No: 00/3416/W5
BAILII Citation Number: [2000] EWCA Crim 110
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
 
Monday 4th December 2000
B E F O R E :

LORD JUSTICE OTTON

MR JUSTICE HIDDEN

and

SIR RICHARD TUCKER

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R E G I N A

‑ v ‑

THOMAS SUCH

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
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MR D MARTIN‑SPERRY QC appeared on behalf of the APPELLANT
MR GC MARSON QC appeared on behalf of the CROWN

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JUDGMENT
Monday 4th December 2000
1.	LORD JUSTICE OTTON:  In November 1995, in the Crown Court at Sheffield, this appellant, Thomas John Such, was convicted of attempted murder and was sentenced to twelve years’ imprisonment. On 7th June 1996 this Court, with a different constitution, reduced the appellant’s sentence to one of ten years’ imprisonment. He now appeals against conviction following a referral by the Criminal Cases Review Commission, and he applied for leave to call a witness, Dr Hickson, who gave evidence for the Crown at trial.
2.	The background of the offence can be briefly stated. It was the Crown’s case that on the evening of 10th November 1994 the appellant shot his wife, Carmen, from whom he was separated, in the head with a Webley Tempest  .22 Air Pistol as they sat in the appellant’s car. Before pulling the trigger the appellant said, “I’m going to kill you and then kill myself”. He put the pistol to the injured party’s head and the gun went off.
3.	Doctors later removed a metal foreign body from the injured party’s head. The discharged pellet would have been capable of penetrating an eye, thereby causing a potentially fatal wound.
4.	While in police custody, the appellant told  Dr Hickson, a police surgeon, that he had intended to kill the injured party and then himself.
5.	In his interview and in evidence the appellant said that he had intended to kill himself in front of the injured party, but when she saw the pistol she had grabbed it. He had accidently pulled the trigger during the subsequent struggle. He denied that he had ever told Dr Hickson that he had intended to kill his wife. At trial, the defence challenged the admissibility of that alleged confession.
6.	Carmen Such, when she came to give evidence, described how she and the appellant had been married in Belize when he was a serving soldier in 1986. However, after a time, he began to drink and abuse her verbally and physically. He left the Army in 1993 and the family settled in Bridlington. His drinking and violence grew worse, which led her to consider divorce.
7.	On the afternoon of 10th November 1994 the appellant met his wife and told her he needed her to sign some papers, ostensibly in connection with the divorce. He said that he wanted to talk to her and that it would be the last time that he would pester her. They agreed to meet that evening on what was called ‘neutral ground’ outside a medical centre.
8.	They met at 9 pm. At the appellant’s request, his  wife got into his car. He asked her to take him back, but she refused. He then told her that he would kill both of them. She ignored this, since he had always said things like that. However, he then produced a pistol and put it to the right‑hand side of her head. He pulled the trigger and the gun fired. She felt a burning sensation. She attempted to escape, but the appellant punched her in the face and grabbed and twisted her neck. She noted that he had been drinking, as indeed was the fact. She begged him to let her go and tried to calm him down. She opened the passenger door, at which she has a recollection that he fired the gun into the air. He calmed down enough for her to make her escape, but he ran after her. She managed to get into her car, but the appellant punched at her window as she drove away. He went back to his car and followed close behind her, at one point driving his car into the rear of hers, ramming it. She drove to a police station, where she reported the incident and was then taken to hospital. Her evidence was critical to the charge that he had attempted to murder her. In particular, the words that he used to her before he produced the pistol.
9.	The appellant was arrested on the following day. The pistol was taken from his car. On arrival at the  police station, he was searched and further pellets were found in his coat pocket. While in police custody on 11th November, the appellant was seen by Dr David Hickson, a police surgeon, and a Dr Ryan, a psychiatrist, in order to assess whether he was fit mentally for detention and interview.
10.	When the trial began an application was made on a voir dire to challenge the evidence of Dr Hickson, who was to say that when examining the appellant he had said, “I blew it again”. The doctor asked what he meant by that. The appellant replied that he had intended to kill both his wife and then himself.
11.	The defence sought to argue that this occasion attracted professional privilege and that it could not amount to a confession which was admissible in law. It would also be unfair to admit evidence of the confession under section 78 of the Police and Criminal Evidence Act.
