-v- PROSECUTION SUBMISSIONS ON DISMISSAL AND ABUSE OF PROCESS

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1 IN THE CROWN COURT SITTING IN SOUTHWARK HHJ RIVLIN QC R -v- JONATHON TINKER (1) HENRY TODD (2) MICHAEL SMITH (3) ALPINE MOUNTAINEERING LIMITED (IN LIQUIDATION) (FORMERLY KNOWN AS OUT THERE TREKKING LIMITED) ( OTT )(4) PROSECUTION SUBMISSIONS ON DISMISSAL AND ABUSE OF PROCESS Note: Accompanying this skeleton argument is a document setting out the prosecution opening of the case for the purposes of dismissal as requested by the court at the last directions hearing. In addition there are two DVDs. These are a compilation of the video taken by David Rodney who was one of the expedition members. A timeline for ease of reference is attached as Annex 1 to the opening. It is respectfully suggested that the court begin by reading the opening and when coming to the section of the opening entitled Geography (at page 6) watch the DVD LJD2 Disc 1. When the court comes to the section entitled 2 nd Summit Attempt (at page 17) it should watch the second DVD namely LJD2 Disc 2. Dismissal Introduction 1 It is common ground that the appropriate test at this stage is that which an examining magistrate would carry out in committal proceedings. The correct legal approach 2 The charge is that of manslaughter by gross negligence. The leading case is Adomako [1995] 1 AC 171. The headnote reads: 1

2 ..in cases of manslaughter by criminal negligence involving a breach of duty the ordinary principles of the law of negligence applied to ascertain whether the defendant had been in breach of a duty of care towards the victim; that on the establishment of such breach of duty the next question was whether it caused the death of the victim, and if so, whether it should be characterised as gross negligence and therefore a crime; and that it was eminently a jury question to decide whether, having regard to the risk of death involved, the defendant's conduct was so bad in all the circumstances as to amount to a criminal act or omission 3 The prosecution sets out in its opening how each defendant breached the duty of care and how that breach can be properly characterised as grossly negligent, and accordingly is not repeated here. At this stage all defendants accept there was a duty of care owed to Michael Matthews. 4 It is necessary to put the prosecution response in relation to some of the factual assertions in the skeleton arguments of the defendants. These points only deal with matters not expressly dealt with in the opening but any omission should not be taken as acceptance. The issue of causation, the purported absence of which all the defendants rely upon is dealt with separately below. Tinker 5 At paragraph 26(i) of the relevant skeleton argument Tinker submits there was no reason for him to doubt the reliability of the LSE equipment. This is plainly wrong. There were manifest problems with the LSE equipment and Tinker and Kekus were constantly trying to sort it out. 6 At paragraph 28 Tinker submits that the modifications were made at Camp 2 and these were believed by him to be successful. This is contrary to the evidence. The modifications were made at Camps 2 and 4. No testing was done at Base Camp as Tinker thought this to be a waste of oxygen. It was clear at Camp 2 on 2 nd May 1999 that there were significant problems. Further, Tinker knew or ought to have known that there were unmodified 2

3 bottles at Camp 4 as the sherpas had already taken them there. He must therefore have known (whether by actual or constructive knowledge) that there would have to be further modifications at Camp 4 if there was to be another summit attempt. In fact further modifications were required as the evidence of Michael Smith in his Detailed Account shows. He states that at 2am on 13 May he had to modify the bottle of Chris Brown due to a malfunction. 7 The defence submission that the problem had been adequately dealt with and merely re-emerged at Camp 4 after Tinker s departure is without evidential foundation. Even if there was such evidence it is simply raises a triable issue. 8 If it was reasonable to allow modifications to be carried out high on the mountain, which it is submitted it was plainly not, his duty of care would extend to making sure each and every bottle and regulator was safe in all possible conditions on the mountain. 9 At paragraph 42 Tinker submits that he cannot be held personally responsible for the decisions and actions of others after his departure. This is not accepted. His duty as a director of OTT and expedition leader was to ensure that a safe system was put in place. It would be a different matter if such a safe system was put in place but disregarded after he left contrary to his orders. The evidence shows that there was no such system in place or at all. His duty as expedition leader was to abandon the attempt in the absence of such a safe system. There is clear prima facie evidence there was never such a safe system in place. Todd 10 It is beyond any sensible argument that any reasonable supplier of life supporting oxygen equipment for use in the ascent of Everest would breach his duty of care if he supplied faulty and/or potentially faulty equipment. To 3

