England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13th November 2009

1. MR JUSTICE OWEN: On 16th October 2008 the applicant, David Farmbrough, was convicted of the murder of his son, Peter Farmbrough, at the Crown Court at Norwich. He now renews his application for leave to appeal against conviction following refusal by the single judge.
2. The deceased was aged 19 at the date of his death. He lived with the applicant in an one-bedroom flat at 209A Silver Road, Norwich, and worked at the local Pizza Hut.
3. At 11.37 pm on 31st July 2007, the deceased made a 999 call from his mobile telephone requesting an ambulance. He told the operator "I've been stabbed", and it was apparent that he was having increasing difficulty speaking. At 11.37 and 58 seconds a call was placed to the emergency services by the applicant from his mobile telephone. The call lasted seven seconds, but the applicant did not speak. He, the applicant, made a further emergency call at 11.38 and 38 seconds and was still engaged upon that call when the emergency services arrived at 209 Silver Road. Paramedics and the police were admitted to the flat by the applicant. They found the deceased lying unconscious on the kitchen floor. There was a black handled knife on the floor close to him.
4. The applicant had told emergency services that his son must have fallen on the knife, and he told the police the same on their arrival. The deceased never regained consciousness. He was transported to hospital by ambulance where he was pronounced dead shortly before midnight, the cause of death being a single stab wound to his lower chest.
5. It was the Crown's case that the deceased had argued with his older brother, Ashley, on the telephone that evening and must then have argued with the applicant. In the course of that argument, the applicant had inflicted the single stab wound. An enhancement of the recording of a the initial 999 call made by the deceased made it possible to hear the applicant in the background saying "Say it was an accident, mate" and "Peter, say it was an accident".
6. The defence case was that the knife wound was self-inflicted and that the deceased must have killed himself, either deliberately or accidentally. In a series of police interviews, the applicant said that he and the deceased had had a good relationship. The deceased had been alone in the kitchen when the wound was inflicted and he had been in the living room. He heard the deceased call to him but thought it was something trivial and did not rush. When he did go to the kitchen he had to push the door to enter, as the deceased was lying on the kitchen floor behind the door. He was not aware that the deceased had called the emergency services. The evidence given by the applicant at trial was consistent with the account that he had given in interview.
7. The principal ground of appeal that the applicant seeks to argue is directed to a ruling by the learned judge to admit certain evidence under the bad character and hearsay provisions of the Criminal Justice Act 2003. The prosecution sought to adduce in evidence a statement of a complaint to the police made by the deceased on 11th August 2004, in which he said that the applicant had assaulted him, raining punches on him, putting his hands around his throat, pressing his windpipe, before shouting "Get out of my house, you're no son of mine". The statement contained a general allegation that:

"Over the past 8 years my father has been violent towards my brother and myself. He as thrown me downstairs, head-butted me, tried to strangle me and punched me."

That allegation was never tested in court because on 31st August 2004, a matter of three weeks after the complaint had been made, the deceased withdrew it in a statement in which he said:

"When I made the statement I was angry at my dad but since then I have had time to think about things and believe the whole incident was confusing and partly my fault . . . I have been in contact with my dad . . . and we are getting on OK now and therefore I do not want the police to arrest my dad."

8. Ancillary to that statement was evidence from Sarah Vosper, who was the deceased's great aunt. She said that she saw the deceased at the time of the allegation to the police, with injuries to his face and neck which the deceased had told her had been caused by his father.
9. The applicant seeks leave to argue that the learned judge erred in admitting the bad character evidence under the in gateways section 101 of the Act of 2003; alternatively, that he should have excluded the hearsay bad character from Sarah Vosper under section 28 of PACE; and thirdly, that the learned judge's direction to the jury in relation to the bad character evidence was flawed in that he failed to warn them against placing undue reliance upon it.
10. The application by the Crown to adduce the evidence in question had been made in reliance upon gateways (c), (d) and (f). As to gateway (c), the important explanatory evidence gateway, the application is formulated in the following terms:

"The important matter requiring an explanation is 'Why would he kill his son?' The explanation, in part at least, the prosecution submit, is that the defendant is a man who is capable of acts of extreme violence against his family -- most specifically his son Peter and his wife. Evidence that he can turn from normal behaviour to very violent behaviour during a family row, in these circumstances, is important explanatory evidence and its value for understanding this case as a whole is substantial."

