Court of Appeal in Northern Ireland Decisions

Neutral Citation No. [2012] NICA 6	Ref:	COG8455
Judgment: approved by the Court for handing down	Delivered:	20/04/12
(subject to editorial corrections)


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ THE QUEEN -v- RAMUNAS BALSERIS _______ Before: MORGAN LCJ, COGHLIN LJ and McLAUGHLIN J ______

COGHLIN LJ (delivering the judgment of the court)

[1] This is an appeal from a trial before Hart J at Dungannon Crown Court at the conclusion of which, on 11 March 2010, Ramunas Balseris ("the appellant"), together with his co-accused Andrius Dunauskas, was convicted of the murder of Shaun Fitzpatrick on 23 March 2008. The appellant was sentenced to life imprisonment and, on 7 May 2010, Hart J imposed a tariff of 20 years imprisonment. The appellant was represented by Mr O'Donoghue QC and Mr Devine while Mr Terence Mooney QC and Mr Steer appeared on behalf of the respondent. The court wishes to acknowledge the assistance that they derived from the carefully prepared and succinctly delivered submissions presented by both sets of counsel.

[2] In addition to his conviction the appellant also wishes to appeal against sentence but, at the request of Mr O'Donoghue QC, the court agreed to postpone further consideration of the sentence until after delivery of this judgment.

The background facts

[3] The factual background was helpfully and clearly set out by Hart J in the course of his sentencing remarks from which we gratefully adopt the following paragraphs:

"[2] Mr Fitzpatrick made no secret of his homosexuality, and his sexuality appears to have been relatively well known, at least by those who frequented Donaghy's Bar in Dungannon. He was in the bar on Saturday night, 22 March, as were the defendants . . . By its verdict the jury has accepted that the defendants waited outside the bar after closing time and followed Mr Fitzpatrick as he made his way home along the Donaghmore Road. This was not the most direct route home for either of them, and it is therefore clear that they decided to follow him, and I have no doubt whatever that they did so because they knew that he was homosexual, and intended to attack him, and did attack him, for that reason. They caught up with him and subjected him to an exceptionally vicious and prolonged attack.

[3] The forensic evidence established that there were two scenes of attack, the first being close to the pavement on the alleyway leading up to the gap between numbers 32 and 36 Donaghmore Road. The presence and distribution of blood at that spot suggested that at the very least he was severely kicked at that point. He was then dragged up the alleyway until he was between the gable walls of 32 and 36 Donaghmore Road, where a further and even more severe attack was inflicted upon him, as can be seen from the distribution of the blood spots over the walls on either side.

[4] The post mortem report of Dr Bentley, the Deputy State Pathologist for Northern Ireland, showed that Mr Fitzpatrick died as the result of blunt force trauma of the head and neck. Dr Bentley found no fewer than 52 sites of injury across Mr Fitzpatrick's head, neck, arms, legs and trunk. These were not all of the same severity, and some of the injuries represent injuries to the outer surface of the body on top of deeper injuries underneath the same site of injury. Nevertheless the injuries were very considerable in both their number and extent.

[5] In particular the injuries included:-

A broken nose.

Two broken teeth.

Four broken ribs.

A large and deep laceration of the chin, with multiple lacerations of both lips which were split open.

The blow, or blows, to the front of the neck caused fractures of the hyoid bone in the neck, together with multiple fractures of the cartilage of the voice box.

Dr Bentley's opinion was that the injuries to the neck indicated that the blows delivered to the front of the neck were of considerable force, and would have interfered with Mr Fitzpatrick's ability to breath. A number of the injuries, notably those to the right side of the face, and the fractures of the thyroid cartilage, strongly suggested that at least some of the injuries had been caused by kicking and stamping. Some of the injuries to the back of the scalp, and to the back of the trunk, strongly suggested that at least some of the injuries to the front of the body had been sustained while Mr Fitzpatrick was lying on his back on the ground.

[6] There can be no doubt, nor was it disputed during the trial, that not only was Mr Fitzpatrick kicked repeatedly and severely as he lay on the ground, but he was stamped upon in the area of his chest and neck."

