R v Dawson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS,LORD JUSTICE WATKTNS |
| Judgment Date | 14 March 1985 |
| Neutral Citation | [1985] EWCA Crim J0314-3 |
| Judgment citation (vLex) | [1985] EWCA Crim J0314-4 |
| Docket Number | No. 3943/B/63 No. 4471/A/83,No. 3943/B/83 No. 4471/A/83 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 March 1985 |
[1985] EWCA Crim J0314-3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Watkins
Mr. Justice Wood
and
Sir John Thompson
No. 3943/B/63
No. 4122/A/83
No. 4471/A/83
MR. F. J. MULLER Q.C. and MISS H. PALING appeared on behalf of the Appellants Dawson and Nolan.
MR. F. J. MULLER Q.C. and MR. J. EVANS appeared on behalf of the Appellant Walmsley.
MR. J. CHADWIN Q.C. and MR. R. THORN appeared on behalf of the Crown.
On 20th June 1983 in the Crown Court at Newcastle-upon-Tyne the appellants pleaded guilty to robbery and attempted robbery. On 27th June 1983 they were convicted of manslaughter. The appellants Nolan and Dawson each pleaded guilty to a further offence on a separate indictment. All three appellants were thereafter sentenced as follows: Dawson for robbery 6 years, attempted robbery 7 years and manslaughter 9 years' imprisonment to run concurrently, for an assault occasioning actual bodily harm 6 months' imprisonment to run consecutively and for a breach of a conditional discharge in respect of another offence of assault occasioning actual bodily harm one month's imprisonment to run concurrently, a total of 9(1/2) years' imprisonment, an offence of theft being taken into consideration. Nolan for robbery 6 years, attempted robbery 7 years and manslaughter 9 years' imprisonment to run con-currently, for taking a conveyance without authority 3 months' imprisonment to run concurrently. Walmsley for robbery 5 years, attempted robbery 6 years and manslaughter 7(1/2) years' imprisonment to run concurrently.
Each of them appeals against conviction for manslaughter and his sentences by leave of the single judge.
The facts concerning the attempted robbery and manslaughter were that a Mr. Robert Black, then 60 years of age, worked on night duty as a petrol attendant at a filling station in Wardley, Tyne and Wear. Since about June 1981 he had suffered from severe ischaemic heart disease. In the middle of that year and in October 1981 he had heart attacks. He continued to suffer from angina pectoris. This was relieved by sucking a tablet of nitro-glycerine which he did at least once every day.
On Monday, 8th February 1982, he arrived at the filling station at about 10.45 p.m. He seemed to the man he relieved, Mr. Rutherford, and to Mrs. Rutherford who came to collect her husband shortly before 11 p.m., quite normal. During the next four to five minutes or so a number of people who saw Mr. Black noticed nothing about his condition to cause them concern.
At about midnight Mr. Shepherd, a taxi proprietor, and one of his employees, Miss Burke, called at the filling station for a can of petrol which was required for a stranded taxi. Mr. Shepherd collected and paid for the petrol he required and got back into his taxi when Miss Burke commented on Mr. Black's appearance. Mr. Shepherd then realised that Mr. Black seemed to look a bit anxious and grey.
Mr. Black sat within a kiosk behind a protective glass screen. At one minute past midnight he pressed an alarm button. This had a delayed effect. Accordingly, just under 5 minutes later an alarm bell started to ring. It was then very nearly six minutes past midnight. Neither Mr. Shepherd nor Miss Burke heard that sound.
Mr. Mainland and Mr. Spoor arrived at the filling station in search of both food and petrol. Just as they got there the alarm bell started to ring. Both of them noticed that Mr. Black seemed to have a small pill in his mouth and was holding his chest. He was very pale. His face was almost white and he was breathing heavily. At 12.15 he telephoned the owner of the filling station. Soon afterwards two police constables arrived. They had a short conversation with Mr. Black, who suddenly collapsed and fell to the floor unconscious. He was driven immediately to hospital but was found to be dead on arrival there.
