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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Andrews, R v  EWCA Crim 2750 (15 October 2003)
Cite as:  EWCA Crim 2750
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COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FORBES
MR JUSTICE AIKENS
|- and -
|Jane Dawn Elizabeth ANDREWS
Mr B Houlder QC and Mr R Whittam (instructed by Treasury Solicitor) for the Crown
Hearing dates: 23rd and 24th September 2003
Crown Copyright ©
Lord Justice Kennedy:
(1) there is fresh mainly psychiatric evidence now available in relation to the appellant's allegations of being sexually abused as a child which is said to support the defence of diminished responsibility (original ground (c)).
(2) From the same evidence a clearer picture is said to have emerged of the appellant's mental characteristics which would, it is contended, have assisted the jury in relation to the issue of provocation (original ground (d)).
(3) The judge failed properly to direct the jury as to the affect of lies when considering "diminished responsibility" (additional ground).
We will return to look more closely at each of the grounds of appeal later in this judgment. At this stage we refer to them only to indicate the scope of the appeal, and to explain why it is necessary to look not only at the events of Saturday 16th September 2000 and Sunday 17th September 2000 when Thomas Cressman died, but also at what happened before and after those dates. For the purposes of this appeal it is not necessary to go into great detail, but it is necessary to set the scene. At the conclusion of the hearing on Wednesday 24th September 2003 we indicated that the appeal in relation to the first two grounds of appeal would be dismissed and that leave to appeal would be refused in relation to the additional ground. We now give our reasons for that decision.
Prior to 15th September 2000.
15th to 17th September 2000.
The interview account.
"I didn't know what else to do and I was just, I'm too ashamed to go and tell anybody what he kept doing to me."
"Q. Has he ever injured you before?
A. He did hit me once and I, on the face, and I was, I had a bruise on my face.
Q. Did you go to the doctors about that?
Between interview and trial.
"Would have enhanced substantially her sense of vulnerability, fear, helplessness and impulsivity. Given her initial exhaustion and her experience of physical abuse, it is highly unlikely that she would readily have been able to make lucid decisions as to her actions and clearly experienced an enhanced sense of threat to her personal safety. Whilst she was able to judge the nature and quality of her actions I consider her mental state was such as to reduce her awareness of her environment. That is to say, using a physical analogy, she might (be) considered as someone lost in a grey mist fearful of assault and prepared to defend herself against any perceived attack."
"Undergo a change in responses. They are more panicky and less able to judge what is happening. Threats seem greater than they are and resort to measures under threat of attack."
The appellant's evidence at trial.
"Q. You are not saying that you were so provoked by things that he had done or things that he had said to you that you stabbed him deliberately, you are not saying that are you?
A. Of course not. I didn't just snap.
Q. There was not a loss of self-control caused on the moment because of what he had done and what he had said to you?
A. No, not at all."
Issues at trial.
4. Provocation, properly left to the jury by the judge although not relied on by the defence.
5. Diminished responsibility, in relation to which the principle evidence came from Dr Turner and Dr Gamble.
After the Trial.
"Ms Andrews told me that she was awoken by Mr Cressman hitting her shouting 'I'm fucking going to kill you, you've gone too far this time.' Ms Andrews said that Mr Cressman had hold of her hair and she was begging 'please don't Tommy'. Ms Andrews said that she remembered standing at the foot of the bed, but told me that her next memory was of 'freaking' when 'I realised I had hit him'. She told me that she couldn't breathe and that Mr Cressman was screaming at her that he was going to kill her. She remembered that he was in the centre of the bed and she began cowering on the floor telling him not to hurt her. Ms Andrews said she had her head in her arms and wondered if she had the knife in her hand however, she could not recall this accurately. She remembered her hair being pulled and Mr Cressman who she believed was kneeling on the bed bearing down on top of her. Ms Andrews recalled that she couldn't move, felt cold, was shivering, couldn't catch her breath and was naked. She also remembered grabbing at Mr Cressman's leg. Ms Andrews then told me that the next thing she remembered was being on the other side of the bedroom door, hanging onto the door handle."
"In my opinion, at the time of the index offence, Ms Andrews was suffering from both a depressive illness and post traumatic symptomatology super-imposed on her already abnormal personality structure."
"I have formed the opinion that she was distressed, frightened, anxious and angry prior to the offence. If her account of Mr Cressman's actions is accurate, then his actions would have been terrifying and provocative. It is worth noting that, as part of Ms Andrews complex phsychopathology, she was at times impulsive, suffered marked mood instability and anxiety, had significant abandonment fears and would franticly try to avoid abandonment. At times her efforts to avoid abandonment would result in impulsive actions. Thus the proposed abnormality of mind as outlined above, is also relevant when considering provocation."
