R v Maria Del Carmen Marchese
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 11 February 2008 |
| Neutral Citation | [2008] EWCA Crim 389 |
| Docket Number | No. 2007/01032/B2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 February 2008 |
[2008] EWCA Crim 389
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
The Lord Chief Justice Of England And Wales
(Lord Phillips Of Worth Matravers)
Mr Justice Royce and
Mr Justice Beatson
No. 2007/01032/B2
Miss Alison Levitt appeared as an Amicus to assist the court
Mr Mark Fenhalls appeared on behalf of the Crown
Monday 11 February 2008
Introduction
On 2 August 2006, in the Crown Court at Southwark, before His Honour Judge Price and a jury, the appellant Maria Marchese was convicted of four offences. They are as follows:
Count 1
Statement of Offence
Harassment, contrary to sections 4(1) and 4(4) of the Protection from Harassment Act 1997.
Particulars of Offence
Maria Marchese, between 1st October 2002 and 7th September 2003 within the jurisdiction of the Central Criminal Court, you caused Deborah Pemberton to fear that violence would be used against her by your course of conduct which you knew or ought to have known would cause fear of violence to Deborah Pemberton on each occasion in that you sent malicious and threatening texts and messages and made malicious and threatening phone calls that you would cause violence to Deborah Pemberton.
Count 2
Statement of Offence
Threats to kill, contrary to section 16 of the Offences against the Persons Act 1861.
Particulars of Offence
Maria Marchese on divers days between 1st October 2002 and 7th September 2003 within the jurisdiction of the Central Criminal Court, without lawful excuse you made to Deborah Pemberton threats to kill her intending that Deborah Pemberton would fear that the said threats would be carried out.
Count 3
Statement of Offence
Harassment, contrary to sections 4(1) and 4(4) of the Protection from Harassment Act 1997
Particulars of Offence
Maria Marchese between 1st October 2002 and 7th September 2003 within the jurisdiction of the Central Criminal Court, you caused Jan Falkowski to fear that violence would be used against him by your course of conduct which you knew or ought to have known would cause fear of violence to Jan Falkowski on each occasion in that you sent malicious and threatening texts and messages and made malicious and threatening phone calls that you would cause violence to Jan Falkowski.
Count 4
Statement of Offence
Perverting the course of Justice, contrary to Common Law
Particulars of Offence
Maria Marchese, on 21st January 2004 within the jurisdiction of the Central Criminal Court, with intent to pervert the course of public justice, you did an act which had a tendency to pervert the course of public justice in that you made a false allegation of rape against Jan Falkowski.
The appellant was sentenced on 19 January 2007 to a total of nine years' imprisonment made up as follows: on count 1, three-and-a-half years' imprisonment; on count 2, four-and-a-half years' imprisonment concurrent; on count 3, three years' imprisonment concurrent; and on count 4, four-and-a-half years' imprisonment. The appellant was also made the subject of a restraining order without limit of time and of a compensation order of £18,000 (£9,000 to be paid to each complainant).
After the trial the appellant dismissed her counsel. She instructed instead Miss Alison Levitt. Miss Levitt settled an application for leave to appeal against conviction on each of the four counts, and against sentence. That application was settled with considerable skill. From some of the background documents that we have seen, it is plain that Miss Levitt acted with commendable concern for the appellant's interests. Nonetheless, the appellant decided to dispense with Miss Levitt's services.
Having considered her position, Miss Levitt decided that she was no longer in a position to act for the appellant, but offered to be present today in case the court wished for any assistance from her. We accepted that offer. With the consent of the appellant, we invited Miss Levitt to assist the court and to make the submissions that she would have made had she been acting for the appellant. That she did and we are grateful to her. Those submissions were supplemented by some submissions made by the appellant herself, although they added nothing of substance to the submissions that had been made to us by Miss Levitt.
The appellant appeals against conviction on ground 1 with leave of the single judge. She renews her application for leave to appeal on the other grounds.
The Facts
Most of the evidence adduced by the prosecution at the trial was not in issue. The appellant was born in 1961 in Argentina. She came to live in the United Kingdom at the age of 17.