12.	The trial judge found that the presence of Sergeant Jackson during Dr Hickson’s assessment of the appellant was incidental to the assessment and his presence did not convert the meeting into an interview, thereby attracting to it the PACE Codes of Practice. The appellant’s remark had been truly spontaneous and the appellant was not suffering from any mental illness  and had been found fit to be detained. No privilege attached to the occasion. The admission had not been obtained unfairly. There was nothing in the admission which would lead the judge to hold that its admission would have such an adverse effect on the fairness of the proceedings that he ought not to admit it. The evidence was therefore admitted.
13.	When Dr Hickson came to give evidence in front of the jury he explained that, while assessing the appellant in the presence of the custody officer, Sergeant Jackson, the appellant had told him that he had tried to kill himself a dozen times over the previous week. The appellant then said, “I blew it again”. When asked by the doctor what he meant, the appellant replied that he had intended to kill both himself and his wife. At the time the doctor had only made very brief notes and had no note of the appellant’s claim that he had intended to kill his wife and himself. However, he included it when he dictated his note into a dictating machine later that same evening, which was later typed by his secretary.
14.	He also told the jury that, on examination, he found the appellant’s state was calm. There was no evidence of psychotic illness. He was depressed but fit for attention and interview. As a precaution, however,  he sought the opinion of a Dr Ryan, a consultant psychiatrist, who, when he arrived, found that the appellant was fit for interview and not in need of psychiatric intervention.
15.	Other evidence was called in support of the prosecution case, including an account of what he told the police at interview, in which he spoke of his unhappy marriage and his suicide attempts. He claimed that he had purchased the pistol in order to kill himself, which he had intended to do in front of his wife. When she saw the pistol, she panicked. There was a struggle, during which the pistol had been fired accidentally. He had hit her to stop her screaming. After she ran to the car, he had chased her because he could not find the pistol and believed that she had it. He followed her in his car and crashed into the back of hers while still trying to locate the pistol. He then drove on to an industrial estate, where he attempted to hang himself. He had never intended to harm her and denied assaulting her, other than hitting her to keep her quiet.
16.	He gave evidence at trial, which was on all fours with what he had told the police officer. He was more explicit in this regard. He said that, when they were in the car, he had raised the pistol intending to put it  in his mouth. As he did so, the injured party grabbed it. The pistol accidentally fired during the struggle that followed. He had hit his wife because she panicked and became hysterical. He had not attacked her round the neck. He never said that he would kill her and then himself. He accepted that he had caused the injuries to her face and neck. He denied striking her while she was in her own car, but said he had banged on her window because he thought she had the pistol. He crashed into her car accidentally. By the time he had met her outside the medical centre, he had drunk six pints of beer. During the time he tried to kill himself, he consumed another twelve cans of lager.
17.	That, then, was the state of the evidence when it came to the summing‑up. No criticism is made of the summing‑up. Indeed, the judge was careful to give as accurate account as he could of what the victim had said in her evidence and the sequence of events which she gave of the critical period. At page 17G the learned judge said this:
“’And then he began asking me to take him back. He said he had not got a home any more because he had fallen out with his mother and she had thrown him out, but I refused. Then he said, ‘I’m going to kill you and myself’.
Then she made this observation, you remember, in the witness box, ‘I ignored him because he’s always saying things like that. And then he took something...’ ‑ it turned out to be the pistol ‑ ‘... from beside the  door on the right‑hand side and then he put it to the right‑hand side of my head and fired it. I felt a burning sensation. I tried to get out of the car. Then he fisted me in the face, got hold of my neck and began twisting it. He was under the influence of alcohol’, she said, ‘when he was doing this. I’d seen the beer cans in the back of his car.’” 
18.	Later she said:
“’I knew it was the end. I begged him. I had my children to live for, I told him, but he wouldn’t stop. He pulled at me and hit me but I managed to get the door open. I tried to scream for help to a man who was going by with his dog. I got punched some more. I tried to calm him down by saying, ‘Okay, I take you back.’  I said to him ‘I still care for you’, hoping to stop him. He fired the gun in the air again.” 