As to gateway (d), the application is formulated in the following manner:

"The matters in issue between the defendant and the prosecution include (but are not confined to) the question whether he has a propensity to commit offences of the kind with which he is charged."

And thirdly, under gateway (f):

"It was submitted that in interview the defendant did give a false impression about himself. He stated on a number of occasions that he had a positive relationship with his son Peter, which never involved violence. He maintained that any aggression came from his son and that his role was to calm him down and placate him . . . "

11. It is important to note that the deceased was the sole source of the allegations, both in the statement that he had made to the police and in relation to what he had said to his great aunt. The evidence was therefore subject to the hearsay provisions in the 2003 Act. Under section 116(2)(a) what he said to the police or to his great aunt was prima facie admissible because, of course, he was dead. But the admissibility of the hearsay evidence was also subject to the provisions of section 78 of the Police and Criminal Evidence Act 1984.
12. Thus, the learned judge had to address both the bad character and the hearsay aspects of the application. He did so in a detailed ruling given on 7th October 2008. He concluded that so far as the bad character provisions were concerned, the evidence was admissible under each of the three gateways relied upon by the prosecution. In relation to gateway (c) he said this:

"Here we are looking at this precise relationship, not only general propensity to use violence or behave aggressively. It is being looked at in the context of what is alleged to have passed on the night that Peter Farmbrough died. Under those circumstances, it is important explanatory evidence."

As to gateway (d) he said:

" . . . there is an issue between the defendant and the prosecution. The issue is whether or not the defendant had a tendency to use violence against his son, or at the very least, to behave in a threatening argumentative and aggressive way towards him."

But he continued:

"It is best to consider this application in the context of the third application to correct a false impression given by the defendant.

The false impression is plain that this was throughout a normal and friendly relationship and that the night of his son's death was no different."

He concluded his ruling in the following terms:

"It seems to me that in view of the clear conditions for admissibility under s.116, this section is somewhat redundant in this case, but if one goes through the tests of how much probative value, how important the evidence is, the circumstances in which the statements were made and how reliable the statements and the maker of the statements appears to be, then in my submission, these tests are passed in all cases."

He went on to rule that all of the evidence was admissible.

13. Mr Malcolm, on behalf of the applicant, advances a number of points in relation to the bad character evidence, but in essence his submission amounts to the proposition that under neither gateways (c), (d) or (e) were the statutory requirements satisfied, as the issue in the case was simply whether the father used the knife on his son. In our judgment, that is to take too narrow a view of the issues.
14. In refusing leave, the single judge said in relation to the bad character point:

"Although I am doubtful about 101(1)(d) the 'bad character' evidence was, I consider, plainly admissible under 101(1)(c) and 101(1)(f). McKenzie [2008] EWCA Crim 758 calls for caution before admitting evidence which fall short of previous convictions but the evidence here fell within a narrow compass and did not in my judgment result in the trial becoming unnecessarily complex or unfair."

Those are observations with which we are in full agreement.

15. The learned judge then addressed the hearsay aspect of the application. He did so in the following terms:

"I now turn to the hearsay provisions. Having established that this material is relevant and admissible, all of the material I have referred to is hearsay material in which the source is this victim. As such, this material is admissible under section 116 subject to the court's discretion under section 78. The conditions are satisfied because the maker of the statement is dead."

16. In this context Mr Malcolm QC invited our attention to the decision of this court in R v Z [2009] 1 CrAppR 34 at page 500, and in particular to paragraph 27 of the judgment of the court which was given by Stanley Burnton LJ. The relevant passage is in the following terms:

"However, section 116(4), and in particular paragraph (b), fell to be considered. Moreover, since it was sought to admit it as evidence of bad character, it had to be sufficiently cogent for a reasonable jury to be able to be sure of its truth. Thus, if the judge was minded to admit the evidence under section 101, he had then to consider whether the jury would reasonably be able to be sure of its truth."