By about 1997 she was in a relationship with George Attard, who had a history of psychiatric illness. George Attard began treatment at St Clements Hospital in East London, where he saw a consultant psychiatrist, Dr Jan Falkowski, for 30 minutes every two to three months. The appellant occasionally accompanied Mr Attard to these appointments.
In late 2001 Dr Falkowski became engaged to Deborah Pemberton. Their engagement was publicised in a National Health Service magazine that was available to patients.
Mr Attard was admitted as a voluntary inpatient to St Clements between 22 April and 19 June 2002. The appellant was later to allege that she had been raped by Dr Falkowski when she attended the hospital to visit Mr Attard one day in June 2002.
The harassment charges in the indictment relate to the period 1 October 2002 to 7 September 2003.
On 25 October 2002, Dr Falkowski and Miss Pemberton received calls on their mobile phones while they were driving down to stay at Miss Pemberton's flat in Poole. The calls were threatening. They were made by both a man and a woman. Dr Falkowski also received anonymous texts which included the words “You will never know how much I feel for you in the last four years”.
Dr Falkowski and Miss Pemberton reported this to the Dorset Police. Thereafter they kept a log of calls and texts of this nature that they received. Over the following eleven months they received very many text messages which revealed close knowledge of their personal lives and movements. The messages displayed considerable hostility to Miss Pemberton and to the planned wedding, which was to be held at Salterns Hotel.
On 28 October 2002, on their return to London, Dr Falkowski and Miss Pemberton went to a boat that Dr Falkowski kept moored in Limehouse Basin. They found the lights on, when they had been left switched off. Two days later they went to the boat again and found that the gas stove had been turned on, unlit (“the gas incident”). The lock-keeper at the Marina, Elizabeth Mills, gave evidence that a woman of Mediterranean appearance had attempted to enter the secure area of the Marina, claiming to have an invitation to dinner with Dr Falkowski. She described the woman as having orange hair, which was at odds with the colour of the appellant's hair which is black. Later she attended an identity parade at which she did not identify the appellant as the woman whom she had seen, but picked out somebody else.
On 30 November 2002, Dr Falkowski received a text message suggesting that Miss Pemberton could “end up in Limehouse Poole”. He also received a note pushed through the door of his flat. Expert evidence later established that this had not been written by the appellant.
In the succeeding months calls and text messages were also sent to friends and family, and to Miss Pemberton's place of work. They intensified as the wedding approached. They contained clear death threats, of which a text sent on 22 August 2003 to Miss Pemberton saying “2 weeks left before gunman visit u, 6.9 the date” was a typical example.
The stress on the engaged couple was very severe. Their relationship was destroyed. They resolved to call off the marriage. However, the Dorset Police asked them to pretend that the marriage was to go ahead in the hope of catching whoever was harassing them.
In June 2003 a woman visited Salterns Hotel at which the wedding was to take place. She spoke to Sharon Malin, the chef. Miss Malin later identified the appellant as that woman in an identification parade. Miss Malin's number was found recorded when the appellant's flat was searched by the police.
On 5 September 2003, Miss Malin received two texts relating to the wedding. The latter stated, “Please get Jan to call off wedding 6.9.03 many will be dead if they go ahead!"
On the day the wedding was due to take place, 6 September 2003, a flurry of telephone calls were made, some from Bournemouth and some from Poole. The appellant had been in Bournemouth at the time of the former. She later explained this by saying she had got off a train from Waterloo to Poole by accident. Police arrested her after she had emerged from a telephone box in Poole from which a series of further calls had just been made. She was found to have £16 worth of coins in her possession.
The appellant's arrest marked the end of the first period covered by counts 1–3. In interview she denied making any of the calls. At this stage she made no allegation against Dr Falkowski.
Dr Falkowski and Miss Pemberton's relationship having come to an end, the wedding never took place. Dr Falkowski had in fact started a new relationship with Bethan Ancell in May 2003.
Following the appellant's arrest, Dr Falkowski realised the connection between her and Mr Attard and ceased to treat him. The appellant complained to the hospital about this decision.
On 8 December 2003, the Crown Prosecution Service informed the appellant that it had decided...
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