[4] Both the appellant and the co-accused accepted that they had been present when Mr Fitzpatrick was being attacked but each alleged that it had been the other who had carried out that attack. The appellant denied that he had taken any active part in the attack on the deceased or that he had been present at the "upper scene" in the alleyway. The appellant maintained that the incident began when the co-accused identified the deceased as being gay and began to subject him to an assault. In the course of his statement to the police, and in his evidence at the trial, the appellant maintained that he had tried to stop the attack, that he had checked the victim's pulse and, having obtained a positive result, he then went home. There was evidence of the presence of blood from the deceased upon the jeans worn by both the appellant and the co-accused and Hart J sentenced the appellant upon the basis that, at the very least, he had been involved in kicking the deceased as he lay bleeding on the ground. At paragraph [7] of his sentencing remarks the learned trial judge said:

"[7] . . . It may well be, that as Balseris alleged, Dunauskas was the principal initiator of this attack, nevertheless the presence and distribution of the projected blood on Balsersis' jeans, and the presence of the cigarette butt close to Mr Fitzpatrick's body which had Balseris' DNA upon it, leaves no doubt that Balseris also played a full and active part in the attack. Even if Dunauskas inflicted most of the injuries on Mr Fitzpatrick, that Balseris was smoking at the time of the second attack is chilling evidence of his callous disregard for their victim. I therefore propose not to distinguish between them when assessing their culpability."

The grounds of appeal

[5] At the commencement of the hearing before this court Mr O'Donoghue QC applied for leave to amend the grounds of appeal. Leave was granted and the grounds amended to read as follows:-

(1) The learned trial judge erred in law in granting to the Public Prosecution Service ("PPS") permission to adduce in evidence at trial evidence of the appellant's bad character as important explanatory evidence as defined by Articles 6(1)(c) and Article 7 of the Criminal Justice (Evidence) (Northern Ireland) Order 2004.

(2) Having admitted the evidence of bad character as important explanatory evidence, the learned trial judge erred in law in permitting the jury to consider the evidence for a purpose other than as explanatory evidence.

(3) The learned trial judge ought to have acceded to the application to discharge the jury on the grounds of unfairness to the appellant arising from his cross examination by counsel for the co-accused on the material admitted as important explanatory evidence.

The Appeal

The admission of bad character evidence

[6] On 22 February 2010 Hart J ruled on an application by the PPS to admit evidence of bad character in respect of the appellant upon the ground that such evidence came within the provisions of Article 6(1)(c) and Article 7 of the Criminal Justice (Evidence) (Northern Ireland) Order 2004 ("the 2004 Order") as important explanatory evidence.

[7] The evidence that the PPS sought to admit consisted of statements from three brothers of the deceased, Dominic, Damien and Rory Fitzpatrick and the deceased's cousin, Teresa Sutton. Their evidence related to an incident alleged to have occurred in Donaghy's Bar on the day after the Irish cup final in May 2007. The learned trial judge described the evidence to the jury in the following terms:

"Several of the Fitzpatrick brothers were in the bar and they describe in varying ways what happened. The most comprehensive account is that of Dominic Fitzpatrick. He said that Sean and another man left about 20 minutes after Dominic had come in and roughly 15 minutes after that there occurred what he agreed was quite an ugly incident. That incident was when Sean ran back in and, clearly frightened, tried to hide behind people in the bar. He was followed by the man he had been seen with earlier, that is Sean had been with, who was shouting in a loud voice 'I'm not gay', which he repeated a few times. Dominic Fitzpatrick said the man seemed to be angry and walked towards Sean with his finger pointed. Dominic Fitzpatrick then stood up in front of this man and jabbed the man in the chest with his clenched fist saying 'You'll not touch him, he is my brother'. There was then what we might call a stand-off between the two of them and not just between Dominic and the man because his brothers Damien and Rory joined him and this man had two companions that the stand-off lasted between these two groups of three for a short time but no violence occurred and his brothers took Sean out and put him in a taxi."

Teresa Sutton gave evidence that she and the deceased had been very close and that, on an occasion when he stayed in her house in May 2007, he confided to her that he had been kissing a man in the alleyway outside Donaghy's Bar when the man's friend came up and seemed to have been upset at what he saw whereupon the man whom he had been kissing began to shout "I'm not gay, I'm not gay".

[8] During the course of his ruling the learned trial judge referred to the argument advanced by the prosecution that this evidence was relevant as showing prior contact of an unfriendly nature with the deceased relating to his homosexuality. The defence raised a number of points with regard to the reliability of the evidence but Hart J, in our view correctly, considered that the genuineness and/or reliability of the evidence was a matter for the jury to determine. He appears to have formed the view that the evidence provided an "incentive" for the appellant to take part in the attack upon the deceased and, in concluding his ruling he observed that:-

"Depending on the view the jury form of the witnesses, they could accept that if such an episode happened it was not merely evidence of prior contact between Balseris and the late Mr Fitzpatrick, but may also have provided a motive for Mr Balseris to take part in this attack, as he admits doing, but took a more substantial part in it because of resentment towards the late Mr Fitzpatrick having made a homosexual approach to him. I grant the application."