17. Mr Malcolm takes the point that the learned judge did not in terms address that question, and argues that if he had done so he could not properly have concluded that the evidence was sufficiently cogent for a reasonable jury to be satisfied as to its truth, bearing in mind the circumstances in which the statement was made to the police, the fact that it had not been tested in cross-examination, the fact that the evidence as to what he had said to his aunt did not accord fully with what he had said to the police, and finally, to the fact that his brother gave evidence rejecting the general assertion that the applicant had been violent to both him and to the deceased.
18. Mr Malcolm also placed considerable emphasis upon the fact that the deceased withdrew his statement to the police; but as the learned judge observed in his ruling (page 9 G-H):

"20 days later, they were reconciled in some form and Peter Farmbrough made a withdrawal statement. It is significant that he did not renounce the allegations that he had been treated violently, but accepted that he may have played his part."

19. It is important to note that in the decision in Z, the court observed that section 114(2) contains a list of matters that it is mandatory for the court to take into account when deciding whether to admit hearsay evidence under section 114(1), and that a judge, when giving a ruling on an application under section 114(1)(d), should make it clear that he has taken them into account, although that did not mean that he had to arrive at an express conclusion in relation to each of them. It is also to be noted that at paragraph 25 of his judgment, Stanley Burnton LJ said:

"The Court of Appeal will not readily interfere with a trial judge's decision to admit evidence under section 114(1)(d). It will do so, in general, only if his decision is marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made."

20. In our judgment, there is no real prospect of success in the contention that the learned judge erred in admitting the hearsay evidence. Although he did not expressly address each of the considerations to be taken into account under section 114, the learned judge made it clear in the course of his judgment that he had the section very much in mind, and was considering all the relevant circumstances of the case. In particular, he said:

"It seems to me that in view of the clear conditions for admissibility under s.116, this section is somewhat redundant in this case, but if one goes through the tests of how much probative value, how important the evidence is, the circumstances in which the statements were made and how reliable the statements and the maker of the statements appears to be, then in my submission, these tests are passed in all cases."

21. The third of the principal grounds of appeal is directed to the manner in which the learned judge directed the jury as to the bad character evidence, it being asserted that his direction was flawed in that he failed to warn the jury against placing undue reliance on that evidence.
22. His direction is to be found at page 20E to 21B of the transcript of the summing-up, in which the learned judge said:

"You have been told all about the background relationship between the defendant and his son. That evidence has been admitted because a jury understandably wants to know what the background is between the defendant and his son. Whether what the defendant is alleged to have done is out of character, or whether he had behaved in a similar way before towards his son, obviously, you will have to decide; first of all whether you accept any of the allegations made, and therefore if you do so, whether the defendant has a tendency to use violence towards his son, because the prosecution say that it is relevant to his denial that he used any violence on this night. It is for you to decide whether he has used such violence, and whether he has such a tendency.

The defendant's previous behaviour is only background. It does not tell you whether he has committed the offence with which he is charged. The allegation here is of the deliberate use of a knife with intent to kill or cause serious bodily injury, and it is not suggested that the defendant's previous behaviour towards his son went anywhere near that far. As such, the defendant's previous use of violence, if you found it to occur, would be as consistent with manslaughter as with murder.

The prosecution do not and cannot suggest that the evidence of the defendant's past conduct proved he committed murder or manslaughter. Of course it does no such thing, it is simply part of the background to the important evidence of what was seen and heard on the night that Peter Farmbrough died.

23. In relation to this aspect of the case, the learned single judge said:

"The learned judge could have said more on the topic of not placing undue reliance on the bad character evidence but his direction [the passage to which we have just made reference] is, I consider, adequate. The jury must have had well in mind in so straightforward a case that the evidence of previous behaviour was, as the learned judge put it, only background."

Again, we are in full agreement. It cannot, in our judgment, be argued that the summing-up was defective in this regard so as to render the verdict unsafe.

24. There remains the contention at paragraph 4 of the grounds of appeal that the summing-up was flawed in a number of other respects. The single judge categorised the complaints as essentially makeweights. In his skeleton argument, Mr Malcolm acknowledged that some of these could be so characterised, but submitted that their overall effect, particularly in the light of the inclusion of the bad character/hearsay evidence, as to render the verdict unsafe. But given our conclusion as to the substantive grounds of appeal, the criticisms, such as they are, could not have that effect. It follows that this application is dismissed.