R v Van Dongen (Anthony Gerrard); R v Van Dongen (Mitchell)
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,LORD JUSTICE MAY |
| Judgment Date | 05 July 2005 |
| Neutral Citation | [2005] EWCA Crim 1904,[2005] EWCA Crim 1728 |
| Docket Number | Case No: 2004/03401/C1,No: 2004/03209/C1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 July 2005 |
[2005] EWCA Crim 1728
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE FORRESTER
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lord Justice May
The Hon Mr Justice Pitchers And
The Hon Mrs Justice Cox DBE
Case No: 2004/03401/C1
T20037393
Mr S Hadley and Mr T Clarke appeared for the appellant Anthony Gerrard van Dongen
Mr J Dein QC and Mr B Maguire appeared for the the appellant Mitchell van Dongen
Mr D E Waters QC and Miss B Cheema were instructed by the Crown
Introduction
The appellants, Anthony and Mitchell van Dongen, are brothers. Anthony van Dongen is 3Mitchell van Dongen is 24. They each appeal against their conviction of murder by a unanimous jury at the Central Criminal Court on 14th May 2004 before HHJ Forrester. They were each sentenced to life imprisonment with a recommended minimum term of 12 years 11 months. Contingently upon the outcome of their appeals against conviction, there are appeals against the length of their recommended minimum terms of imprisonment. This judgment deals with the conviction appeals.
The trial was a retrial, necessary because the judge at the first trial became indisposed.
The person who died was a 26 year old engineering student, Myo Thaung. Mitchell van Dongen admitted causing his death by kicking his head. His defences were self-defence, a lack of the necessary intent for murder and accident. Anthony van Dongen's case was that he was unconscious for most of the incident. He regained consciousness towards the end of the incident and may in self-defence have struck Alan Knapp, a friend of the man who died. But he had nothing to do with the injuries from which the victim died.
A defence of provocation was not advanced in evidence or forensically for either defendant. Whether or not to rely on a defence of provocation is a dilemma which often faces those representing defendants in murder trials whose main defence is self-defence or lack of intent. A defence of provocation may be intrinsically inconsistent with, or may otherwise weaken, other defences. But it is well established that the judge should direct the jury to consider a defence of provocation, even if it is not the defendant's overt case, if there is some evidence from whatever source from which the jury could find that there was provoking conduct which resulted in the defendant losing his self-control – see for instance R v Acott [1997] 2 Cr. App. R 94.
In the present case, Mr Dein QC, on behalf of Mitchell van Dongen, invited the judge to direct the jury as to provocation. Mr Waters QC for the Crown resisted this. The judge decided not to leave provocation to the jury. Mitchell van Dongen's main ground of appeal is that the judge was wrong here and that the conviction for murder is in consequence unsafe.
Mr Hadley, on behalf of Anthony van Dongen, adopts this ground of appeal, although he recognises that the nature of Anthony van Dongen's case, that is that he did not participate in the fatal attack, weakens the ground of appeal in his case. He submits, however, that, if Mitchell van Dongen's appeal succeeds on this ground, justice requires that Anthony van Dongen's appeal should also succeed. We are inclined to agree.
There is a second insubstantial ground of appeal which Mr Dein advanced without enthusiasm.
Facts
At about 1.30 am on 6th April 2003, police were called to Westferry Road, Isle of Dogs. They there found Myo Thaung unconscious in the road with severe head and internal injuries. After being treated at the scene, he was taken to hospital where he received surgery. But he died two days later.
The prosecution case was that the appellants jointly and deliberately attacked and beat the victim intending either to kill him or to cause him really serious bodily injury. The appellants denied that they had participated in a joint enterprise to attack the victim.
Mitchell van Dongen's case was that, although he admitted that he had inflicted with his foot the head injuries which caused the victim's death, he did so accidentally in reasonable defence of himself and his brother. He did not intend to kill the victim, nor to cause him really serious injury. Anthony van Dongen's case was that he was unconscious for most of the time. He had not intended to kill the victim nor cause him really serious injury. Indeed he had not inflicted any injury to him, although he may in self-defence have struck Alan Knapp.
Alan Knapp gave evidence that he and the victim were flat mates. They had been out that night celebrating his own birthday. They had been for a meal and then went to a bar with two other friends. He admitted that he became drunk. His memory was fragmented and he did not remember earlier parts of what had happened. The victim had drunk less than he had. He appeared in a relaxed and good mood. He became a larger and livelier person in drink, but was not aggressive. They walked home along Westferry Road. He was on the right hand side of the road and the victim was on the left. He became aware that the victim was in a scuffle with two white men. By the time he himself got to the other side of the road, the victim was on the ground and the two white men were both kicking him. The kicks were hard and aggressive, more than one kick from each man. One of the men stopped kicking the victim and came towards him aggressively. He put out his hand in peaceful gesture to try to diffuse the situation. The advancing man hit him on the back of his head with his fist causing him to drop the telephone he had in his right hand. He had already called the emergency services. Both men ran off down the street. He did not recall anyone holding or throwing anything.