4 do so knowingly merely compounds the negligence. This it is submitted is obvious and there is no need for an expert to say this as the defence submit. If such evidence were required such evidence is implicit from the evidence of John Barry. Causation 11 To prove causation the prosecution must show 1 : (1) the defendant s conduct did in fact result in the damage of which the prosecution complain; and (2) the damage is not in law too remote a consequence of the defendant s wrongdoing. 12 The first limb is known as factual causation (sometimes in cases by its latin definition of causa sine qua non) and the second limb is known as legal causation. 13 All that is needed to be proved is a material contribution to the damage. The prosecution do not need to prove that the defendant s breach of duty was the sole or even the main cause of his damage provided he can demonstrate that it made a material contribution to the damage. That means more than de minimis. See R v Cato 62 Cr App. R. 41 at Further it matters not if there are other subsequent negligent acts unless that novus actus interveniens can be regarded as the sole cause of the death of the victim. 15 In R v Cheshire 93 Cr App R 251; [1991] 1 WLR 844 the victim was shot in the legs. This gunshot wounds would not have caused his death. However, during his medical treatment for the gunshot wounds he developed respiratory problems. A week later owing to the respiratory problems he had to have a tracheotomy. Unfortunately he developed a reduction in his windpipe around the tracheotomy scar which went unnoticed by the medical 1 Clerk & Lindsell on Torts, nineteenth edition, 2006, page 44. 4

5 staff and his respiratory problems got worse. He died some weeks later in hospital because a small piece of mucus had blocked his restricted windpipe around the tracheotomy scar tissue. It was submitted by the defendant who was convicted of his murder that the shooting had not caused his death: Held, that in a case where negligent medical treatment of injuries inflicted by the accused is put forward by the defence as the cause of death rather than the injuries themselves, the jury should be directed that in order to find that the acts of the accused caused the death they need not find that those acts were the sole or even the main cause of death, provided that they made a significant contribution to it. Even where negligence was the immediate cause of death, only where it was so independent of the accused's acts and so potent a cause in itself as to make his contribution insignificant, could it exclude his responsibility, and that would only be in the most extraordinary and unusual case. Provided the jury were satisfied that the actions of the accused had contributed significantly to the death of the victim it was not for them to evaluate competing causes. 16 The defendant s conduct can be by act or omission. The factual causation can be very wide. Laws LJ described the difference between the two aspects of the rule of causation in Rahman v Arearose [2001] QB 351 at [32] in this way: [32]Once it is recognised that the first principle is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible, the metaphysics of causation can be kept in their proper place: of themselves they offered in any event no hope of a solution of the problems which confront the courts in this and other areas. The law has dug no deeper in the philosophical thickets of causation than to distinguish between a causa sine qua non and a causa causans. The latter is an empty tautology. The former proves everything, and therefore nothing: if A kills B by stabbing him, the birth of either of them 30 years before is as much a causa sine qua non of the death as is the wielding of the knife. So the law makes appeal to the notion of a proximate cause; but how proximate does it have to be? As a concept, it tells one nothing. [ 33] So in all these cases the real question is, what is the damage for which the defendant under consideration should be held responsible. The nature of his duty (here, the common law duty of care) is relevant; causation, certainly, will be relevant--but it will fall to be viewed, and in truth can only 5

6 be understood, in light of the answer to the question: from what kind of harm was it the defendant's duty to guard the claimant? That, if I may say so, is I think the insight of Lord Hoffmann's lecture to the Chancery Bar Association on 15 June 1999 on "Common Sense and Causing Loss". 17 The traditional approach is to pose the but for test. The authors of Clerk & Lindsell put it thus 2 : Would the damage of which the claimant complains have occurred but for the negligence (or other wrongdoing) of the defendant. 18 The case of Cheshire [ibid] is a good example of the but for test. But for the shooting the victim would not have gone to hospital and thereafter needed a tracheotomy. Without the tracheotomy there would have been no scar tissue and he would not have died from asphyxiation. 19 In Kuwait Airways [2002] 2 AC 883 at [74] Lord Nicholls said in discussing the but for test: This threshold "but for" test is based on the presence or absence of one particular type of causal connection: whether the wrongful conduct was a necessary condition of the occurrence of the harm or loss. In the Barnett case the hospital's negligence was not a necessary element in the conditions which led to the watchman's death. He would have died anyway. In very many cases this test operates satisfactorily, but it is not always a reliable guide. Academic writers have drawn attention to its limitations: see, for example, the late Professor Fleming's The Law of Torts, 9th ed (1998), pp , and Markesinis & Deacon, Tort Law, 4th ed (1999), pp Torts cover a wide field and may be committed in an infinite variety of situations. Even the sophisticated variants of the "but for" test cannot be expected to set out a formula whose mechanical application will provide infallible threshold guidance on causal connection for every tort in every circumstance. In particular, the "but for" test can be over-exclusionary. 74 This may occur where more than one wrongdoer is involved. The classic example is where two persons independently search for the source of a gas leak with the aid of lighted candles. According to the simple "but for" test, neither would be liable for damage caused by the resultant explosion. In this 2 Clerk & Lindsell on Torts, nineteenth edition, 2006, page 48 6