On 11th January 1983 Walmsley approached a police officer in Durham. He said he had a confession to make about an armed robbery and another offence which he wanted to get off his chest. He was interviewed on 15th January. Later in the same day Dawson and Nolan were also interviewed. They all said that they had attempted to rob Mr. Black a short while before, as they afterwards learnt, he died. They had gone to the filling station in a car driven by Nolan. Walmsley, wearing a balaclava covering his face, carried a pick axe handle. Dawson, who had a replica gun, wore a woman's stocking over his face. Nolan stayed in the background as Walmsley banged on the counter with his pick axe handle and demanded money. Dawson stood alongside him and pointed his gun at Mr. Black. They then saw that Mr. Black was pressing a button and they fled.
At the trial, conducted by Glidewell J., medical evidence informed the jury that after each of the two heart attacks in 1981 Mr. Black was seen by Dr. Hasan, a consultant physician. On each occasion he spent about a week in hospital but continued to be treated as an out-patient periodically. On the very day of the attempted robbery he had seen Dr. Hasan who found his heart condition to be stable and satisfactory. But he was, said Dr. Hasan, destined to die of heart disease and he was liable to die from that cause at any time. Dr. Hasan expressed the opinion that if a person in Mr. Black's condition was subjected to sudden stress or shock or fright it was highly probable that angina would be triggered off, the heart would stop and death would soon follow.
A Home Office pathologist carried out a post mortem examination on 9th February 1982. He found the cause of death to be ischaemic heart disease. He said that in his opinion what most probably occurred was that the shock of the attempted robbery triggered off angina and a fatal heart attack.
Both doctors said it was possible that independently of the attempted robbery Mr. Black could have suffered a major heart attack which caused his death. If, they said, that had happened shortly Before midnight it would have been revealed at post mortem examination. They both said it was their belief that the attempted robbery was responsible for a heart attack and the death of Mr. Black, but they could not rule out the possibility of a heart attack having occurred before the attempted robbery; this was a possibility.
The perfected grounds of appeal against the convictions of all appellants are that the judge, wrongly in law: (1) failed to withdraw the offence of manslaughter from the jury seeing that the medical evidence amounted to it being no more than a high probability or that it was most probable that the attempted robbery started the heart attack which caused death; (2) directed the jury that putting a person in such terror that he may suffer such emotional or physical disturbance as would be detrimental could for the relevant purpose constitute harm. It is argued that it is not open to a jury to convict if they find merely that an emotional disturbance that was detrimental was suffered by a deceased; (3) directed the jury upon the burden of proof with regard to the expert medical evidence as to the cause of death. Both medical witnesses said they could not be sure that the robbery started the heart attack. They said it was no more than highly probable that it did; (4) failed to direct the jury that the opinion it was highly probable that death was so caused was based on the assumption that the deceased's condition was stable minutes before the attempted robbery; (5) failed to direct the jury that if the heart attack had or may have started before the attempted robbery there was no or no sufficient evidence that the attempted robbery substantially caused death; (6) directed the jury that the sane and reasonable people referred to in the test for the creation of the risk of some harm to the person must connote people who know all the facts, including, it is to be inferred, that the deceased suffered from chronic heart disease. There was no evidence that the appellants were aware of that condition. Whilst Walmsley did not include this in his perfected grounds, we shall assume that he seeks to rely on it nevertheless.
At the conclusion of his summing-up the judge said: "Members of the jury, it is a difficult task you have". No one could possibly gainsay that and no one should be surprised that at the close of the prosecution's case the judge was invited by all counsel for the appellants — upon the basis of R. v. Galbraith—to withdraw the case from the jury and to direct them to return verdicts of not guilty. In declining to do so he said that there was, in his opinion, evidence upon which a jury, properly directed, could properly convict, and in reaching that decision he had based himself in part upon what was said by Ormrod L.J. in giving the judgment of this court in R. v. Bracewell (1979) 68 Cr.App.R. 44 at 49:
" 'You must remember this, that a doctor, and you may have thought that Dr. Green was a splendid example of fairness, is speaking from a scientific point of view. He was saying, "I cannot as a scientific certainty rule out that which you postulate, namely partial asphyxia, recovery and then a heart attack," but, he said, "I incline strongly against that view." You will remember ladies and gentlemen that your duty is not to judge scientifically or with scientific certainty. You judge so that as sensible people you feel sure and even say that what might not satisfy Br. Green as a scientific certainty, might, with propriety, satisfy you so that you felt sure. Do not be misled. There is no such thing as certainty in this life, absolute certainty. You ask yourselves the simple...
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