19.	In the event it is clear that the jury accepted the account given by the wife that this was a terrifying attack upon her, in the course of which he threatened to kill her and then himself and that the whole incident was one of violence against her. They rejected the defence account that the whole thing was an accident when the gun went off.
20.	The matter came before the Criminal Cases Review Commission in May 1999. On that occasion, Dr Hickson was asked to make a statement. He said that he had not been aware at the time of his examination that the appellant had been drinking. The amount he had consumed would have made it difficult to perform an accurate psychiatric assessment. He would not have taken seriously anything the appellant might have said during  the course of his examination since intoxicated people often say things which they later regret. It is necessary at this stage to retrace steps.
21.	The Commission discovered that there was within the papers disclosed to the defence a document which recorded the alcohol content of Such’s breath taken soon after Dr Hickson’s examination which showed that he was at least one‑and‑a‑half times above the permitted driving limit. They also had before them the evidence which showed that he had been drinking before the incident and the evidence which he gave to the police in interrogation and on oath that, after the incident, he had consumed what he claimed to have been twelve cans of lager. This apparently was not known to the doctor when he carried out his examination.
22.	A further piece of evidence was considered by the Commission, namely a note which was found in the back of the car and which was allegedly written shortly before the rendezvous outside the medical centre on that evening. The terms of that note need to be examined subsequently. The doctor told the Commission that he had not been aware of this particular note recovered from the appellant’s car. Had he known about the note, it might have changed his view of the appellant or his own actions. The ‘suicide note’, as he called it, and the  appellant’s drinking presented an overall picture of an obviously unbalanced man. It was possible that the appellant had not eaten much, which would have exacerbated his problems. The Commission, having heard that account from Dr Hickson, decided to refer the case to this Court.
23.	This morning, Mr Martin‑Sperry on behalf of the appellant made an application to call Dr Hickson, to which we acceded. He gave evidence largely in accordance with what he had told the Commission. He described how he was called in to assess the appellant’s mental state and that he decided that he could be detained in custody but he wanted the opinion of a consultant psychiatrist. He reiterated that the appellant had said to him words to the effect, “I blew it again yesterday” and that he had asked for an explanation of that expression and that Such confirmed that it was his intention to kill his wife and himself. He described how, when he gave evidence at trial he was not asked to consider the breath test or the note. If so, he might have taken a different view of whether or not he could place any reliance on that critical remark about the man’s intentions when he went to meet his wife. Had he known about these two matters, he would have come to the conclusion that Such was an unbalanced  man; that he would have taken into account the fact that he tried to commit suicide on twelve previous occasions, which would also have indicated a lack of balance, and that there were suicide notes, including this particular one, which would have caused him to take a great deal more care in assessing the mental state. He would have found it difficult to decide whether the appellant meant what he said and it would have raised grave doubts as to the reliability of that evidence.
24.	He was cross‑examined by Mr Marson QC on behalf of the Crown. He conceded that he was well aware that some alcohol had been consumed and he had never made any attempt to assess the amount of alcohol or degree of intoxication. He never asked any questions as to how much alcohol had been consumed. He noted at the time that the appellant was calm and talked in a coherent manner. He gave an account which he could understand, but he said it might still have been unreliable.
25.	The Court asked him to have a look at the note itself. It is written in his own handwriting on a piece of A4 and begins:
“Forgive me for what I do,
I know that whatever happens, it’s not going to give me Carmen back, but I just cannot live without her. When I spoke to her this morning after talking to her last night, I really, really hoped that we could give it another go. I now know that that was impossible. I’m sorry for the can of worms that is about to be opened. I never wanted this to happen, but I just cannot help it. I cannot live with a broken heart. Last night Carmen said that I wouldn’t be able to do it because I wasn’t strong enough. If the urge is strong and the reasons stronger anything can be done.
