R v Dhaliwal
| Jurisdiction | England & Wales |
| Judgment Date | 16 May 2006 |
| Neutral Citation | [2006] EWCA Crim 1139 |
| Docket Number | Case No: 2006/1170/B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 May 2006 |
[2006] EWCA Crim 1139
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Central Criminal Court
His Honour Judge Roberts QC
Before: The President of the Queens Bench Division
The President of the Queens Bench Division
The President of the Queens Bench Division
Mr Justice Henriques and
Mr Justice Fulford
Case No: 2006/1170/B5
Miss S. Howes QC, Mr M.J. Gadsden and Miss S Giddens for the Crown Mr S. Batten QC and Mr M Butler for D
PRESIDENT OF THE QUEEN'S BENCH DIVISION:
On the evening of 22 February 2005, D's wife committed suicide by hanging herself in an outhouse at the back of the matrimonial home. D was indicted with manslaughter of his wife, and inflicting grievous bodily harm on her. On 7 March 2006, at the Central Criminal Court, His Honour Judge Roberts QC ruled that the case should not proceed to trial. There was no basis on which a reasonable jury, properly directed in law, could convict D of either offence. This is an application by the prosecution under section 58 of the Criminal Justice Act 2003 for leave to appeal this terminating ruling.
The relevant facts are fully summarised in the meticulous judgment of Judge Roberts. We shall gratefully adopt his analysis.
After Mrs Ds death, evidence emerged which suggested that over a period of years she was subjected to various forms of abuse (mainly psychological, but including occasional physical assaults) by her husband.
The sources from which that evidence came were:
i) A diary kept by Mrs D during the last five months of her life. (This diary recorded two incidents of physical assault during this period, one involving her husband spitting at her, and the other, slapping her face.)
ii) Statements made by several of her close relatives.
iii) A statement made by Mrs D herself in March 1999, in proceedings which she had instituted against her husband in the Brentford County Court, seeking a non-molestation order, and an occupation order (the parties were subsequently recognised).
iv) Police records relating to incidents in April 1998, March 1999, August 1999, May 2002 and May 2003, in some of which Mrs D made allegations against her husband of assault or threatening behaviour (but declined to make formal complaints).
v) Medical records relating to alleged assaults in July 1994, April 1998 and March 1999.
It also transpired that, in August 2004, Mrs D was admitted to hospital, after consuming a large quantity of alcohol, and trying to slit her wrists. She cited "family problems" as the reason for what had happened.
On the evening on which she committed suicide there was an argument between Mr and Mrs D, in the course of which, as he admitted later, he struck her on the forehead. The bangle he was wearing at the time cut her skin at the point where his blow landed. It seems likely that this assault operated as the immediate trigger which precipitated her suicide. Psychiatric evidence suggested that the "overwhelming primary cause" for the suicide "was the experience of being physically abused by her husband in the context of experiencing many such episodes over a very prolonged period of time".
In the context of this assault, Judge Roberts suggested that, where "a decision to commit suicide has been triggered by a physical assault which represents the culmination of a course of abusive conduct," it would be possible for the Crown "to argue that that final assault played a significant part in causing the victim's death". That, however, was an argument which the prosecution expressly "disavowed" before him. He went on, "they preferred the section 20 route, I suspect because they felt it presented less difficulty when it came to the question of causation. But I do not see any reason in principle why the final assault which triggered the suicide should be looked at in isolation. If a defendant by his previous conduct has reduced the victim to a psychological state in which the 'last straw which broke the camel's back' is liable to tip her (or him) over the edge, I would have thought there was some force in the argument that the 'last straw' played a significant part in causing the death."
The Crown maintained the same position before us. We were not invited to consider the correctness, or otherwise, of the views expressed on this subject by Judge Roberts. We should however record that, subject to evidence and argument on the critical issue of causation, unlawful violence on an individual with a fragile and vulnerable personality, which is proved to be a material cause of death (even if the result of suicide) would at least arguably, be capable of amounting to manslaughter.