7 type of case, involving multiple wrongdoers, the court may treat wrongful conduct as having sufficient causal connection with the loss for the purpose of attracting responsibility even though the simple "but for" test is not satisfied. In so deciding the court is primarily making a value judgment on responsibility. In making this judgment the court will have regard to the purpose sought to be achieved by the relevant tort, as applied to the particular circumstances. In Kuwait [ibid] Lord Nicholls also said at [70]: The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause, or because the loss was the product of an intervening cause. The defendant's responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this. 71 In most cases, how far the responsibility of the defendant ought fairly to extend evokes an immediate intuitive response. This is informed common sense by another name. Usually, there is no difficulty in selecting, from the sequence of events leading to the plaintiff's loss, the happening which should be regarded as the cause of the loss for the purpose of allocating responsibility. In other cases, when the outcome of the second inquiry is not obvious, it is of crucial importance to identify the purpose of the relevant cause of action and the nature and scope of the defendant's obligation in the particular circumstances. What was the ambit of the defendant's duty? In respect of what risks or damage does the law seek to afford protection by means of the particular tort? 21 To set the limit to the causally connected events the law requires that the damage is not too remote a consequence of the defendant s wrongdoing. If danger to life or limb is foreseeable then it does not matter exactly how the damage to life or limb occurs provided that it fulfils the but for test. Similarly an injury will not be too remote if the injury is a foreseeable consequence of the breach of the duty of care. The case of Jolley v Sutton [2000] 1 WLR 1082 is instructive. In that case the defendant council left an abandoned boat on land they owned. The boat was rotten. It was accepted that it was foreseeable that children might be hurt if they played on the rotten planking. 7

8 A child jacked up the boat. The jack fell over and consequently the child was seriously injured. The judge held that it was foreseeable that children might be injured by meddling with the boat. The Court of Appeal held that the injury caused by the jack falling over was not foreseeable. The House of Lords reversed the Court of Appeal holding that unless the damage was different in kind the damage was not too remote. 22 It must be remembered that causation is a rule of law not a method of scientific analysis or deduction. 23 Applying those principles to the facts of the instant case. The prosecution allege five breaches of duty instant case: 1. duty to provide good organisation 2. duty to provide safe and working oxygen equipment 3. duty to call off the summit attempt 4. duty to stay in communication with the client 5. duty to recall faulty or potentially faulty oxygen equipment 24 The prosecution say that a reasonable jury properly directed could find that each was at least a material contributor to Michael Matthews falling from the mountain to his death. 25 Taking each in turn. 1. duty to provide good organisation 26 The prosecution say that a jury could find the lack of safety briefings, the lack of information re what to do in an emergency situation, the lack of sherpa support, the lack of an accompanying guide above Camp 4, the lack of a sweeper coming down the mountain and the lack of a radio all (individually and collectively) materially contributed to Michael Matthews falling from the mountain to his death. 8

9 2. duty to provide safe and working oxygen equipment 27 A failure to supply safe and working oxygen to a climber above 8000m will for the normal person inevitably result in hypoxia. The onset of hypoxia will inevitable cause fatigue and disorientation. A jury could easily find such a disorientated state was a material contribution to Michael Matthews falling off the mountain to his death. 28 The issue of fact is therefore whether there is evidence upon which a properly directed jury could find that Michael Matthews was not supplied with safe and working oxygen equipment. Once they find that then the finding of hypoxia inevitably follows and so does the finding of fatigue and disorientation; as to this see the medical evidence of Dr Milledge. 29 For the reasons set out in the opening note for dismissal it is submitted that a jury could find Michael Matthews was not supplied with safe and working oxygen equipment. 3. duty to call off the summit attempt 30 If the summit attempt had been called off Michael Matthews would not have been on the mountain or fallen to his death on 13 th May Therefore the negligent act of the failure to call off the summit attempt fulfils the but for test. It is submitted that this act is clearly foreseeable and proximate and is not therefore too remote from the actual loss caused. The issue for the jury is not whether this failure to act caused the death of Michael Matthews but rather whether a reasonable and competent guiding company/guide would have called off the summit attempt in the circumstances as they existed in May Then it becomes obvious that the breach was causative of death. 9

