R v Fulcher
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY |
| Judgment Date | 08 December 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J1208-19 |
| Docket Number | No. 92/4434/X4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 December 1994 |
[1994] EWCA Crim J1208-19
Before: Lord Justice Kennedy Mr Justice Kay and Mr Justice Keene
No. 92/4434/X4
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR A JONES QC and MR E FITZGERALD appeared on behalf of THE APPELLANT
MR KALISHER QC and MR S KRAMER appeared on behalf of THE CROWN
Thursday 8 December 1994
On 30 June 1992, in the Central Criminal Court, this appellant was convicted of murder and sentenced to life imprisonment. He has appealed against conviction by leave of the single judge. At the conclusion of the hearing on 2 December we allowed the appeal, and we now give our reasons for that decision.
The appellant is now 27 years of age. In February 1990 he began to live with a young woman named Wendy, and on 1 June 1990 they were married. On 1 August 1990 they moved to live at 19, Princes Terrace, Brighton. By then neither of them was in employment so they were reliant on State Benefits for their support. On 6 November 1990 their son David was born. The child was delivered in hospital, and mother and baby were discharged home three days later. Wendy was then 19 years of age. She went back to the bed-sitting room at 19 Princes Terrace, and there she was visited regularly by midwives for the next fortnight. Then, on 19 November 1990, Wendy's mother told her that her husband had left her, and so the appellant, Wendy and the small baby went for a time to live with her mother at Reigate. Between mid November and Christmas the child was seen by a doctor on two occasions, first on 6 December, and secondly on 17 December. Nothing of any consequence was observed on either occasion.
So we come to Boxing Day 1990. There were four people who slept the previous night at the home of Wendy's mother, Mrs Fitzgerald, at Reigate. They were Mrs Fitzgerald herself, the appellant, Wendy and the child. In her evidence at the trial Wendy claimed that at about 8.00 am the baby cried, so she fed the child, and took him downstairs to the dining room. She then went back upstairs herself to sleep. Mrs Fitzgerald gave evidence that at 8.50 am she left the house, having spoken to the appellant, but not having seen the baby, and she did not return until after the baby had been taken to hospital. In answer to questions asked of him by police officers the appellant said that at 9.15 am he heard the baby cry and went into the dining room. He settled the child, and did not interfere with him thereafter. Wendy said, when giving evidence, that at about 11 am she woke, and observed the child to be still asleep but on his back, which was not the position in which she had laid him down. She said that later, at about 1.30 pm, she heard a sort of scream. She then picked up the child, whom she found to be limp. She asked the appellant to telephone for an ambulance which he did, and the child was admitted to hospital. It rapidly became apparent that the child had sustained a severe fracture of the skull, and that injury was a significant cause of death, although death did not occur until November 1991. There was an extensive injury to the right side of the skull, which on the evidence would have required massive force, and could perhaps have been caused by holding the legs of the child and swinging its body against a wall, or some similar object. In the opinion of the doctors, the injury could not have been inflicted earlier than that Boxing Day morning.
Later examination of the child revealed other injuries. There was a bruise to the upper gum which, on the evidence, must have been inflicted between one and four weeks earlier. There were also fractures of four ribs, the seventh and tenth ribs being fractured at the back on both sides. The fractures of the seventh ribs were seven to ten days old, and those of the tenth ribs, two to four weeks old. Such fractures, the doctors observed, are usually caused by very severe squeezing force. Finally, there was a fracture of the lower end of the right shinbone near to the ankle. That injury could have been very recent. Such injuries are usually caused by gripping, twisting and pulling force.
When she gave evidence at the trial, Mrs Fitzgerald said that if the baby cried the defendant used to get aggravated, upset and annoyed. He would say, for example, "I'm watching something, I have been interrupted". The baby David, she said, did not settle well. He seemed to be crying quite a bit, but, she continued, she never saw either the appellant or Wendy hit the child.
