R v Malcherek
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 17 March 1981 |
| Judgment citation (vLex) | [1981] EWCA Crim J0317-6 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Nos. 5284/B2/79 |
| Date | 17 March 1981 |
[1981] EWCA Crim J0317-6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Lord Justice Ormrod
and
Mr. Justice Smith
Nos. 5284/B2/79
5490/A2/79
MR. T.G. FIELD-FISHER Q.C. and MR. A. BAILEY appeared on behalf of the Appellant Malcherek.
MR. J. SMYTH Q.C. and MR. D. GORDON appeared on behalf of the Crown.
MR. W.R. STEER Q.C. and MR. J.S.H. STEWART appeared on behalf of the Applicant Steel.
MR. J. SMYTH Q.C. and MR. J.M. MEREDITH appeared on behalf of the Crown.
These two appeals, one an appeal and the other an application, raise similar points and it was accordingly thought convenient that they should be dealt with together, and that is what has happened.
The facts of the two cases are as follows. I start with Steel. This man, on 13th December 1979, at the Crown Court at Leeds before Mr. Justice Boreham and a jury, was convicted of murder, and he now applies to this court for leave to appeal against conviction and also to call certain witnesses – two medical men.
The victim of the attack was a girl called Carol Wilkinson. She was 20 years of age at the time. She lived in the Ravenscliffe area of Bradford with her fiance' and worked at a bakery which was situated about half a mile away from her home. The Applicant Steel was then aged 21. He lived not far away in another house on the same Ravenscliffe estate. He was sharing accommodation with a girl named Pamela Ward, but at the same time he was carrying on an association with another girl whom he eventually married. Steel was employed by the local council as a gardener.
It was on 10th October, 1977, at about nine o'clock in the morning that Carol Wilkinson was walking to work from her home to the bakery. At some time on that morning between about nine o'clock and half-past nine, she was savagely attacked by someone who stripped off the greater part of her clothing, and then battered her about the head with a 50 lb stone which was found nearby. She was found shortly afterwards, in a field by the road, unconscious.
She was taken as rapidly as could be to hospital. She had multiple fractures of the skull and severe brain damage as well as a broken arm and other superficial injuries which need not concern us. She was put almost immediately upon a life support machine in the shape of a ventilator.
On 12th October the medical team in whose charge she was, after a number of tests, came to the conclusion that her brain had ceased to function and that, accordingly, the ventilator was in effect operating on a lifeless body. The life support machine was switched off and all bodily functions ceased shortly afterwards.
The learned judge withdrew the issue of causation from the jury on the fifth day of that trial, and the jury were accordingly left to decide the issue, hotly contested, of whether they were sure that it was the Applicant who had been the girl's assailant.
The case for the Crown depended very largely, though not entirely, upon admissions which were said to have been made by the Applicant, both orally and in writing, to the police during the time in April of 1979 when he was being questioned about events of 10th October, 1977. Part of the grounds of appeal is based upon the allegation that those admissions were wrongly allowed to go before the jury by the learned judge when the admissions had, it is said, been extracted from the Applicant by threats or by oppression or possibly in contravention of the Rules. That aspect of the application has been left in abeyance until the problem of causation, with which we are concerned now, has been concluded.
So far as that issue is concerned, namely the issue of causation, the following facts are material, Upon admission to the casualty department of the Bradford Royal Infirmary at about a quarter past ten on the morning of Monday, 10th October, Carol was seen by a Dr. Nevelos, who found her to be deeply unconscious with no motor activity, her eyes open and the pupils fixed. She was breathing only with the aid of the ventilator. An hour later she was admitted to the intensive care unit of the Royal Infirmary and during the whole of that day she remained deeply unconscious and unresponsive. At ten o'clock in the evening the consultant neuro-surgeon, a Mr. Price, examined her. He found her to be in a deep coma, unresponding to any stimulus. He carried out a test for electrical activity in the brain which proved negative. The total absence of any motor activity since the girl had been admitted to hospital and the early fixation of the pupils, which I have already mentioned, led him to the conclusion that there had been a devastating impact injury to the brain.