10 4. duty to stay in communication with the client 31 If Michael Smith had stayed in contact with Michael Matthews he would have been able to see identify and prevent whatever problem Michael Matthews faced; alternatively he could have sought advice and/or assistance. For example if the problem was an oxygen failure Michael Smith could have radioed for a sherpa to come up with a bottle or he could have affected repairs to Michael Matthews system. If Michael Matthews did not know which way to go on the approach to the Balcony (or any other location) Michael Smith could have shown him the route. Michael Smith could have dealt with any equipment problem encountered by Michael Matthews. Michael Smith could have helped with fatigue and/or disorientation. 32 In all the circumstances it is submitted a jury could find the abandonment of Michael Matthews by the professional guide to be a material contribution to him falling from the mountain to his death. 5. duty to recall faulty or potentially faulty oxygen equipment 33 If the LSE equipment had been recalled as being faulty or potentially faulty then the jury could safely assume no summit attempt would have been made as there would have been no or no sufficient oxygen available. No summit attempt by Michael Matthews would be possible without oxygen. If the summit attempt had been called off Michael Matthews would not have been on the mountain or fallen to his death on 13 th May Therefore this negligence fulfils the but for test and is clearly foreseeable and not too remote. 34 The prosecution submit that if the court finds causation in relation to item 1 above then causation is shown against OTT and Tinker. 10

11 35 If the court finds causation in relation to item 2 above then causation is shown against OTT, Tinker, Todd and Smith. 36 If the court finds causation in relation to item 3 above then causation is shown against OTT and Tinker. 37 If the court finds causation in relation to item 4 above then causation is shown against OTT and Smith 38 If the court finds causation in relation to item 5 above then causation is shown against Todd. 39 In the words of Laws LJ above it is clear that the death of Michael Matthews is exactly the type of damage for which the defendants, as a consequence of the various breaches of the accepted duties of care, should be held responsible. 40 The court is entitled, whilst obviously making its own decision, to take into account the fact that DJ Walker has already stated that in his judgment there is a prima facie case on manslaughter against all four defendants. He has said: The essential ingredients of the offence of manslaughter are: duty of care; a breach of that duty; causation; and death. I have to consider whether these allegations are such as to amount to gross negligence leading to a criminal conviction. I am confident that a duty of care was owed to the victim by all concerned. There is a clear prima facie case against the Company; OTT. Michael Matthews paid a large sum of money to OTT for participation on the expedition. There is a clear promise of the holding out of a duty of care; for example, in the training assistance and advice given by the company. There is a clear prima facie case against Jonathan Tinker. Jonathan Tinker was the Director of OTT and expedition leader. He was involved as proprietor of OTT and had personal control. He clearly held a duty of care 11

12 to Michael Matthews. The expedition was woefully inadequate in its advice and support. There is a clear prima facie case against Michael Smith. Michael Smith was a guide on Mount Everest who held a duty of support, guidance, protection and assistance. The evidence is as strong against Michael Smith as the other defendants, so I therefore disagree with Mr Lewis in the respect that the case was somewhat weaker against him. The evidence against Henry Todd is different, but similar. There is a clear prima facie case against Henry Todd, as strong as that against Jonathan Tinker and the company. Henry Todd had knowledge of the equipment used and knew that the oxygen was to assist an ascent to Everest. He was aware of the potential problems and significance of oxygen at altitude. Henry Todd had a duty of care and I am satisfied that there was evidence that he had breached that duty of care. It is not for the prosecution to show that a breach of care caused the victim s death in whole, it only has to be a partial cause. I have seen evidence in the papers of poor equipment on a number of occasions, for example, that the equipment was second-hand and in poor condition which was maintained to a poor standard. Heidi Lockwood supports this in her statement when she describes the occasion of meeting Mr Todd in a tent at Base Camp. Gesturing to a pile of equipment which had been returned from the OTT expedition, Henry Todd said, Well there s some stuff back there that came back from OTT. I don t know how good it is. You can chance it if you want to, but I am not going to. I have no doubt that this matter should be sent to the Crown Court for committal as the facts are a matter for the Jury and not for this court. If I had been sitting as an examining magistrate, I would have been asked simply to rule as to whether there was a prima facie case to answer, and I would have had no difficulty in deciding that there was. 41 It is also of note that DJ Walker did not have the benefit of seeing the more recent incriminating evidence that is now before this court. Abuse of process 42 The principles stated by the defendants as to abuse of process are generally accepted. It however important to note it is an exceptional remedy and should only be exercised with the greatest caution. The introductory words at 12