Wendy Fulcher, when she gave evidence, said that she had nothing to do with any of the injuries, and she was quite sure about that. The medical evidence showed conclusively that the fatal injury, in particular, could not have been accidental. She said that she had never seen the appellant hit the baby, but claimed that she did see him slap the baby around the face, quite a hard slap. That was not something she said when she was interviewed by the police in the early stages of the investigation, because at that stage, when asked by a Detective Officer how the child got a fractured skull, she had replied, "Well, Dominic did not do it." She was then asked, "How do you know that?", and replied, "Dominic —well, Dominic never hit him". Naturally, she was questioned at the trial as to why she later modified that answer, and she was adamant that she had not invented the slap for the purposes of the trial. She herself admitted having hit the child, but in general her attitude towards the appellant was supportive. She said that he was pleased when he learnt that she was pregnant, and up to Boxing Day he was a loving, dutiful father. Sometimes he would bottle feed the baby, and occasionally he would change the baby's nappy. It was he, she said, who instigated the two visits to the doctor. Generally, she said, it was she who started rows, and he did not moan about the baby crying any more than she did. Indeed, she had told Mrs Patel from the Social Services that she found it hard to believe that Dominic would hurt the baby because he was so loving towards the child.
On 28 December 1990, whilst being interviewed by the Police, Wendy actually canvassed the possibility that it was she who caused the severe injury from which the child was then known to be suffering. The officer asked, "You think you did the injury then?" She answered, "I don't know". If the appellant was pleased that she was pregnant, there were times when she did not share his pleasure. At one stage she banged her tummy with her fist, and there was evidence of an admission from Mrs Patel which read, "She (meaning Wendy) tells me she cannot remember when she lost her temper, as she hardly gets angry, but her anger can get herself in a knot to the extent that she wanted to abort her unborn baby, David, by thumping her abdomen".
The appellant did not give evidence, or call any witnesses, but the jury had transcripts of his interviews with the Police. When seen at hospital, he was unable to offer any explanation for the baby's injuries. That remained his theme. The Judge did not, in her summing up, attempt to summarise what he said in interview, or read out selected passages, but she directed the jury's attention to the transcripts. At one stage Mr Jones, who has appeared for the appellant, was critical of that approach. In the context of this case we see no reason to criticise it.
In her summing up the Judge suggested that in approaching the evidence the jury should take three steps. The first step was to ask themselves: was the main injury caused by anyone who aimed violence at David? In dealing with that question she reviewed all the medical evidence. The second step was to ask: did the defendant cause the death of David? That was the point at which the other possible assailants, namely Mrs Fitzgerald and Wendy, had to be excluded. Then came the third step: when he aimed violence at David and caused the head injury, did he intend at least grievous bodily harm? The Judge also dealt with the possibility of provocation about which we need not be concerned.
Almost at the end of her summing up, after dealing with the evidence of Wendy and the interviews between the appellant and the Police, the Judge referred to the appellants character, and that is a topic to which we shall have to return.
However, the first ground of appeal arises out of a submission that was made at the close of the prosecution case to the effect that the case should be withdrawn from the jury. It is now contended that the Judge was in error in failing to direct the jury to acquit at that stage. She failed, it is said, to apply the correct test in law. Miss Rafferty, who was then appearing on behalf of the appellant, submitted that there were three reasons why the case should be withdrawn from the jury. First, there was no direct evidence linking the appellant with the fatal injuries which David sustained. Second, Wendy had been shown to be, she submitted, an unreliable witness, and thirdly the appellant should not be put at a disadvantage, compared with the position that he would have been in had Wendy been alongside him in the dock. The third point had no obvious intrinsic merit. Either the case could be proved against the appellant or it could not. As to the other two points, the prosecution case did depend very largely upon the extent to which the jury was prepared to accept that Wendy was a credible witness. But unless the credibility of Wendy was completely destroyed, it would hardly be appropriate for the Judge to usurp the function of the jury at the close of the prosecution case. Prosecuting counsel reminded the Judge of the decision of this court in the case of Galbraith ...
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