[9] In relation to this ground Mr O'Donoghue drew the attention of the court to what he submitted were the essential elements of Article 6(1)(c) and Article 7 of the 2004 Order, namely, that the evidence to be admitted should be important explanatory evidence the value of which for understanding the case as a whole was substantial and, without which, the jury would find it impossible or difficult to properly understand other evidence in the case. Mr O'Donoghue criticised Hart J for not specifically directing his attention to these matters during the course of his ruling which, Mr O'Donoghue argued, seemed to be rather based on the possibility that the evidence might provide a motive for the appellant's participation in the murderous attack upon the deceased. Mr O'Donoghue underlined the importance for the learned trial judge to have admitted the evidence through the correct gateway by reminding the court that bad character evidence admitted in accordance with Articles 6(1)(c) and 7 was not subject to the further condition that it should be excluded if it would have such an adverse effect on the fairness of the proceedings that the court should not admit it as would be the case with such evidence admitted under Article 6(1)(d) or (g). He referred us to paragraph 21 of the judgment of the Court of Appeal in England and Wales in R v. Davis [2008] EWCA Crim 1156 in which Rix LJ observed that such considerations do not apply to gateway (c) explaining . . .

"That is because its legitimacy is established by reference to its own rationale and purpose, that is to say the necessity for such evidence, since without it the jury would find it 'impossible or difficult' property to understand other evidence in the case. The additional requirement, that its value for understanding the case as a whole is substantial, is a further hurdle for its admissibility."

Mr O'Donoghue also drew the attention of the court to paragraphs 33 to 36 of the judgment of Rix LJ emphasising that the statutory test for gateway (c) should be applied cautiously where there was a risk that the evidence might overlap with a submitted case of propensity.

[10] Mr O'Donoghue argued that, in the course of deciding whether to admit the bad character evidence, there was nothing to indicate that the learned trial judge had given specific consideration to the definition of "important explanatory evidence" contained in Article 7 of the 2004 Order. He further submitted that, had he done so, the learned trial judge would inevitably have come to the view that the bad character evidence added nothing of significance to the case against the appellant. In support of this submission Mr O'Donoghue set out the evidence constituting the prosecution case against the appellant at paragraphs 9 to 21 of his skeleton argument.

[11] The case made by the appellant before the jury was that he had been drinking in Donaghy's Bar from about 2.00 pm on the Saturday afternoon for about 2 or 3 hours. He went home for something to eat and then returned to the Bar where he met the co-accused. Both the appellant and the co-accused were known to each other and met frequently in the bar. The appellant said that they left the bar together at about 2.15 am and, coincidentally, saw the deceased walking about 10 metres in front of them in the same direction. The appellant said that he had heard in Donaghy's that the deceased was gay a couple of Saturdays before but that he had never previously met the deceased. The appellant denied that he had any homosexual tendencies and maintained that he had no strong feelings about gay people. He told the jury that the co-accused recognised the deceased as a gay man, that he said that he did not like gay men and that they should kick the deceased because he was gay. He said that the co-accused then kicked the deceased in the head from behind. He asked the co-accused what he was doing. He said that he took no part in the assault on the deceased and that he told the co-accused to stop but that he didn't listen. He said that he pushed the co-accused away from the deceased. The appellant denied that there had been any physical contact between himself and the deceased apart from taking the deceased's pulse. The appellant said that he told the co-accused that it was not his problem, he didn't want to kill people and he then left the scene and went home to bed. As noted above, the appellant denied that he had ever been at the "upper scene" in the alleyway and he told the police that he didn't know how the deceased's blood came to be on his jeans.

[12] Thus, the overall impression that the appellant sought to create before the jury was that he himself didn't care whether people were gay, that he had only discovered that the deceased might be gay from conversation in the bar a couple of weeks before the incident, that he and the co-accused encountered the deceased by chance on the way home, that he was taken by surprise by the accused's attitude to and attack upon the deceased, that he tried to stop the attack and that the only contact between him and the deceased had been his action of taking the deceased's pulse. It is important to remember that the co-accused, Dunauskas, maintained throughout that it was the appellant who made the decision to attack the deceased and asked the co-accused to help him and that it was the appellant who carried out the majority of the physical assaults both on the pavement and within the alleyway. The jury also heard evidence that, while on remand in custody awaiting trial, the co-accused had attacked a fellow prisoner and used a high kick in the course of doing so. In addition, there was evidence that the co-accused had grabbed the deceased by the neck of his shirt and drew his hand back as if to strike him in Donaghy's Bar some time between Halloween and Christmas 2007 and that, a few hours before the fatal assault upon Mr Fitzpatrick, the co-accused had tried to assault the deceased in an entry outside Donaghy's Bar.

