R v Vincent Tabak [2011] Case number T20117031 The murder case


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R v Vincent Tabak [2011] Case number T20117031

The murder case
Joanna Yeates was a 25 year old woman who was murdered on 15 December 2010. Her body was discovered on 26 December 2010 and on 23 January, her next door neighbour Dr Vincent Tabak, a highly qualified Dutch architect/engineer working in Bristol, United Kingdom, was arrested and charged with her murder. Court 1 was the place of at Bristol Crown Court, Small Street, Bristol.

The trial began on Monday 10 October 2011.

The Court
Bristol Crown Court is a modern, busy court.
The Crown Court is the correct jurisdiction for a murder trial. The status, jurisdiction and manning of the Crown Court is governed by the Constitutional Reform Act 2005, section 59(5), and Schedule 11, paragraphs 1 and 26, and by certain sections of the Criminal Procedure Rules 2005. See the Statutory Instrument 2005 Number 384.
Violent crime
Vulnerability to violent crime victimisation varies across the age spectrum. The victimisation rate increases through the teenage years, crests at around age 20, and steadily decreases through the remaining years. This pattern, with some exceptions, exists across all race, sex, and ethnic groups. See C.S. Perkins, ‘The vulnerability of victims of serious violent crimes’, NCJ, Issue 163021, July 1997.
The city of Bristol in England, United Kingdom

Bristol is a city in the region of Avon. It is an area of England with much crime. As for sexual related crimes, the following illustrate the problem that Bristol has with sex crimes. On Saturday 1 October 2011, a serious sex assault took place in Bristol between 9.15 pm and 10.30 pm when a woman dressed in ‘fancy dress’ became separated from a group of friends as they entered a nightclub in Park Street. She then was befriended by a man who led her into an alleyway and subjected her to a serious sexual assault. Police described the suspect as a ‘stocky, broad shouldered, clean-shaven, six foot, and fair- haired, white male, aged in his thirties, with short hair, who was wearing a black bomber jacket and black jeans and who spoke with a local accent’. This sex assault had occurred in a very busy part of Bristol. On 18 th September 2011, police released news of a another sex assault which occurred in an underpass near the Young Men’s Christian Association (YMCA) building in Lawrence Hill in Bristol on 18 th September, 2010. The suspect was described by police as ‘male, black, bald, skinny, about 5ft 7in tall, has bad teeth and a strong African accent’.

A different class of victim: Joanna Yeates, Landscape Designer
Joanna Yeates was a 25 year old woman who was murdered on 17 December 2010.

Dr Vincent Tabak, a highly qualified Dutch architect/engineer, working in Bath, near Bristol, at the international architectural consultants Buro Harrap Ltd, was the second person who was arrested on suspicion of Joanna Yeates’ murder. Police charged Dr Tabak on 23 January 2011 with the murder of Joanna Yeates. This was five weeks after the victim had been found dead by a roadside, some two miles from her rented accommodation in Bristol, UK.

The landlord Chris Jeffries was arrested on suspicion of murder
At first the Bristol police arrested the landlord Chris Jeffries, (partly because Vincent Tabak and Tanja Morson reported to the police that they saw Chris Jefferies spying through windows and letting himself in with his own keys to Apartment 1 where Yeates and Reardon lived). Then later, police arrested and charged Vincent Tabak, who lived with cohabitee Tanja Morson in the apartment next door to Joanna Yeates.

This particular murder trial aroused intensive interest and the English newspapers wrote about this murder from the day that Joanna Yeates was reported as a missing person to the days after Vincent Tabak was convicted of her murder.

In this murder trial, the majority of the prosecution evidence, apart from the post-mortem, was circumstantial and the only real evidence was the post mortem result and

the oral evidence out of the mouth of the defendant himself, who seemed in an automated state and psychiatrically distressed state, in the author’s opinion, totally ignored by his defence barrister, William Clegg, QC; by the judge, Justice Field, whilst the prosecuting counsel, Nigel Lickley, QC rudely and crudely, verbally and psychologically badgered the defendant for hours and hours in the witness box.