I love the woman. I hope everybody can realise why I have done this.
Bye, may you all forgive me!” 
26.	It is, of course, a matter of impression. He was obviously addressing that letter to a third party, namely anybody who came across it after the deed had been done. In one sense it is consistent with an intended suicide, but it is not exclusively so. Dr Hickson conceded that it was not an unequivocal intention to kill himself alone, and it left open the possibility that at the time that he wrote the note he contemplated at least killing or causing Carmen serious harm before he taking his own life. In those circumstances, we have to assess what weight to attach to that note.
27.	We would like to express our gratitude to Dr Hickson for coming and assisting us in this matter. These referrals by the Commission are always anxious matters for this Court to consider. We cannot proceed on the basis that, merely because the Commission has seen fit to refer the case to us, we should automatically feel obliged to set aside a conviction,  particularly in a matter as serious as this. The Commission are well aware of that and recognise that they are referring the matter to us on the basis of the fresh evidence for our evaluation.
28.	In evaluating what weight to attach to that fresh evidence we have to bear in mind that the appellant denied making the confession at all. His case was not that he said it but did not mean it. Dr Hickson was asked at trial if the appellant had consumed alcohol. He told the jury that he was aware, but he was not aware of how much alcohol had been taken.
29.	It seems to us that the first issue we have to address is to consider whether the defence counsel was aware of the existence at trial of the breathalyser result and the note. The Commission were suspicious that the evidence was disclosed as unused evidence and that it might not have been discovered by counsel then acting for the appellant. We have considered that possibility, but we conclude that there is an overwhelming probability that the existence of both the breathalyser result and the note were known to the defence team. First, we now know that because of the level of alcohol revealed by the breathalyser he was charged with the offence of driving above the permitted limit of alcohol. He appeared before the magistrates  and was committed for sentence to the Crown Court. It seems unlikely that the solicitors were unaware of what had happened.
30.	More important perhaps is that we are told by Mr Marson ‑ and we accept what he tells us because he prosecuted at trial whereas Mr Martin‑Sperry was not ‑ that both the breathalyser analysis and the note were disclosed, not, as may have been thought, as unused material, but as part of a small bundle of exhibits which featured in the case. No reference was made to either of those documents in the course of the trial, and were not included in the bundle provided for the jury. In those circumstances, we consider it highly unlikely that either of those documents did not come to counsel’s attention.
31.	We consider it is likely that a tactical decision was taken by the defence team not to deploy that evidence for what may well have appeared to them at the time to have been good reasons. First of all, the defence was one of accident. If the evidence as to the high degree of alcohol had been adduced, it might well have undermined the appellant’s own credibility as to how he recalled the accident happened. As to the note itself, the contents do not support impression that this was solely a suicide note. When it is read, as we have  already indicated, it is at least equivocal and is also consistent with the stated intention of a person who intends to kill his wife and then take his own life. If that document had been deployed before the jury, it would again have severely undermined the defence of accident and it would have been a tactical error if this had occurred. We can see good reasons which might have led counsel to take the decisions not refer those matters to the jury.
32.	Finally, we have to consider what effect that evidence would have had on Dr Hickson when he came to assess the state of mind of the appellant when he was first arrested, and secondly, we have to consider what effect that evidence would have had if it had been adduced before the jury. In doing so we bear in mind Mr Martin‑Sperry’s telling observation that if Dr Hickson had expressed the view that he was dealing with a man who was “unbalanced” any competent counsel would have used this to great affect on the voir dire and before the jury. The judge might well have ben persuaded to excluded the confession.