[13] In our view the learned trial judge was correct in admitting the bad character evidence in accordance with Article 6(1)(c) which, in the context of the case as a whole, was of substantial value in assisting the jury to properly understand the other evidence, in particular, whether the appellant and the co-accused happened upon the deceased by chance as they walked home, the amount and distribution of blood upon the appellant's jeans, whether the appellant had been in the alleyway at the "upper scene" and why, after taking his pulse and ascertaining that the deceased was still alive although clearly in a grave physical condition the appellant simply returned home and went to bed. In a case in which the fundamental issue was whether one or the other or both men had participated in the fatal attack upon the deceased the bad character evidence provided a relevant historical background upon the basis of which it was open to the jury to conclude that the appellant had taken a much more direct and active part than he was prepared to admit.

[14] The learned trial judge had before him the notice served by the PPS seeking the admission of the bad character evidence which referred to the evidence as being explanatory in respect of the background history between the defendant and the deceased and relevant to the motives or intentions of the appellant. It also stated that the evidence had substantial value in respect of the jury understanding the case as a whole and that if the evidence was not admitted, the account placed before the jury would be incomplete. While he did not repeat the specific wording of Articles 6(1)(c) and 7 in the course of his ruling, Hart J clearly had the prosecution notice before him and referred to the evidence as establishing a prior contact of an unfriendly nature which might have provided an incentive or motive for the appellant taking a more substantial part in the attack because of a resentment about the deceased having made an earlier homosexual approach.

Ground 2

Having admitted the evidence of bad character as important explanatory evidence by way of gateway 6(1)(c) and 7 the learned trial judge erred in law in permitting the jury to consider that evidence for a purpose other than as explanatory evidence.

[15] Basing himself upon this ground Mr O'Donoghue criticised the learned trial judge for using the bad character evidence for purposes other than that for which he had admitted it, namely, as evidence of propensity on the part of the appellant to attack the deceased and as evidence capable of correcting a wrong impression.

[16] In support of this submission Mr O'Donoghue referred to a passage from the written directions provided for the jury by the learned trial judge commencing:

"There is another episode where the prosecution allege Balseris behaved aggressively towards Mr Fitzpatrick and the prosecution say that that makes it more likely that Balseris also attacked Mr Fitzpatrick much more violently than he admits. That episode relates to the Sunday night in May 2007 when it is alleged that about 20 minutes after Mr Fitzpatrick and Balseris left the bar together Sean Fitzpatrick ran back into the bar and appeared to be frightened. He was then followed into the bar by Balseris who shouted in an angry voice 'I'm not gay' several times . . . If you are satisfied that it was Balseris that does not prove that he helped to murder Mr Fitzpatrick because you have then to go on to consider, does it assist you in deciding whether Balseris played a more violent part in the attack on Mr Fitzpatrick than he admits and whether he helped to murder Mr Fitzpatrick."

Mr O'Donoghue submitted that this direction was relevant to propensity rather than the explanatory impact of the bad character evidence. However, he also accepted that, at another point in his charge, the learned trial judge had referred to the evidence in a different manner stating, at page 18/19:

"If you are satisfied that he was the man what significance should you attach to this episode? Does it mean that contrary to what he had said Balseris knew, not just knew to see but knew because he had contact with Sean Fitzpatrick before 22 March and not only that but had a reason to attack Sean Fitzpatrick when the opportunity presented itself or felt he had to attack him to prove that he was not gay himself?"

According to Mr O'Donoghue this passage suggested that Hart J was inviting the jury to use the bad character evidence to correct a false impression given by the defendant notwithstanding the fact that the evidence had not been admitted through gateway 6(1)(f).

