R v Dolan (Edward George)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TUCKEY |
| Judgment Date | 28 June 2002 |
| Neutral Citation | [2002] EWCA Crim 1859 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200102674/Y5 |
| Date | 28 June 2002 |
[2002] EWCA Crim 1859
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Lord Justice Tuckey
Mr Justice Curtis and
Mr Justice Roderick Evans
No: 200102674/Y5
MR A DONNE QC appeared on behalf of the Appellant
MISS W R JOSEPH QC appeared on behalf of the Crown
th June 2002
On 26th April 2001 in the Canterbury Crown Court before His Honour Judge Rooke QC and a jury, the appellant, Edward George Dolan, was convicted of murder.
He appeals against conviction by leave of the single judge. The ground upon which leave was given relates to the admission of certain evidence which, it is contended, should not have been admitted since it only went to propensity. We have also considered a further ground which contends that the good character direction given by the judge was flawed.
The appellant was alleged to have murdered his three and a half month old son. He and the child's mother started a relationship in 1997, after which they set up home in Canterbury and became engaged in early 1999. At that time the mother unexpectedly found herself pregnant. The child was born on 19th November 1999. He appeared to be well looked after and was thriving, and to all outside appearances both parents were loving and caring.
At about 11.30 p.m. on Wednesday 29th March 2000 a 999 call was made from the mother's mobile telephone asking for an ambulance. When the paramedics arrived at the home, they found the child blue and cold. Attempts to resuscitate him at home and at hospital failed. A post-mortem revealed that death had been due to a fracture of the cervical spine caused by forceful shaking. Various other injuries were also found, including a depressed fracture of the skull and some older injuries to the ribs. Death was likely to have occurred half an hour to two hours before the ambulance arrived.
It was clear that the child must have been killed by one or other or both of the parents. Initially both parents were arrested. In interview with the police the appellant denied that he had killed the child.
The mother's evidence at trial was that on the morning in question she stayed in bed and that the appellant had gone to get the child up at about 8.30 a.m. After getting him out of bed, he popped the child round the corner before taking him downstairs to feed him. The mother dosed off and the next thing she knew the appellant came into the bedroom holding the child dressed in day clothes and shouting that he was not breathing.
The appellant's account, which he was to give to the jury, was that he took the child downstairs, fed him, then changed and bathed him before putting him back to bed at 9.30. He then went to watch a video. Later when he went upstairs to go to the lavatory he found the child face down and not breathing. He rushed in, picked him up and took him to the mother.
The mother's evidence was that at the hospital the appellant had said, "If I'd gone to work this would never happen", but at the same time he also said that he had not done anything to the child. In the course of her evidence at the trial she agreed that the appellant had never hit her and that she had had no reason to think that he would do so to their child.
The Crown, however, wanted to lead evidence to show that the appellant had a quick temper. This was to come from the mother and an ex-girlfriend. There was considerable argument before the judge in the absence of the jury about the admissibility of such evidence. The transcript shows that the judge was initially very doubtful about its admissibility. But after being referred to a number of authorities by Miss Joseph QC for the Crown, then as now, he was persuaded to admit it. In his ruling he said that the matter was by no means easy. If the evidence had only gone to propensity he would have refused to admit, but as it was implicit in the defence that the mother must have killed the child the jury were entitled to hear the evidence as part of the background. He said:
"It seems to me … exceptionally that the evidence … is properly admissible on the basis that it forms part of the background without which understanding of the particular picture here would be incomprehensible to the jury."
The Crown then called the evidence to which we have referred. In short the mother said that when they had first moved to Canterbury in October 1997 the appellant had lost his temper with the fire as it would not light and smashed it up either with a hammer or by kicking it. On another occasion he had lost his temper during her pregnancy when the shower would not work. He smashed the bath up with the shower head, cracking the bath. During the same period he had thrown a remote control at the television. She talked of an earlier occasion, just after they had met in the beginning of 1997, when he hit the wing of his car with a hammer when something went wrong as a result of which it needed a new wing. There was a further occasion after the child was born when he had thrown the remote control at the digital box when the remote control would not work.
The former girlfriend, speaking then of a time pre-1997, described an incident in which his car had broken down and he slammed the driver's door so hard that the window smashed and another occasion when he smashed the headlight of the car by kicking it. He had also thrown a glass against a wall once. But again her evidence was that he had not shown any violence towards her.
The appellant denied that he had a short temper and claimed that the mother had exaggerated the incidents which she described.
In the summing-up there are signs that the judge again had doubts about the admissibility of this evidence. He said:
"… you will also avoid any facile leaping to conclusions about violence to a tiny child, which is what is alleged here, from the disputed episodes, whatever you make of them, about earlier alleged spurts of temper in relation to inanimate objects … That is pure background … so that you get the whole picture and should never be used as a springboard, as it were, for jumping into easy and adverse conclusions."
A little later he said:
"You may feel you are not going to be greatly helped in any event whatever you find here, even if you find his denials to be false. I don't propose to remind you of them in detail lest in any event they assume more importance than perhaps they should do."
Put shortly Mr Donne QC, who now appears for the appellant, says that this evidence should never have been admitted. It demonstrated, at the very highest, the appellant's violence to inanimate objects when in temper at times which were not proximate to the killing with which this case was concerned. As such it was not probative but was obviously prejudicial. This could not be remedied by the summing-up and resulted in the appellant not receiving the full good character direction. What the judge said when giving this direction was:
"In this case also you know that … he is a young man who has attained his middle 20s without the blemish of any previous criminal conviction, accusation or reproach. That plainly goes to his entitlement to be treated as a potentially credible witness like anyone else, someone who is, on the face of things, worthy of belief unless and until the contrary be conclusively proved against him, and somebody who has shown, certainly in no major respect, any inclination, propensity or call it what you will, to involve himself in crime, let alone violent crime."
Miss Joseph supports the admission of the evidence. She relies, as she did before the judge, on what she calls the Pettman principle which applies:
"… where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged and without which the account placed before the jury would be incomplete and incomprehensible."
This statement comes from the judgment of Purchas LJ in the unreported case of Pettman decided in this court on 2nd May 1985. It has been considered, developed, applied and commented upon in a number of cases to which we have been referred.
The first of these is Stevens [1995] Crim LR 649, where Stevens was charged with the murder of the woman with whom he had been living. He was alleged to have punched her in a fit of jealousy but he claimed that she had first attacked him and that he did not intend to kill or cause her serious injury. The Crown were allowed to adduce evidence of two incidents shortly before her death when the appellant had been violent to her on the basis that it went to motive and to background. This court upheld the judge's decision to admit the evidence. Commenting on the case in the Criminal Law Report, Professor Birch said:
"Background evidence, on the other hand, has a far less dramatic but no less important claim to be received. It is admitted in order to put the jury in the general picture about the characters involved in the action and the run-up to the alleged offence. It may or...
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