The Defence counsel, William Clegg, QC, had earlier pleaded with the judge, Justice Field, to accept the plea of ‘manslaughter’ but Justice Field was adamant that the charge of ‘murder’ must remain.
It is to be noted that this point cannot be raised as a ‘point of law’ for appeal because in R v Archer [2011] EWCA Crim 2252, it was held that the judge had not erred in rejecting a submission of ‘no case to answer’ where there was ‘sufficient evidence’ for a jury to convict a defendant. In this particular case, a 22 year old man, appealed his conviction for kidnapping. The appellant had admitted in his evidence that he had lied in his police interview , but he maintained that there had been no discussion or planning in relation to the robbery on the victim, and that he was not involved in any way with it.
Vincent Tabak, at trial, also maintained that he had no planned to meet with Joanna Yeates that fateful evening when she died. He insisted that Joanna Yeates had invited him into her apartment and that he was forced to put his hand over her mouth to stop her from screaming, thus suffocating her.

He explained that all he had done was to attempt to kiss her in her kitchen where they stood chatting for over ten minutes before he moved to kiss her and she screamed.

Justice Field, the trial judge in R v Vincent Tabak [2011] refused during the voir dire to allow a plea of manslaughter and insisted that the charge of murder must stay.

However, in R v Archer [2011], paragraph 11 of the Court of Appeal’s decision, stated:

The appellant …then gave evidence in line with the defence cases we have already summarised. The appellant admitted in his evidence that he had lied in his police interview but he maintained that there had been no discussion or planning in relation to the ….. It seems that in the course of his evidence he sought to give the impression that he did not usually behave in the way alleged, which led to the admission into evidence of the fact that he had previous convictions….’

The point here is that like the Appellant in R v Archer [2011], Vincent Tabak had admitted telling lies during the police interview, but unlike the Appellant in R v Archer [2011], in the course of his evidence, he sought to give the impression that he did not usually behave in the way alleged. Vincent Tabak was correct in giving that impression.
No previous criminal convictions whatsoever
Indeed, he had no previous convictions for sex offences or for any other criminal offences and in fact was a virgin when he met his then partner Miss Morston. The judge cannot be said to have correctly directed the jury in their conviction of Dr Vincent Tabak for murder, because the trial judge, had been told beforehand by police officers, that a prostitute in Los Angeles had telephoned the Avon and Somerset police to identify Vincent Tabak as her one-time client for prostitution in Los Angeles and requested ‘strangulation sex’. This self-confessed prostitute had neither been sworn in to give witness nor had she been cross-examined, yet the trial judge had decided without a trial that she was telling the truth.

But whilst in R v Archer [2011] was an application for leave to appeal, in fact, Vincent Tabak, should apply thus, but no legal counsel has put this appeal forward. The essential elements in a murder conviction are as follows:

In R v Tabak, this ‘sufficient evidence’ came in the form of Vincent Tabak’s self-confession.

Murder in English law

In English law, it is unlawful to kill a person unless in circumstances where reasonable force was used in self-defence or by misadventure. Murder is unlawful homicide ‘with malice aforethought’, i.e. if the defendant intended to kill that person or intended to cause grievous bodily harm to that person. Murder carries a mandatory sentence of imprisonment for life and murder is triable only on indictment, hence Dr Tabak’s trial by jury in October 2011. Any sentence that Dr Tabak received must take account of time already spent in custody on remand, awaiting trial. See the caselaw report of R v McKenzie [2011] All ER (d) 143 (Sept).

Murder (Abolition of Death Penalty) Act 1965
With the numerous miscarriages of justice in present day English courts, it is a very good thing that capital punishment has been abolished by the statute Murder (Abolition of Death Penalty) Act 1965, the same statute that imposed a life sentence for murder. This statute, and Article 1 of the Thirteenth Protocol to the 1950 European Convention on Human Rights, continues to prohibit any consideration of the re-introduction of the death penalty. A mandatory life sentence means that the sentence of imprisonment is not for a fixed period at the outset. However, the trial judge, if a defendant is convicted of the offence of murder, can specify a minimum term to be served and the Home Secretary must release the offender on licence, once the stipulated period of sentence has been served.