The two other people, with whom the victim and Alan Knapp had been out that night, each gave evidence of the victim's condition and of how in general drink would affect him.
There was further eye witness evidence from five people who were driving past the incident. Four of these were in one car and the fifth in another car which was following the first car. They each gave detailed evidence and were cross-examined. These witnesses were Sarah Darwood, the driver of the first car, a BMW; Louise Everingham, her front seat passenger; Richard King, who was in the back seat behind the front passenger; and Tina Stephens, who was in the back seat behind the driver. Samantha Taylor was in a following BMW.
A fairly short summary of their combined evidence will suffice. There were some differences between their accounts, and some inconsistencies between their evidence in this trial and in the first trial.
The combined effect of their evidence, if the jury were to accept it, was that they saw two white men attacking a Chinese man who was on the ground by repeatedly kicking or stamping on him. Both the white men were attacking him. One was at the head of the man on the ground, the other towards his feet. The man at the head end stamped on or kicked the Chinese man's head. Some of these witnesses saw one of the white men with or wielding a road sign. Sarah Darwood said that the Chinese man had not been holding the road sign. On the ground, the Chinese man had his arms up trying to defend himself and offering no violence. The force used by the white men was hard and violent. Another man, who must have been Alan Knapp, shouted at the white men to stop. Samantha Taylor said that both white men were involved in the fighting. The Chinese man was on the floor scrunched up in a foetal position. One of the white men was kicking him. The other was just standing there about a foot away doing nothing to stop it.
One reason why it is not necessary to give a fuller account of this evidence lies in the post mortem and biological evidence, to which we will come in a moment. But this body of eye witness evidence was in our judgment amply sufficient, if the jury accepted it, for them to reject Anthony van Dongen's evidence and case that he was unconscious and did not take any significant part in the attack. It was also broadly inconsistent with a defence of self-defence.
Post mortem examination of the victim found a total of about 30 injuries. There were fifteen separate head injuries which, in the opinion of Dr Heath, the pathologist, would have needed a minimum of fifteen separate blows. The head injuries included bruising and abrasions. Two bruising patterns were likely to have been caused by stamping rather than kicking. The brain was soft, congested and swollen with haemorrhage between the brain and skull. The head injuries had caused the brain damage which had caused the victim's death. Injuries to his hands taken as a whole were defensive injuries, although it was possible that some of the injury resulted from him delivering a punch.
Generally one or two of the injuries could have been caused by falling, but not most of them. There was bruising to his chest and abdomen which could not have resulted from him falling to the ground. Bruises below the knee could have been so caused, but not one higher up on the knee. There were however 10 such injuries which, in Dr Heath's opinion, were consistent with the victim being curled up in a defensive position. The injuries below the waist were not the cause of death.
Dr Heath agreed in cross-examination that one injury to Mitchell van Dongen's back shown on photographs, which he had not seen before, could have been caused by a blow from a quite heavy road sign, which he was shown. The photographs showed another back...
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Tabeel Lewis v The State
...limb of the defence is properly to be considered as a whole was made too by May LJ giving the judgment of the Court of Appeal in R v van Dongen (Anthony Gerrard) [2005] EWCA Crim 1728; [2005] 2 Cr App R 632. Having identified the various elements of the defence - including the need for evi......
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...jury could reasonably find that Shonovia had a sudden loss of self-control. Tabeel Lewis v The State [2011] UKPC 15 applied; R v Van Dongen (Anthony Gerrard) [2005] EWCA Crim 1728 applied. 4. Where a summation is criticised on the grounds that it lacks fairness and balance, the criticisms......
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R. v. Jaw (S.G.), 2008 NUCA 2
...refd to. [para. 87]. R. v. Tremblay (2007), 50 C.R.(6th) 349; 2007 QCCA 696, refd to. [para. 87]. R. v. Van Dongen and Mitchell, [2005] EWCA Crim 1728, refd to. [para. 87]. Jersey (Attorney General) v. Holley, [2005] UKPC 23; 341 N.R. 285 (P.C.), refd to. [para. 87]. R. v. Parent (R.), [200......
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...C.C.C.(3d) 43 (C.A.), leave to appeal refused (2006), 361 N.R. 389; 227 O.A.C. 398 (S.C.C.), refd to. [para. 52]. R. v. Van Dongen, [2005] EWCA Crim 1728, refd to. [para. 52]. R. v. Mohammed, [2005] EWCA Crim 1880, refd to. [para. 52]. Jersey (Attorney General) v. Holley, [2005] UKPC 23; 34......
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