R v Boreman
| Jurisdiction | England & Wales |
| Judge | Lord Justice Otton |
| Judgment Date | 01 December 1999 |
| Neutral Citation | [1999] EWCA Crim J1201-2 |
| Judgment citation (vLex) | [1999] EWCA Crim J1201-5 |
| Docket Number | Case No: 98/6519/Z3, 98/6520, 98/6522 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 December 1999 |
[1999] EWCA Crim J1201-2
Lord Justice Otton
Mrs Justice Smith and
Mr Justice Collins
Case No: 98/6519/Z3, 98/6520, 98/6522
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Mr Andrew Patience QC (instructed by Master of Court of Appeal, Criminal Division for Boreman, Byrne and Byrne)
Mr Peter William Clarke QC (instructed by CPS Greenwich/Bexley, Solicitors for the Prosecution)
Wednesday, 1 December 1999
In April 1997 the appellants were convicted of murder following a trial by HHJ Capstick QC at the Central Criminal Court. In March 1998, the Court of Appeal Criminal Division quashed the convictions and ordered a re-trial. On 29 September 1998, at the Central Criminal Court before HHJ Machin QC, following a 16 day re-trial, the appellants were again convicted of murder. Further counts of wounding with intent and unlawful wounding were ordered to remain on the file.
They now appeal against conviction by leave of the single Judge.
The deceased, John Reid, occupied a flat above the flat occupied by the appellants Boreman and Michael Bryne in Plumstead. On the evening of 4 April 1996 there was a fight between Boreman and the deceased which resulted in both sustaining some injury. The appellants Michael Byrne and Malcolm Byrne (no relation) were both in the house later that night. At approximately 4.00am the three appellants were in the deceased's flat when an ugly incident took place during which the deceased received substantial injuries from being kicked and hit by pieces of wood. At 5.00am the Fire Brigade were alerted and arrived to find the deceased at his flat badly burnt.
The prosecution case was that the appellants had intended to kill or seriously injure the deceased before the fire and that the injuries he then received were an operative and substantial cause of death. They also sought to show that the appellants had set the fire deliberately in any event. The defence case, in general terms, was that the injuries sustained before the fire were not life threatening and the fire itself, which the defence submitted was the sole cause of death, was accidental. Michael and Malcolm Byrne argued that if there was a joint enterprise in the deceased's flat, they withdrew before the serious injuries were inflicted and lacked any intent to cause serious harm.
One of the main issues for the jury to determine was the cause of death and it is this aspect which is the main focus of this appeal. Dr Heath gave evidence for the Crown. He conducted the first post-mortem on 5 April and found the cause of death to be multiple injuries. Inhalation of fire fumes contributed to the death. He found the nostrils were blocked with blood and there was a large quantity of blood in the mouth. He also found a large quantity of blood in the air passages down into the bronchi and in the stomach, indicating that the deceased had swallowed blood. He described various physical injuries which will be considered later. He found a high blood alcohol level; he could find no carbon products in the air passages and no fire products in the blood or contents of the stomach. There was evidence of emphysema in the lungs. He drew the conclusion from his observations that the deceased was effectively "drowning in his own blood". He was satisfied that the deceased was alive when the fire started and that there was a strong indication that he was unconscious. The quantity of blood in the air passages indicated that the body would have been getting towards a terminal stage. He might if conscious, have been able to move, but his ability to escape from the fire would have been inhibited. In cross-examination he accepted that the actual cause of death was the inhalation of the fumes in the sense that although he was in the process of dying, that process was accelerated by the fire. Thus he modified his opinion and agreed that "what killed him was the multiple injuries and carbon monoxide and cyanide". He estimated that the deceased would have survived less than an hour without the fire.
Dr Djurovic conducted a second post-mortem and gave evidence for the defence. In her opinion, the injuries were not a substantial and operative cause of death, nor were they life threatening. The deceased had inhaled smoke and toxic gases deep into the lung. She concluded that the victim's breathing difficulties would have accelerated death but did not cause it. She could not accept that there had been a significant quantity of blood in the trachea, airways and main bronchi evident at the initial examination. Thus there was "no evidence to show the inhalation of blood was an operative cause of death."