The defendant

The accused, Vincent Tabak is a 33 year-old professional man – who holds a doctorate university degree in software programming for architecture and engineering. He is specialist in people flow engineering. He denied the premeditated killing of Miss Yeates, whose body was found by dog walkers on a snowy verge on Christmas morning.

Dr Vincent Tabak was a recent neighbour of Miss Yeates and her boyfriend Greg Reardon, both employees in an architects’s firm in Bristol. Dr Tabak and his girlfriend Miss Morston, a qualified analyst, had been living at Apartment 2 of the detached house, 44 Canynge Road, Bristol, whilst Miss Yeates and Mr Reardon had only recently moved into the next door Apartment 1 in November 2010, whilst Dr Tabak was working in Los Angeles. So Dr Tabak did not know them. Dr Tabak returned to the United Kingdom on 11 th December 2010. Miss Yeates had taken a few days off at the same time, having had a cold and had returned to work on 14 December 2010.

The victim’s partner
Miss Yeates’ partner, Greg Reardon, had decided to visit his half-brother in Sheffield on the weekend beginning Friday 17 th December 2010. Miss Yeates, as was her usual routine every Friday evening after she finished work, went to The Bristol Ram, a public house near her place of work, in order to socialise and have some drinks with people she knew. Having imbibed in several alcoholic drinks there, she decided at 8 pm to go home and proceeded to walk home, stopping at one shop to buy two bottles of cider and at another shop to buy one ready-prepared and uncooked pizza.

Victim’s partner was away for the weekend
At 5 pm on Friday 17 th December 2010, Joanna Yeates’ partner, Greg Reardon, had travelled to Sheffield (using Yeates’ car) to visit his half- brother. He is alleged to have returned home to Apartment 1 on Sunday, 19 th December in the evening at 8 pm. As Miss Yeates was not at home he waited, finished off a half-empty bottle of cider he saw in the kitchen and cooked a pizza from their freezer.
Missing person report made early Monday 20 December 2010
When she did not arrive back at their apartment at midnight, he telephoned the police to report her as a missing person. He did this at 1.00 am on Monday morning, 20 th December 2010. Before he telephoned the police to report Miss Yeates as a ‘missing person’, he had telephoned his own mother and also Miss Yeates’ mother. Miss Yeates’ parents lived in Ampfield in the county of Hampshire, England, and they travelled to Bristol immediately.
Dr Tabak’s movements

Dr Vincent Tabak returned to the United Kingdom from Los Angeles in the United States, on Tuesday 14 th December 2010. He returned to his usual work routine the following day, riding on his bicycle from Apartment 2 to the Bristol Temple Meads train station where he travelled by train to his place of work in Bath.

Dr Tabak was charged by police with the murder of Joanna Yeates on that Friday evening after she returned from the public house and whilst his own girlfriend Miss Marston was attending the annual pre-Christmas party held, at the employer’s invitation for all employees of the company she worked for. Dr Tabak’s girlfriend had travelled to the Christmas party by coach, arranged for the staff by her employers and Dr Tabak had planned to collect his live-in partner, Miss Marston, from the Bristol coach station on its return after the party was over.
Miss Marston owned a grey car which they both used, in a similar way that Greg Reardon and Joanna Yeates used her car. Dr Tabak is alleged to have killed Miss Yeates whilst his girlfriend was at her employer’s party; to have gone shopping in an Asda supermarket at about 11.30 pm that evening, having driven around Bristol to look for a suitable place to deposit Miss Yeates’ body and having found one, did the deed before collecting his live-in partner from the coach station after midnight, stopping off briefly to buy them both cooked beef-burgers, which they ate on their way home in the car. This is what the Prosecuting Counsel told the Court on the first day of the murder trial, Monday 10 th October, 2011.
The jury