13 paragraph 4-58 in the current edition of Archbold correctly summarise the position. Todd 43 Todd submits the trial should be stayed under 2 grounds: (1) Delay; (2) Prosecution conduct. 44 Some criticism is made that this is a private prosecution. It is of note that Todd made submissions before DJ Walker that the prosecution was an abuse of process. Those submissions were rejected. Todd further made written submissions to the DPP inviting him to take over the prosecution on the grounds that there was no prima facie case and of alleged prosecutorial misconduct. That invitation was rejected. Delay 45 The recent authority of the Court of Appeal on exercising the jurisdiction where there has been an alleged delay is R v S [2006] EWCA 756. Rose LJ set out the principles at [21]: In the light of the authorities, the correct approach for a judge to whom an application for a stay for abuse of process on the ground of delay is made, is to bear in mind the following principles: (i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule; (ii) Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted; (iii) No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; (iv) When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge; (v) If, having considered all these factors, a judge's assessment is that a fair trial will be possible, a stay should not be granted. 13

14 46 The date cited by Todd of 3 rd September 2003 as the date he was officially alerted to the likelihood of criminal proceedings has little relevance. In early 2002 he was on notice of the civil proceedings, which raised substantially (exactly) the same factual issues and which he contests. Since then he has had the opportunity to preserve and muster his defence. No doubt he has done so. 47 It is clear beyond argument that whatever the delay Todd must show on evidence, not assertions, that he has suffered serious prejudice to his defence. This is not shown. 48 Ability of Todd to recall events. No evidence is given of any specific difficulty relevant to his defence in this case. The 1999 expedition involved the death of Michael Matthews. No evidence is provided as to the prejudicial effect of the delay between 13 May 1999 and early The jury can make all appropriate allowances following an appropriate direction from the court. 49 Physical evidence. Todd can himself give evidence that the cylinders that he supplied to OTT worked well and the jury can make appropriate allowances. Nothing he could have preserved would demonstrate that the valves were not prone to failure or that the LSE bottles did in fact properly fit the Poisk regulators. The assertion that he is prejudiced because he did not attempt to obtain Michael Matthews body/cylinder the next time he ascended Everest is wholly without foundation. The evidence is that he ascended on 16 th May 1999 to above Camp 4, and at that time he well knew that Michael Matthews was dead. Todd must give evidence on this point and be cross examined on a voire dire within the abuse hearing to maintain this point. Todd has failed to provide details of any person who did not have difficulty with his modified LSE cylinders. If such person does exist he or she can easily give evidence as to this issue. Climbing Everest is not a forgettable event in most people s lives. 14

15 50 Deceased witnesses. Goran Krop. The evidence of this witness can be given by Todd himself. Moreover, the same evidence can be given on Todd s assertion by all of Goran s staff, who also summitted with Goran, and who were allegedly happy with Todd s oxygen. They can therefore give this evidence. Details of the efforts to locate Renata Krop can be given to the jury so they can take into account any evidence she might have given. It follows there can be no serious prejudice by his death. 51 The evidence to be given by Ray Brown can no doubt be given by other members of the defendant s expedition. Todd himself can give this evidence and any difficulties explained to the jury. Prosecution conduct 52 At paragraph 6 of Todd s skeleton he asserts that there is no distance between the civil and criminal proceedings. He asserts they have the same partner, the same firm, and that the same junior has had conduct of both cases. As the evidence of Mark Spragg shows this is false and wholly misleading. Moreover it is not known why this false assertion has been made when Mark Spragg has previously explained the situation in correspondence. Even Todd s own timeline shows that the solicitors in the civil proceedings were Lee Crowder and then Cobetts. 53 The evidence of Mark Spragg shows that there is no material distinction between the way this prosecution has been conducted and that of a prosecution conducted by the CPS. In fact the defence have had the considerable advantage of a searchable electronic database of the unused material. This would not have been available had the CPS conducted the prosecution. 15

