbows bent) attitude, would suggest that she had been lying in a crouched face down position for some hours after death.
iii) It is no more than speculation to comment on how the glasses of the deceased became broken and the lens dislodged.
iv) The 'fine petechial haemorrhages' on the under surface of the scalp are of no significance whatsoever. They are usually caused artefactually by peeling back the scalp from the pericranium of the skull at autopsy causing tearing of small blood vessels. They do not represent an indicator of asphyxia. Furthermore, in the face-down position, congestive haemorrhages, such as those seen on the skin, would be likely to occur in the post-mortem interval due to the position and posture of the deceased.
v) The tearing and associated haemorrhage in the infraspinatus muscles was, according to Dr Heath 'consistent with having been caused by forceful movements of the upper limbs during the upper airway obstruction'. This, in my view, is a speculative, if not fanciful, opinion. There was no evidence of bruising of the skin of the upper arms, such as might have been expected if they had been forcibly grasped in an attempt to restrain the deceased. Furthermore, there was no skin or subcutaneous bruising on the back, over or between the shoulders, which might also have been expected if the deceased had been forcibly held down. In his statement of 11 November 2002, Dr Heath opines that 'moderate to severe force would have been required to restrain Jacqueline Tindsley' yet in his original report he comments on the lack of restraint injuries or more specifically restraint 'wounds'.
vi) If a body is moved after death and after rigor mortis has become established, then the repositioning of the body may result in tearing of the muscles. In fact this is the only way that rigor can be broken, e.g. to extend an arm bent at the elbow. A consequence of this muscle damage would inevitably be that there would be some leakage of blood into the muscles. This bleeding would be exaggerated if the affected area is a dependant part of the body and affected by gravity, e.g. the back.
vii) Having dealt with a number of cases of suffocation due to upper airway obstruction I have never come across a case where tearing and bleeding into the muscles of the back had occurred.
viii) The fluidity of the blood is not an indicator of asphyxia. There is absolutely no scientific basis on which this can be asserted. It is a matter of concern that an experienced forensic pathologist would rely on such a finding, even to a limited extent, when it has been completely discredited and dismissed for many years.
ix) The bruises on the shins and left ankle are trivial and non-specific. They could have occurred as a result of minor knocks, bumps or falls.
The summing-up
"The prosecution case is that on the evidence that you have heard you can be sure that smothering, suffocation, was the cause of death. The defence put forward as alternative propositions mixed drug toxicity and epileptiform seizure or damage in breaking the rigor mortis.
If, members of the jury, having considered all the evidence and how it fits together you were to conclude that either or both of those alternatives was a possibility on the evidence, so it is leaving it purely on the expert level then the prosecution could only displace that by making you sure that suffocation is indeed smothering, is indeed the answer.
Dr Heath remains of the view that this particular muscle damage that he saw that did not involve dislocation can only be explained by, in effect, the desperate efforts of Jacqui Tindsley to escape the effects of the restraint upon her.
The defence put forward the other explanation as to which I have referred. If you conclude, members of the jury, that you could not be sure that the bilateral muscle damage could only be explained in the way in which Dr Heath has sought to explain it, then it would follow that on the pathological evidence suffocation becomes no more than something that may be more or less likely according to your findings, but in effect in the words of Professor Crane, something that cannot be ruled out, as Professor Crane certainly does not, unlike, perhaps, Dr Cary, rule it out as the cause of death in this case. Unless, members of the jury, there is in the rest of the evidence, the non-expert evidence, that which makes you sure that death by smothering is not merely something that might be or could be so, but something that actually is so, so that you can be sure about it. It is for you to put the evidence together and see how it fits and where it takes you, what it makes you sure about, what it leaves you in doubt about." [We have removed one paragraph break before the word "Unless" to reflect what we believe the judge was saying.]
That passage combined with Mr Coker's concession would provide a third ground sufficient to dispose of the appeal in favour of the appellant.
Outcome