We shall return to the narrative. The history revealed by police investigations, and in particular whether a causal connection could be established between Mr D's alleged behaviour to his wife and her suicide, was carefully considered.
In the result, the prosecution obtained the evidence from three experts. They first consulted Dr Roxanne Agnew-Davies, a clinical psychologist, with particular expertise in the field of the psychological effects on women of "domestic violence" by their partners. This expression covers not only direct physical assault, but includes various forms of psychological abuse, including intimidation, emotional abuse, verbal bullying and belittling, and using the victim's isolation, her children, coercion and threats, and similar and related unpleasant conduct. Dr Agnew-Davies was asked to consider whether or not the deceased "had sustained a psychological injury as a result of the way she was treated in her marriage, and what level of assault…she suffered". Dr Agnew-Davies herself appreciated that she should consider also whether the physical and/or psychological abuse which Mrs D had suffered contributed significantly to her suicide.
We have read the witness statement of Dr Agnew-Davies. She considered such evidence as there was of physical abuse, sexual abuse (there was none) and psychological abuse. On the basis of the diary entries, Dr Agnew-Davies concluded that Mrs D experienced "domestic violence" perpetrated by her husband, and lived in fear of direct physical violence.
She concluded that at the time of her death the deceased was "experiencing psychological symptoms consequent on her protracted experience of domestic violence". Nevertheless, she was unable to make a "psychiatric diagnosis". She recognised that conduct of the kind attributed to Mr D could produce "depression, anxiety, panic attacks, post-traumatic stress disorder, self-harm and attempted suicide". She identified two possible psychiatric conditions, depression and post-traumatic stress disorder. However, notwithstanding that "some features of depression" were recorded in the diary, she did not believe that Mrs D was suffering from clinical depression. Again, although there were indications in the diary which would have been consistent with the diagnosis of post-traumatic stress disorder, she did not believe that there was "sufficient evidence…to prove that the post-traumatic symptoms of the deceased meet clinical status". She therefore concluded that the deceased had sustained "psychological injury", characterised by features of depression and post-traumatic stress disorder.
After D was charged, the Crown sought further expert assistance from Dr Gillian Mezey and Dr L.P.Chesterman, distinguished consultant psychiatrists. Again, we have read their full reports. They were provided with rather greater material than Dr Agnew-Davies, but, like her, they were attempting to form an opinion about Mrs D's condition when, inevitably, they had not been able to speak with or interview her.
Dr Mezey concluded that there was "sufficient evidence" to support a diagnosis of depressive disorder, and psychiatric illness. For present purposes, that unequivocal conclusion needs no elaboration.
By contrast, Dr Chesterman was unable to make a diagnosis of any "identifiable psychiatric illness". He did, however, believe that Mrs D's experiences at the hands of her husband would have impacted on her "psychological functioning". The "psychological impact of the assault perpetrated by her husband on the day of her suicide is likely to have been greatly magnified by the number of such experiences over many years". We have already referred to a different passage in this report in paragraph 7.
On the basis of these reports, the Crown conceded, and the case proceeded before Judge Roberts, and us, on the basis that no reasonable jury could be satisfied, to the criminal standard, that Mrs D suffered from any recognised psychiatric illness. The Crown's position was that the diagnosis made by Dr Mezey was contradicted by the views of Dr Chesterman and Dr Agnew-Davies, and the jury could not be satisfied that she was right, and that they were wrong. So, without abandoning Dr Mezey, the Crown feel obliged to rely on the reports of Dr Chesterman and Dr Agnew-Davies.
Judge Roberts recorded that the Crown's case therefore depended on the submission that "psychological injury, without any recognised psychiatric illness, is capable of being 'bodily harm'" within sections 18, 20 and 47 of the Offences Against the Person Act 1861.
Having analysed the authorities, Judge Roberts concluded that there was no evidence on which a "reasonable jury could be satisfied that Mr D inflicted grievous bodily harm on his wife". In reaching his conclusion he drew a distinction, or derived from the authorities a distinction, between psychological and psychiatric harm. The issue before us, as summarised by Miss Howes,...
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