Six men and six women were selected after a three-day process to pick the jurors for the murder trial at Bristol Crown Court. The jury was sworn-in on 7 th October, 2011. The court clerk told the jury that Vincent Tabak was charged with murdering Joanna Yeates between 16 th and 19 th December 2010. The court clerk informed the jury that the defendant had pleaded ‘not guilty’ and that it was the jury's job to decide whether Dr Tabak was guilty or not. The judge warned the jurors to avoid reading any background material and not to speak to anyone about the case, bearing in mind that this murder was in most of the British newspapers and television channels from 17 th December 2010 for the next six weeks until Dr Tabak was arrested and charged.

Jury visiting protocol
After the prosecutor had summed up his case against Dr Tabak by mid-morning on Tuesday 12 th October 2011, the rest of the day was taken up with agreeing a jury visiting protocol. There is no general jury visiting protocol in the United Kingdom but in cases such as this, a protocol must be agreed between the judge, the prosecuting counsel and the defence counsel.

The judge and jury visit

On Wednesday, 13 th October 2011, His Honour Justice Field; the jury; and a selection of journalists; visited the crime scenes, accompanied by police officers.

The judge and the jury visited the apartment where Joanna Yeates. The six-man, six-woman jury was taken from Bristol Crown Court to key locations in the case. The jury retraced the route she took that evening, up Park Street and past the Bristol Ram public house, where she had met work colleagues and had had a few drinks with them The judge and the jury also visited the Waitrose grocery shop Miss Yeates had visited, as well as the Tesco Express grocery shop where she bought a pizza on her way home on Friday evening 17 December 2010. The visit also took in Apartment 2, 44 Canynge Road, the place where Dr Tabak and his girlfriend lived and the property of 53 Canynge Road, where a party was held on the night of 17 December; they also visited Percival Court, adjacent to the rear of Miss Yeates's apartment because witnesses claimed to have heard screams that night- one witness standing at 53 Canynge Road and the other from Percival Court opposite the property of 44 Canynge Road. The party also visited the place where Miss Yeates’ body was found at Longwood Lane in Failand, North Somerset. Whilst Justice Field travelled in an unmarked police car, the jury travelled in a secure coach with blacked-out windows- to hide the identification of the jury.

Press reporters chosen to accompany the party of judge, police and jury, reported that the apartment where Miss Yeates lived has not been tampered with, everything remaining as it was on that night of 17 December 2010. During the visiting protocol discussion, defence counsel William Clegg QC, requested that the jury take note of how many minutes it takes to walk from the Hophouse pub in Clifton, The Bristol Ram, to 44 Canynge Road where Miss Yeates lived. Defence counsel had requested that the jury take a particularly close look at the view from Miss Yeates's kitchen window, which looks on to the path to the front door because Dr Tabak had made a statement that Miss Yeates and Dr Tabak first saw each other through this window. Defence counsel also asked the jury to walk from 44 Canynge Road to the front door of number 53 in order to ascertain whether in the jury’s judgment they thought it possible that a scream that was made inside the apartment of number 44 could possibly be heard if you are standing outside number 53 Cangyne Street, Bristol. Following the site visits, the jurors were sent home for the day and trial continued in Court 1, Bristol Crown Court, the following day 14 October 2010. Defence counsel had requested that the jury take a particularly close look at the view from Miss Yeates's kitchen window, which looks on to the path to the front door because Dr Tabak had made a statement that Miss Yeates and Dr Tabak first saw each other through this window. Defence counsel also asked the jury to walk from 44 Canynge Road to the front door of number 53 in order to ascertain whether in the jury’s judgment they thought it possible that a scream that was made inside the apartment of number 44 could possibly be heard if you are standing outside number 53 Cangyne Street, Bristol. Following the site visits, the jurors were sent home for the day and trial continued in Court 1, Bristol Crown Court, the following day14 October 2010.