Dr Hill gave evidence for the defence and said in his view there was no other cause of death than inhalation of toxic fumes. He too did not think that the injuries were life threatening nor did he think that the process of dying had begun before the fire started. He examined the lungs microscopically and found smoke particles in the smaller airways but no signs of blood. He described the injuries as "minor to moderate". The victim would have been in considerable pain but his chest was not flailed and there was no evidence of a partially collapsed lung. If he was conscious when the fire began he was capable of moving and could have got to his feet.
There was also evidence from fire experts. Mr Wade, for the Crown, examined the premises on the date of the fatality. The seat of the fire was, he found, at the right hand side of the sofa. In his opinion the cause of the fire was either a naked flame or a discarded lit cigarette. There was no evidence that an accelerant had been used. Screwed up newspaper was a possibility but there was no evidence of a bonfire of paper. He eliminated an electrical cause for the fire resulting from a fan heater which was found close to the body. Mr Bland gave evidence for the defence. He visited the premises on the 15 April and concluded that there had been a hot fierce fire of short duration. He estimated 20 to 40 minutes before it was extinguished. He agreed with Mr Wade as to the seat of the fire and that the cause could have been a naked flame or a discarded cigarette. Within three minutes of flame the room would have been uninhabitable. He could not exclude the possibility that the fan heater had been connected and switched on and that it was possible that the heater could have been too close to the sofa and over heated.
It is not necessary to recite any of the remaining prosecution evidence at this stage.
Victor Boreman gave evidence that he had lived at the address since 1994 and Michael Byrne had joined him a year later. He got on quite well with the deceased. That evening he and Byrne drank vodka and cider at the house before going out. He returned at about 10.30 pm when he was attacked by Reid and two other black men. The two other men left, Boreman threw the deceased out of the house and saw him stagger to the end of the path. At about midnight Michael Byrne arrived where he joined up with the other two appellants. The three of them went up stairs to Reid's flat. Boreman and Michael Byrne took pieces of wood. Reid lunged at Boreman and grabbed him by the throat. Boreman punched him on the nose, he fell and began to kick out with his legs. He denied using the piece of wood and retracted his statement at interview that he saw the others kicking the deceased.
At 4.00am he heard music from upstairs and went up with Michael and a girlfriend. The deceased looked in a bad way, was obviously drunk and abusive. He later tried to get up the stairs but was prevented from doing so by the smoke. He never intended to cause Reid really serious harm: "things just went too far".
Michael Byrne described how he arrived at the house in the later evening to find Boreman shaking and frightened. He had marks on his face and told Byrne about the attack by the deceased and the other two men, one of whom had a knife. Byrne asserted that the blood found on his jumper must have come from Boreman. He fell asleep and when he awoke he found Boreman and Malcolm Byrne in the living room. They were talking and at some stage all three went upstairs. Michael Byrne also took a piece of wood. Michael went to the kitchen and then joined the others in the lounge where the deceased was with the other two appellants. Reid was lying on the floor and kicking out. Boreman was kicking him and Michael kicked him on the hip. He also hit him with the stick on the leg. He and Malcolm said that the victim had had enough and they should leave. The deceased was still conscious and told him to "fuck off". Later they heard music from upstairs which became louder. Michael Boreman and Sharon went up and Michael turned off the stereo. Reid said he was cold and so he covered him and plugged in the fan heater. Later he noticed smoke whereupon he with Boreman tried to get up to the deceased but they could not get in because of the flames.
Malcolm Byrne described how at about midnight when he was at his house he saw Boreman who had clearly been attacked. Malcolm Byrne walked him home at about 1.30am. He noticed broken glass and blood in the hall. The three men decided to find out why the deceased had attacked Boreman and they went upstairs together. When he got to the front room Boreman was fighting with the deceased. The other two men tried to get the deceased off Boreman. Boreman punched him in the face. Malcolm picked up a piece of wood, kicked the deceased twice on the trunk and hit his feet with the wood twice. They then went downstairs. They later felt...
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