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23 May 2017

The Trial: A Murder in the Family (Part Two)

On Sunday night, Channel 4’s part drama-part documentary into the workings of the criminal trial system commenced. In Part One of our daily series commentary, Kim Potts explored issues surrounding the jury’s mixed response to a “no comment” interview by the defendant Simon Davis, as well as the dawn of defence opening speeches as a method of “redressing the balance” at the early stage of a trial.

In episode two, the 12 men and women of the jury heard the continuation of the prosecution case, led by Max Hill QC, and heard the evidence of a forensic pathologist as well as from three witnesses who in one way or another were associated with the defendant and/or the victim.

The jurors continued to engage in private in a lively manner about the proceedings they had observed. From a lawyer’s perspective, it is fascinating to see how their dialogue develops in the jury room. During the course of a trial, it is easy to speculate as to the conversations which may be going on behind the jury room door. The Trial shows jurors as human, and bring their own individual experiences to bear when assessing the evidence being laid before them. Indeed, the Trial is helping to demonstrate why the jury system is an important right in our legal system, despite recent comments to the contrary by Lady Justice Hallet who suggested in a speech at Pembroke College, Oxford that the jury system may be disproportionate in petty crime cases, and the Government should “remove the right to elect a trial by jury in cases that simply do not warrant it.”

We saw in episode two how one juror’s experience as a complainant in a sexual abuse case had led to disappointment when her alleged abuser was not convicted. Might this lead her to be more willing to “stand up” for the victim and condemn Mr Davis? Similarly, could the retired health visitor’s stark experiences with cases of domestic abuse lead her to more easily believe Mr Davis capable of incomparable violence against his wife? Or could the principled abhorrence of the ex-military man towards lying and cheating lead him to feel sympathy for Mr Davis’ plight, both as a cuckolded husband and as a potential victim of a miscarriage of justice?

Forensic evidence

The jury heard first from Dr Millington, forensic pathologist for the prosecution, regarding DNA found on the back of Carla Davis’ neck and the testing carried out on Mrs Davis’ unborn foetus. It was stated that DNA testing proved Mr Davis to be the biological father. Dr Millington also gave evidence about the DNA swabs taken from Mrs Davis’ neck being a full match to the defendant.

Through effective cross-examination, the defence sought to demonstrate to the jury how it is impossible to take this type of forensic evidence at “face value.” Issues of transference via saliva or through Mr Davis’s attempts to resuscitate his wife were established. As a consequence, the jury spent some considerable time ruminating on the possibilities laid before them, for example whether Mr Davis may have touched the back of his wife’s neck by lifting or resuscitating her. One juror, despite having no evidence on which to base his hypothesis, stated “no, I don’t think he did lift her.” Whilst the jury should be given a direction by the judge during his summing up at the close of proceedings as to the prohibition against speculation, and the requirement on them to only try the case on the evidence presented, one has to wonder whether this direction may be “too little, too late” for this group, who appear keen to debate hypothetical scenarios at this very early stage. It will be for the defence, if they can, to present alternative possibilities for the forensic evidence which serve to cast doubt on the prosecution’s version of events.

Bad character evidence

The principal focus of last night’s programme was not in fact the DNA evidence, but the exploration of the apparently violent dynamics of Mr and Mrs Davis’ marriage. This was done through the evidence of three witnesses; the sister of the victim, a friend of the victim (Zoe Walter) and the defendant’s ex-wife (Joanna Walker).

Both the victim’s sister and Ms Walter gave evidence about an incident in which it was alleged the defendant had physical assaulted his wife during an argument about who should put their children to bed. Ms Walter claimed to have been present in the house at the time, when Mrs Davis had alleged that her husband had slapped her in the face. Mrs Davis’ sister claimed the account she heard was that the defendant had grabbed his wife around the mouth area in order to quieten her. Despite the discrepancies in these two accounts, the prosecution sought to lay the ground work for depicting Mr Davis to be a man with an uncontrollable and violent temper who was prone to lashing out at his wife during times of stress. The obvious progression of this argument, of course, is that there was such a moment of stress in which Mrs Davis revealed her affair with Lewis Skinner, which led to the defendant lashing out and killing her.

The propensity of Mr Davis to commit such violence was further corroborated by the production of his ex-wife, Joanna Walker as a witness for the prosecution. Ms Walker gave evidence about a historical event 25 years ago in which the defendant had lost his temper with her after a dinner party and slapped her hard around the face, an act which brought to an end their relationship.

How were the prosecution able to adduce such evidence of Mr Davis’ ‘bad character’?