The cerebral function monitor showed no activity. Her eyes were too occluded, so it is said, to allow any caloric testing. The suggestion was made by Mr. Price that her temperature should be raised and that if by the morning her cerebral function remained as it had been up to date, namely zero, they should declare her brain to be dead. In fact, in the morning shortly after ten o'clock, a cerebral blood flow test was carried out which indicated that there was no blood circulating in the brain. Several electroencephalogram tests were made during that day. None of them had any positive effect.
On Wednesday, 12th October, two days after the injuries had been inflicted, another electroencephalogram test was made in the morning and another one at six o'clock in the evening but none of these tests showed any signs of electrical activity at all. After that there was a consultation between the doctors who were in charge of the patient, and it was agreed amonst them that the continued use of the ventilator was without any purpose. At 6.15 the patient was withdrawn from the ventilator, and at 6.40 she was declared to be dead. There is an indication, though we are told it was not part of the evidence at the trial, that upon post-mortem 50 minutes later it was found that her brain was already in the process of decomposition. Much of the cross-examination of the medical men was taken up with suggestions that they had failed to conform to certain criteria which have been laid down by the Royal Medical Colleges on the subject of the ascertainment of brain death.
The matter which Mr. Steer invites this court to take into consideration as possibly differentiating the case of Steel from that of Malcherek is that he says that two of the suggested tests were not carried out properly, namely the corneal reflex test and the vestibular-oocular reflex test. The corneal reflex test consists of touching the cornea of the eye with a piece of cotton wool to see if that creates any reaction in the patient and, as we understand it, the vestibular-oocular reflex test consists of putting ice cold water into the aperture of the ear, again to see if that produces any reflex in the patient. Reasons were given for neither of those tests having been carried out.
We now turn to the facts in the case of Malcherek. On 12th November 1979, this time at the Crown Court at Winchester before Mr. Justice Willis and a jury, this Appellant was convicted of murder. He appeals against the conviction by leave of the single judge. The victim was Christina Malcherek, his wife, who was then aged 32. It seems that in November of 1978 she left the Appellant in order to go and live with her daughters at Poole. There was a non-molestation order in force, directed at the Appellant, but on the evening of 26th March 1979 he went to her flat where she was living. There was a quarrel and, to cut a long story short, he stabbed his wife nine times with a kitchen knife. One of the stabs resulted in a deep penetrating wound to Mrs. Malcherek's abdomen.
She was taken to Poole General Hospital and there was preliminary treatment in order to try to rectify her very low blood pressure, which was ascertained on admission. The surgical registrar then performed a laparotomy and removed rather more than one and a half litres of blood from the abdomen. There was a section of the intestine which was damaged, and he excised that and joined up the two ends. For several days it seemed as though Mrs. Malcherek was making an uneventful recovery. Indeed, she was clearly confidently expected to survive. However, on 1st April she collapsed and the preliminary diagnosis was that she had suffered a massive pulmonary embolism. She was resuscitated and arrangements were made for her admission to the Western Hospital at Southampton, which was equipped to deal with this type of emergency. She arrived there shortly before midnight. A couple of hours later her condition suddenly deteriorated and her heart stopped. She was taken straight away to the operating theatre and given cardiac massage. The surgeon then opened her chest. He found that her heart was distended and not beating. He made an incision into the pulmonary artery and extracted from the pulmonary artery a large clot of blood some twelve inches long, which had plainly formed in one of the veins of the leg (which, we are told, is a common complication of major abdominal surgery), and had then moved on from the leg to the pulmonary artery with the results already described.
When the clot was removed the heart started again spontaneously. It will be appreciated that since the heart was not beating for a period of something like thirty minutes there was a grave danger of anoxic damage to the brain. She was returned to the ward and connected to a ventilator. Throughout the Monday she remained on that machine receiving intensive care, but in the afternoon an...
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