[17] In delivering his judgment in R v. Davis Rix LJ cautioned against using bad character evidence admitted via gateway 6(1)(c) too readily for purposes such as propensity or correcting a false impression. That warning was referred to by Dyson LJ in the course of delivering judgment in R v. Haigh [2010] EWCA Crim 90. That was a case in which the appellant had been convicted of the murder of her 3 ½ year old son and the defence had sought to establish that the appellant was a good mother who had enjoyed a loving and caring relationship with the child particularly in the last 3 weeks of his life. The prosecution applied to the trial judge to adduce contradictory evidence indicating that, during a visit to Gosport, just a little over a month before his death, the appellant had neglected her son and displayed poor parenting skills. The Court of Appeal was satisfied that the Gosport evidence was admissible as "bad character" evidence in accordance with the equivalent legislation in England and Wales, Section 101(1)(c) of the Criminal Justice Act 2003 ("the 2003 Act"), and, after referring to the Davis warning Dyson LJ said at paragraph 25:

"25. We take heed of that warning, but are nevertheless satisfied that this evidence was properly admitted under Section 101(1)(c). The appellant's parenting skills and her relationship with Billy were an important part of the background of this case. The picture that the defence sought to portray was that the appellant was a good mother who loved her son and, by the time of the death, had acquired good parenting skills. But the Gosport evidence, if true, showed that this was an incomplete picture in view of the appellant's behaviour only some six weeks before Billy's death."

[18] We bear in mind that the relevant bad character evidence in Davis, which was ultimately not admitted, had occurred some 20 years prior to the murder during a different relationship. In this case there was no suggestion that the appellant had a well-developed propensity to attack gay individuals. The evidence relating to the recent history and nature of the appellant's relationship with the deceased arose from a single incident which was clearly a factor of vital importance in the case and, in our view, the learned trial judge was correct in taking the view that, without the bad character evidence, the picture would have been incomplete.

Ground 3

The learned trial judge ought to have acceded to the appellant's application to discharge the jury on the ground of unfairness to the appellant arising from his cross examination by counsel for the co-accused on material only admitted as important explanatory evidence.

[19] In support of this ground Mr O'Donoghue drew the attention of the court to a number of passages in the transcript of the appellant's cross examination in the course of which, inter alia, it had been put to the appellant that he had taken part in gay encounters with the deceased. As a consequence of the cross examination by the co-accused counsel then acting on behalf of the appellant had applied to the learned trial judge to discharge the jury. He complained that the cross examination of the appellant had implied that the appellant and the deceased had been involved in a sexual relationship, that news of that relationship had been travelling around Dungannon and that the appellant wished to put a stop to such stories. Counsel submitted that any such implication was completely without any evidential foundation.

[20] Once the evidence of the previous encounter between the appellant and Balseris in Donaghy's Bar had been admitted in evidence, given that the appellant and the co-accused were running "cut throat" defences, it was inevitable that the appellant would be cross examined by the co-accused about that evidence and its relevance. Consideration of the transcript confirms that the application on behalf of the appellant to the learned trial judge to discharge the jury was grounded upon cross examination suggesting that the appellant wanted to put a stop to the deceased telling persons in Dungannon that he, the appellant, had gay tendencies. Counsel on behalf of the appellant argued that there was nothing to support such a suggestion, whether in the bad character or any other evidence, which was highly prejudicial and went beyond the proper bounds of cross examination. When ruling on the application Hart J confirmed that:

"It is correct that there is no evidence to suggest that this (the alleged gay encounter) had become known all over Dungannon, but I regard that as not amounting to a sufficient reason to discharge the jury. The remaining assertions are perfectly justified as part of Dunauskas' case. The application is refused."

The learned trial judge reminded counsel then acting on behalf of the appellant that he was entitled to make whatever comment he wished when dealing with the matter before the jury.

[21] Counsel then acting on behalf of the appellant referred to the matter again in the course of requisitions to the learned trial judge in the following terms:

"My Lord, might I raise this matter and your Lordship I note didn't correct the impression that Mr McDonald gave and cause an application or part of an application, my Lord, that it was all over Dungannon, suggesting it was all over Dungannon that this man was gay. Now, I'm – your Lordship didn't do that, I am presuming your Lordship didn't do it for proper reasons of his own. But I flag it up just in case it had escaped your Lordship in the myriad of detail that your Lordship had to deal with."

The learned trial judge responded to this requisition by observing that he thought that "the least said about that the better" and that to draw the attention of the jury to it again would be undesirable. That appears to have been accepted by counsel. In the circumstances, we do not consider that there is any substance to this ground of appeal.

The safety of the conviction

[22] In his skeleton argument Mr O'Donoghue conceded that, even without the admission of the bad character evidence, there was a strong case against the appellant but argued that it was not inevitable that he would be convicted in the event of a retrial. For the reasons set out above we consider that the learned trial judge was correct in his ruling that the bad character evidence relating to the appellant was admissible and, having done so, taken together with the forensic and other evidence, in our view, the case against the appellant became compelling. In the circumstances, we do not consider that the conviction was in any respect unsafe and, accordingly, this appeal will be dismissed.