Under section 101(1) of the Criminal Justice Act 2003, the prosecution are able to adduce evidence of the “bad character” of a defendant via seven potential gateways. Some of these gateways would clearly not be applicable in this case – it is unlikely the defence would, for example, agree to this evidence being adduced (s.101(1)(a)) or the defendant himself volunteered the information (s.101(1)(b)). Likewise, as the defence has not yet opened its case, it cannot be said that Mr Davis has as yet made an attack on another person’s character (s.101(1)(g)) or that the evidence is necessary to correct a false impression created by the defendant (s.101(1)(f)). It is most likely therefore for the prosecution to rely on s.101(1)(c), (d) and (e) in order to adduce this evidence. These sections cover important explanatory evidence, evidence which is relevant to a matter in issue between the prosecution and defence and evidence which has important probative value. All three of these could be applicable to the matter of Mr Davis’ propensity to violence with both his ex-wife and the victim, given the violent nature of Carla Davis’ murder.

The jury also heard evidence from Mrs Davis’ sister, who was cross examined about the victim’s history in foster care, her drinking and drug taking from an early age, and her previous arrests. Max Hill QC, in interview, stated; “A person’s status as “victim” cannot sanitise our view” and commented that the defence would not normally refer to problems of a victim in adolescence unless they were of relevance. In this case, the evidence of Carla’s past troubles demonstrated she had remained “headstrong” in later life and this was borne out by evidence of her extra-marital affairs. The prosecution called one of Mrs Davis’ ex-lovers, a builder, to give evidence. He had commenced an affair with the victim only a week after first meeting her. The jury were given lurid details regarding the locations of their sexual encounters. Whilst the prosecution may have been seeking to provide the jury with further reasons for the defendant having lost his temper with his wife, it may have been a gamble to be seen to taint the memory of a murder victim with what was essentially unnecessary and unhelpful evidence.

The circumstances in which evidence may be adduced of the bad character of someone other than the defendant are more limited. Under s.100(1) Criminal Justice Act 2003 it must be either important explanatory evidence, have substantial probative value for a matter in issue or for the case as a whole, or all the parties must agree to the evidence being admissible.

In this case, it was difficult to see how the evidence about Mrs Davis’ past was entirely admissible. Whilst the defence claimed that this evidence was not simply “muck-slinging,” the reason for its inclusion was not fully explained. It cannot be suggested that Mrs Davis brought about her own death by virtue of being unfaithful or headstrong, especially since Mr Davis protests his innocence. The prosecution would inevitably seek to persuade the jury, given her own sister’s evidence (that the victim was “difficult to live with” and she “could see how it could have happened,”) that this shows it was more likely than not the murder was committed by the defendant in a fit of rage. The defence did not appear to address this nuance in a particularly effective way.

Should Mr Davis take the stand?

We were privy in last night’s episode to discussions between the leading and junior barristers for the defence, and with the defendant himself, about whether he should take the stand and give evidence. Mr Davis’ junior barrister, Lucy Organ, expressed concerns about how Mr Davis would appear when giving evidence. A paper produced by the defendant for his legal team appeared to compound her worries about him seeming controlling and petty to the jury, which could lend support to the prosecution theory. John Ryder QC, leading, did not appear to share Ms Organ’s concerns. We await a final decision on this; which ultimately would be for the defendant himself with the guidance of his barristers. Thus far, Mr Davis has only put across his defence to this crime by way of a prepared statement read out by his solicitor at the police station. His defence quite clearly is he found his wife after she had already been killed. The jury are aware of this, and the prosecution must prove to them so they are sure that he did commit the murder. A defendant is under no obligation to give evidence in his own defence (Criminal Evidence Act 1898, s.1(1)) and can simply choose to put the prosecution to proof on the evidence they have. However, given Mr Davis’ defence is one of alibi (i.e. he was not present in order to commit the crime) then it would be open to the judge to direct the jury that they are able to draw an adverse inference from the defendant’s silence at trial.

This direction would not be automatic.  The judge (in the absence of the jury) would likely seek submissions from both prosecution and defence counsel as to whether such a direction should be given. In any event, it is an issue which the jury appear to already have turned their minds to, with one juror commenting that he would judge Mr Davis adversely if he did not give evidence and another apparently looking forward to hearing his side of the story. Another commented that if he were innocent of a crime, he would want to have the opportunity to plead his case in the strongest terms. If Mr Davis does not give evidence, and the judge does not choose to give an adverse inference direction, it appears the jury may be influenced by this decision in any event.

The evidence regarding Mr Davis’ temperament may be stacking up against him. The defence may have no alternative but to accept he has controlling or obsessive tendencies, and that any evidence given by him is likely to corroborate this unfavourable assessment of his personality. However, the defence will likely seek to persuade the jury that despite these character flaws, taken in the context of the evidence as a whole, it does not prove Mr Davis to be capable of the horrific violence alleged.

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