The judge
The trial judge was Mr Justice Field.
The Defendant, Dr Vincent Tabak
The accused, Vincent Tabak, aged 33 had denied the premeditated killing of Miss Yeates, whose body was found by dog walkers on a snowy verge on Christmas morning, 25 December, 2009. The prosecuting counsel claimed that Dr Tabak, who lived in a ground-floor apartment adjoining Miss Yeates's home in Clifton, Bristol, was alleged to have murdered the 25-year-old after she went for festive drinks with colleagues on Friday 15 December 2010, after work. Her partner had gone to Leicester for the weekend to visit his brother because Miss Yeates and Mr Reardon had planned to spend the Christmas holidays with Miss Yeates’ parents. Vincent Tabak, 33, denies the premeditated killing of Miss Yeates, whose body was found on a snowy verge on Christmas morning.
Salient points in this trial

Neighbours at a party said that they had heard screams on the night of Yeates’ death.

A priest is alleged to be the last person to see Yeates alive.

A plate of chips at lunchtime was her last meal Dr Tabak, prosecuting counsel told the court, had accused the forensic science service of forgery and corruption. The prosecuting counsel further alleged that Tabak had searched the internet for information about murder and manslaughter sentences.

At some point that evening Vincent Tabak moved Joanna Yeates' dead body, put her in the boot of his car and drove it to Longwood Lane, claimed Mr Lickley, QC. A forensic examination of the scene where her body was found located Miss Yeates' blood on a wall of a neighbouring quarry - meaning Tabak may have tried to lift her corpse over the wall, claimed prosecuting counsel Nigel Lickley, QC and continued to tell his story of the case by saying that in the days after killing the blonde landscape architect, Tabak attended parties and dinners as he coolly maintained the pretence of a worried neighbour, the prosecution claims. Mr Lickley told jurors that witnesses would give evidence describing the defendant's demeanour after Jo disappeared and before he was arrested. He said:

Some will describe their meetings and conversations with him over the following days. Some talk of his normality, some the pressures and strains he was displaying. He was seen by the police on a number of occasions and his behaviour is important. When alone at work or at home his internet activity became ever more consumed, following news items as if almost following the police investigation as it unfolded….’

Differences of Documentary and Real Evidence

In general, the construction of documents is a matter for the jury (see R. v. Adams, The Times, January 28, 1999) except documents which are binding agreements between parties and all forms of legislation ( see R v Spens,93 Cr. App. R. 194, CA).

The effective definition of hearsay is in section 114(1) of the UK Criminal Justice Act 2003:
A statement not made in oral evidence in the proceedings’.
Therefore any statement in a document will be hearsay and inadmissible if the purpose for which it is sought to tender it in evidence is to rely on the truth of the statement, unless the document can be brought within one of paragraphs (a) to (d) of subsection 1 of section 114 Criminal Justice Act 2003.

Whether public documents or private documents are being considered, two issues arise:

(a) How may the document be proved? This includes questions such as whether a copy will suffice, whether parol evidence of the contents may be given and how to prove the execution of a private document.

(b) Once the document has been proved or secondary evidence of its contents given, what use may be made of the contents? It is only in relation to the second question that the issue of hearsay arises. If objection is successfully taken to the admissibility of a document on the ground of hearsay, then, of course, it will not be put in evidence at all.

Questions of hearsay usually arise in the context of private documents. Public documents can be regarded as constituting in themselves an exception to the hearsay rule. (See Sturla v. Freccia (1880) 5 App. Cas. 623, HL; Irish Society v Bishop of Derry (1846) 12 Cl. & F. 641; Wilton & Co .v Phillips (1903) 19 T.L.R. 390).
The exception is expressly preserved by the Criminal Justice Act 2003, s.118 (1).

The common law is supplemented by a mass of legislation making specific provision for the admissibility in evidence of particular categories of document, or of copies thereof. Many statutes also make specific provision as to the use which may be made of the documents in question.

It is in the case of private documents that the purpose for which the documents are being tendered has to be identified. Often, the documents are being put in evidence for a reason which has nothing to do with the hearsay rule. Correspondence with the defendant is an obvious example: see R. v Rouse[1957] Crim. L. R. 112, CCA. A letter written by the witness to the defendant may be exhibited by the witness.

