Judge sums up the case in Tyler trial

The Peterborough Evening Telegraph - - Uk&world Update - By STEPHEN BRIGGS stephen.briggs@pe­ter­bor­oughto­day.co.uk @Et­stephenb

A JURY has been told that if they be­lieve Elvis Lee in­tended to cause Tyler Whe­lan se­ri­ous harm “on the spur of the mo­ment”, then he would still be guilty of mur­der.

Mr Jus­tice Nicol started his sum­ming up of the ev­i­dence of the trial of Elvis Lee and Stephanie Whe­lan at Cam­bridge Crown Court yes­ter­day.

He told the jury of eight men and four women that they had to de­cide what Elvis Lee’s in­ten­tion was at the mo­ment he de­liv­ered the fa­tal kick to five-year-old Tyler on March 7 last year.

Lee (34), of Crab­tree, Pas­ton, has pleaded guilty to the man­slaugh­ter of Tyler but de­nies mur­der and two counts of cru­elty to a child.

Tyler’s mum, Stephanie Whe­lan (27), who lived at Sheep­walk, Pas­ton, at the time of the in­ci­dent, de­nies caus­ing or al­low­ing the death of a child and two counts of cru­elty to a child.

Mr Jus­tice Nicol said: “Elvis Lee de­nies there was an in­ten­tion to kill or cause se­ri­ous harm in this case.

“You will be con­cerned with the in­ten­tion when he kicked Tyler.

“It is im­ma­te­rial if his in­ten­tion was formed on the spur of the mo­ment or he re­gret­ted his ac­tions af­ter­wards.”

Mr Jus­tice Nicol also told the jury that there were two el­e­ments to con­sider when they were dis­cussing the charge that Whe­lan faces of caus­ing or al­low­ing the death of a child.

With re­gards to al­low­ing the death of a child, he said: “The pros­e­cu­tion must show that at the time of death there was a sig­nif­i­cant risk of re­ally se­ri­ous harm be­ing caused to Tyler Whe­lan.

“The pros­e­cu­tion say there was a risk as Elvis Lee had anger man­age­ment prob­lems and he had kicked Stephanie Whe­lan in the head in the past.

“But Stephanie Whe­lan says Elvis Lee had never raised a fin­ger to a child and there was no risk he would cause any harm to Tyler, let alone re­ally se­ri­ous harm. If you agree with her, you will ac­quit her of this charge.”

When ad­dress­ing the “caus­ing” el­e­ment of the charge, he said: “Par­lia­ment has said that un­law­ful omis­sion to get med­i­cal help is in­cluded in this el­e­ment.

“By the time Tyler reached hospi­tal he was dead, or nearly dead. The omis­sion to take him to hospi­tal ear­lier could be un­law­ful if it was ei­ther her de­lib­er­ately not get­ting treat­ment, or she didn’t care if Tyler got treat­ment.

“She says she first re­alised he was ill when she saw his ab­domen and in­stantly started to get him to hospi­tal. The pros­e­cu­tion say that this is not cred­i­ble.”

Mr Jus­tice Nicol also told the jury they could take into ac­count Whe­lan’s good char­ac­ter in their de­lib­er­a­tions.

He said: “Stephanie Whe­lan has no con­vic­tions or cau­tions. This is not a de­fence but it is rel­e­vant. Her good char­ac­ter is a pos­i­tive fea­ture as to whether you ac­cept what she told you.”

The jury were also told that they could take into ac­count the as­sault that took place in Jan­uary 2011 when Lee kicked Whe­lan in the face dur­ing the course of a do­mes­tic row.

Mr Jus­tice Nicol said: “You have heard about the as­sault in Jan­uary and the fact that Elvis Lee was on an anger man­age­ment course. This is rel­e­vant when con­sid­er­ing count two, the charge of caus- ing or al­low­ing the death of a child faced by Whe­lan.

“Elvis Lee has ad­mit­ted the kick against Tyler and the is­sue is the in­ten­tion at the time of the kick. This past as­sault and anger man­age­ment is­sues may help you de­cide that is­sue.”

The judge also re­minded the jury of the im­por­tance of putting their emo­tions to one side when con­sid­er­ing their ver­dict.

He said: “It is your view and your view alone that mat­ters in this case.

“It is for the pros­e­cu­tion to prove all of the el­e­ments of the charges they bring. The de­fen­dants have to prove noth­ing.”

He warned about the rel­e­vance of lies the de­fen­dants may have told. He said: “The pros­e­cu­tion al­lege both de­fen­dants have told lies. The first ques­tion you have to de­cide is if they did tell a lie.

“Elvis Lee has ad­mit­ted he lied in his state­ment he gave to po­lice when he was ar­rested. He said ‘I didn’t as­sault Tyler in any way’. You know he bit him and kicked him.

“Stephanie Whe­lan said when she re­turned from school Tyler was hav­ing break­fast. The pros­e­cu­tion say his can­not be the case.

“These are only lies if they are un­true, or they be­lieved them to be un­true at the time. If a lie is ad­mit­ted or proved it may make you more cau­tious about be­liev­ing other things they said.

“But there may be rea­sons for ly­ing. Elvis Lee said he lied to po­lice as he was em­bar­rassed by what he had done, and was wor­ried he would not be able to see his chil­dren again.

“A lie also can­not prove an of­fence has been com­mit­ted.”

The trial con­tin­ues.

trial: The jury has been given guid­ance by the judge in re­la­tion to the death of Tyler Whe­lan and the trial of Elvis Lee and Stephanie Whe­lan, pic­tured.

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