16 54 Use of the valves. The evidence of Mark Spragg explains that there was no intention to use material without the leave of the court. An application will now be made if necessary. Had the origin of those valves been known before an application similar to that made in respect of the LSE letter, dated 23 rd February 1988 such an application would have been made. In the absence of bad faith (which is expressly and quite properly not pursued) this point can only go to admissibility and is simply one of the matters to be taken into account in the courts discretion under any section 78 PACE application to exclude evidence. 55 Compromised witnesses. This agreement was signed well before any criminal proceedings were contemplated. If Doyle or Kekus are called by the defence as witnesses (they are not being called by the prosecution although the prosecution does seek to adduce contemporaneous statements from both via sections 114 and/or 117 of the CJA 2003) no doubt they will tell the truth. The agreement requires them to answer fully, frankly and honestly all questions put to them by David Matthews (clause 2.2.2). It is not understood how this compromises them as witnesses. 56 Many prosecution witnesses are given contractual arrangements by the Crown. Here they are not prosecution witnesses. They will not be paid to give evidence. Todd does not say that he wishes to call them as witnesses. If he does not they will play no part in the trial. To assert there is some form of corrupted evidence is offensive. The personal account of Kekus which will be relied upon if the court so permits was given voluntarily by Kekus prior to the civil proceedings and prior to the agreement. This point is wholly without merit. 16

17 Lack of impartiality in the prosecution 57 This point is comprehensively dealt with in the evidence of Mark Spragg. David Matthews has played no part in decision making process during the conduct of the prosecution. He was not involved in the decision of who should or should not be charged. That decision was left to counsel who determined the matter on a review of the evidence. David Matthews has not been consulted on procedural issues such as disclosure. Not only does the conduct of the prosecution in relation to disclosure, charging & presentation comply with all the relevant procedural and ethical rules, it does for all relevant purposes mirror that of a public prosecution. Further, the prosecution has the benefit of the absence of constraint due to budgetary limits. 58 No member of the prosecution team was party to the decision to enter into the agreements with Kekus and Doyle. Prosecution counsel have advised that the agreements entered into by the parties with the advice of independent civil solicitors and counsel were such that it would be unfair to charge Kekus and/or Doyle even if there was sufficient evidence against them to merit such a charge. Smith 59 Smith requested the DPP to consider the evidence in this case and take over the proceedings. The DPP refused to do so. 60 The statements from the sherpas are not relied upon by the prosecution. These statements were used against the estate of Michael Matthews in the civil proceedings by Todd. 17

18 61 The detailed statements of Kekus and Doyle which are in signed form and were prepared for the civil proceedings are not relied upon by the prosecution. There is no intention to adduce the statements that they put forward in the civil proceedings. Prosecuting counsel have taken care only to adduce evidence from Kekus and Doyle from material that is unconnected with the civil proceedings and which in any event pre-dates the civil proceedings. 62 There is nothing to stop the defence calling either Kekus or Doyle as a witness. In fact there is little if any material difference between the civil witness statement and the personal account given earlier by both individuals. However, as can be seen Kekus exhibits a tendency to assist the defence. 63 Dealing with the points in paragraph 7 seriatim: (a) (b) (c) (d) It is not understood what is wrong in the prosecutor seeking evidence to determine what may have been the significant cause(s) of Michael Matthews death. If it be suggested the prosecutor has been selective then as long as there is a prima facie case for the defendant to answer then it is nothing to the point. Obtaining cogent evidence from the witnesses of primary fact is a matter that should be applauded (unless of course you are the defendant). It is wholly wrong, inaccurate and therefore misleading to assert that the prosecution have contracted the two most important witnesses to silence. Pursuing the truth from witnesses is again to be applauded, but where they are not to be called by the prosecution there cannot be an abuse of process. Simply because the defendants do not 18

19 (e) (f) (g) (h) (i) like what an eye witnesses has said does not amount to abusive behaviour by the prosecutor. There is no duty to show all (or indeed any) material to the DPP. The DPP requested the evidence we relied on before DJ Walker. This was provided to him. The DPP has not seen the recent and more cogent evidence against the defendants. There is nothing to stop Smith making further representations to the DPP other than he knows such representations would be destined to fail. Moreover, the DPP is not responsible for supervising the criminal process. That is the domain of the courts. In an adversarial system each party adopts a selective approach. However, the prosecution will and have disclosed all material to the defence notwithstanding no defence case statements have been served. The Nepali witnesses were approached by Todd, they are his witnesses and the prosecution has never taken any statements from them. The police were not interested in investigating this matter in Nepal. This assertion cannot withstand the finding of a prima facie case against him. 64 In all the circumstances the applications for stays should be rejected. James Lewis QC Alastair Young 05 July