Its significance is that it is what was said to the defendant. The letter may contain assertions of fact. Putting it in evidence does not make it evidence of the truth of those assertions. That is hearsay. If the matter is within the knowledge of the witness he may, of course, give direct evidence thereof. This assumes that the document in question can be properly proved and that there is no other reason for its exclusion. Examples would be that the letter contained assertions of fact prejudicial to the accused which could not be supported by other admissible evidence or that it contained prejudicial and irrelevant material, such as the author's knowledge of the accused's previous convictions. In either case, editing might solve the problem. These are matters for the discretion of the judge: they have nothing to do with the principle of hearsay.

Apart from cases such as correspondence, where it is the fact of the document's existence and what was done with it, or what happened to it, that is relevant and which do not constitute an exception to the hearsay rule because they are not being put in to prove the truth of their contents, there is another class of document where no question of hearsay arises. This comprises documents which constitute ‘real’ evidence. The principal statutory exceptions to the hearsay rule in relation to private documents are the Bankers' Books Evidence Act 1879 and the Criminal Justice Act 2003.
The presence of a document at a particular location together with the word or words upon it may often be of evidential significance. The judge said in R. v. Romeo [1982] 30 S.A.S.R. 243:
Sometimes it is possible to avoid] the hearsay rule by showing that a statement made in a document is being used as an original and independent fact for instance, that a person who made use of the document had certain information in his possession at a relevant time - and not as evidence of the facts stated. It is always important therefore, whenever an objection is taken on hearsay grounds, to ascertain for precisely what purpose the evidence is being tendered. It may be hearsay for one purpose and not, and therefore admissible, for another’.

In order to put a document in evidence as ‘real evidence’ a sufficient foundation must be laid to link the defendant to the document. It is only relevant if he were the author of the document or was in possession of the printed contents of the webpage or was in some way connecteds to the website document viewed by millions of people. There must be prima facie evidence that he was in some other way connected with it. See cases of Howey v Bradley [1970] Crim.L.R. 223, DC; R v Horne [1992] Crim.L.R. 304 and R v Podmore, 22 Cr. App. R. 36, CCA.

Where the prosecution are in possession of a potentially incriminating document, the provenance of which they can prove but the contents of which they cannot prove against the defendant as part of their case, the document can still be used.
The appropriate procedure is for the finding of the document to be proved as part of the prosecution case with no reference to the contents (so as to give notice to the defence of the use which might eventually be made of the document).

But website pages cannot be proved unless the prosecution can also within the case bring witnesses who wrote the pages in order to prove their reliability. there are millions of rubbish pages on the internet.

If the defendant gives evidence, he may be asked if he was aware of the document and of its contents; if he answers in the affirmative, he may be asked about the meaning thereof as in R v Gillespie and Simpson, 51 Cr.App.R. 172, CA; R v Cooper (W.J.),82 Cr.App.R. 74, CA (letter signed in the name of the defendant and his wife, but in the handwriting of his wife only); R. v Cross,91 Cr.App.R. 115, CA (note of a telephone call between the defendant and another, made by the other).

As Dr Tabak is not a lawyer he cannot give legal scholarly explanations as to the nuances of the words contained in the law.

Absence of an entry in a particular record

Where it is the absence of an entry in a particular record that is relied on, the record itself may be regarded as ‘real evidence’ .

To have any evidential value, however, it will have to be properly produced by a person responsible for maintaining it who can explain the significance of the entries and omissions: see R v Patel, 73 Cr.App.R. 117, CA (for the purpose of proving that a named man is an illegal immigrant it is insufficient for an immigration officer to state that he has examined the Home Office records; it is necessary for an officer responsible for the compilation and custody of the records to testify as to the method of compilation and as to it being such that if the man's name is not there, he is an illegal immigrant).

See also R v Shone, 76 Cr.App.R. 72, CA.

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