33.	Dr Hickson knew of previous suicide attempts, some twelve in number, from the conversation he had with the appellant. He was told how on one occasion at Carnaby he tried to take his own life when he had attempted to  hang himself. The doctor may have known about the attempt to hang himself immediately after the incident. Therefore, this particular part of the history and the note, in our view, take the matter no further. Dr Hickson said that, throughout the examination, he appeared rational, despite the suspicion that he had formed that he had taken some alcohol. We are not persuaded that, if these two factors had been available to Dr Hickson and that he had been so informed, it would have made any material difference to his conclusions. These two documents would not have lead inexorably to the judge ruling otherwise than he did on the voir dire.
34.	The jury had evidence of the suicide attempts, both from the wife and, more important, from the accused himself.
35.	They also had before them another document, known as MRC2, which was also found in the car, which was much more specific in its declared intent to commit suicide. They also had his evidence that he had consumed about six pints of beer before the rendezvous, and following the disastrous outcome he had consumed, on his account, another twelve cans of lager before being arrested.
36.	Consequently, with that background and all that evidence, we have come to the conclusion that these two  particular matters, if they had been adduced, would not have materially altered the approach of the jury. We do not consider that these factors would have undermined the fundamental testimony of the wife, whose evidence the jury obviously believed.
37.	As a final test as to the safety of this conviction, have to consider these two pieces of evidence against the rest of the evidence, which was compelling and to a large extent not specifically challenged.
38.	There was the evidence from the wife that, over the course of their marriage, there was a background of previous violence and heavy drinking. Some of this previous violence was not disputed by the appellant when he gave evidence. They had the evidence ‑ again not disputed ‑ of how he lured her into the car and he claimed that it was so that he could kill himself in front of her. He did not dispute that he was able to and did in fact form an intention to kill. In interview by the police he said he did not feel drunk and he knew what he was doing. He explained in interview how he had test fired the gun and that he intended to put it into his mouth. He stated that he thought that there was every possibility that the gun would “meet his requirements”. That phrase can only mean that it was  meant to do its job, namely to kill, and that he had the intent to use it for that purpose. He agreed in evidence that anyone putting this gun to his wife’s head and pulling the trigger would give rise to an obvious risk of serious injury and that anybody doing that must have intended to cause at least serious bodily injury. The learned judge reminded the jury of that particular passage in the interview at page 33, where he said:
“He agreed that it was a very dangerous thing to do to put a weapon like this against to somebody’s head and pull the trigger. He agreed that that would import the obvious risk of serious injury and that anybody doing that must have intended to cause at least serious injury. But he said, ‘I did not do that. I did not put it to her head and fire it’.
He did not know whether his finger had been on the trigger at the moment that the pistol went off. He said, ‘I did cause the injuries to her face and neck’. He said the injuries to the face was when he deliberately hit her ...” 
39.	The evidence was clear and unequivocal from the wife: she said that he proclaimed, “I will kill you and I’ll kill myself”. The jury must have, accepted that evidence before they were satisfied as to the vital ingredient of attempted murder, namely an attempt to kill, as opposed to a mere intent to cause grievous bodily harm. The position of the wound shown in the photographs is inconsistent with accident. After shooting his wife, he inflicted further violence upon her as she tried to escape from the car. This resulted in injury. He admitted in interview that he had hit her after the gun went off. After she escaped from the car, he pursued her and was seen to strike out at his wife through the window of her car and to bang on the window. After she drove off, he then deliberately rammed the car. The conversation at the police station with Dr Hickson indicated an intention to kill his wife and himself. The only real issue which the jury had to consider was whether he made that remark or not to Dr Hickson. If they accepted that he did make that remark, that was remarkably consistent with the wife’s evidence of what he said immediately he produced the fun. In those circumstances, we are satisfied, weighing the rest of the evidence against the two pieces of fresh evidence, that the verdict would in in all certainty have been the same. There was abundant evidence, without the two pieces of evidence which we have addressed today, on which the jury could safely convict and even with the further evidence they would have done so.
40.	We have come to the conclusion that there is no reason to consider this verdict is unsafe and we would dismiss this appeal.