"Of particular relevance is the acute provocation on the day of the offence itself, comprising the anal rape and, later that night, the repeated assaults on her by the deceased when they were in bed together. Jane Andrew's decision to protect herself with a cricket bat and a knife (rather than to leave the house and escape her tormentor) presumably arose from her desperation not be abandoned in this relationship."
This appeal: First two grounds of appeal.
"(c) It has emerged since the trial that the issue of child sexual abuse .. is far more significant than it first appeared. We submit that had this been known at trial the defence of diminished responsibility, which was raised at trial, would have been far more likely to succeed. We therefore submit that the information now available casts doubt upon the safety of the conviction. We also submit that it is evidence capable of belief and we provide a reasonable explanation for the failure to adduce it at trial. We submit that the new material provides a basis for the view .. that, at the time of the killing, the applicant's mental responsibility for her actions was diminished within the meaning of the Homicide Act 1957. It is therefore proposed to apply for leave to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968, consistent with the reports of Dr Fiona Mason's statement and her report annexed thereto. ..
(d) Finally, the mental characteristics as defined by Dr Mason in her report . had not been attributed to the applicant at the time of her trial and thus were never canvassed before the jury. We submit that many of those characteristics which form part of the applicant's complex psychopathology, including her impulsivity and fear of abandonment, anxiety, mood instability and poor self-image in particular, would have given rise to abnormally heightened responses in the face of the particular provocation, especially when the conduct of the deceased was likely to have caused a flash back of the abuse situation. Therefore the jury could have legitimately given weight to these characteristics in considering provocation and it is unjust that the option was not available to them."
"(1) For the purposes of this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice -
(c) Receive any evidence which was not adduced in the proceedings from which the appeal lies;
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -(a) Whether the evidence appears to the court to be capable of belief;(b) Whether it appears to the court that the evidence may afford any ground for allowing the appeal;(c) Whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and(d) Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
"Was the abnormality such as substantially impaired her mental responsibility for her acts in doing the deed? It is a question of degree. Was the impairment of her mental responsibility slight or trivial, or was it substantial? That is a question for you alone to decide having regard to all the facts that you find established by the evidence."
The additional ground of appeal.
"The next matter of law about which I shall direct you is the question of lies told by the defendant and your approach to them. It is particularly with regard to the lies she admits she told to the police about thinking that Tom Cressman had only suffered minor injuries when she left the house. She told that lie both to the police and indeed to Dr. Turner. She told Dr. Turner, for example, that she saw some blood on herself and thought that she herself was hurt and that when she left the house she thought that Mr Cressman was after her.
In addition, she told a number of lies in the days following her flight. In particular she sought to cast suspicion elsewhere by saying that he had been blackmailed. She admits that she told those lies.
The reason she told those lies, say the defence, is that she was unable to bring herself to face the fact that she had, although in self-defence and accident killed the man she loved. The reason she told those lies say the defence is because she was unable to bring herself to face the fact that he had died in the circumstances she there described and after all it was the man she loved.
When you are considering the question of any lies that you find the defendant told, you should not rely on any of them as supporting the prosecution's case unless you are sure of the following: First, that the lie you are considering was a deliberate lie; secondly, it was not told for an innocent reason, for example, to bolster up a genuine defence as here, self-defence and accident. The reason is that people often do tell lies for innocent reasons. The fact that a person has told a lie is not indicative of guilt necessarily, because it might be a lie told, or lies told for an innocent reason or reasons. What you have to consider in this case is what the defendant herself said, that she did not think she would be believed. It is only if you are sure that the lie you are considering was told from a consciousness of guilt and a fear of the truth that you can use it as supporting the prosecution's case. I emphasise that even then it can only support the prosecution's case, but is not of itself and can never be of itself proof of guilt.
There is one further matter on the question of lies. If you are considering the issue of provocation. Lies are not necessarily inconsistent with provocation. In this case the fact that she told lies about his being only slightly injured and the lie about the blackmail are not logically inconsistent with provocation and should not in your consideration be considered as being inconsistent with provocation. "
"(The judge's) approach appears to us to overlook the vital and incontestable fact that a man who has killed by reason of loss of self-control, and therefore faces arrest, trial and possible lengthy imprisonment, may have almost as strong reasons for attempting to conceal his deed and lie about his involvement as a man who has killed deliberately.
.. The point is that the jury should be alerted to the fact that, before they can treat lies as tending towards the proof of guilt of the offence charged, they must be sure that there is not some possible explanation for the lies which destroys their potentially probative effect. Applying that concept to the present case, could the jury be sure that attempts to conceal the killing and lies were inconsistent with the appellant's case that he had killed as a result of provocation, and pointed to murder.
In principle, however, the need for a warning along the lines indicated is the same in all cases where the jury are invited to regard, or there is a danger that they may regard lies told by the defendant, or evasive or discreditable conduct by him, as probative of his guilt of the offence in question. "