A JURY has been told that if they believe Elvis Lee intended to cause Wigan boy Tyler Whelan serious harm “on the spur of the moment”, then he would still be guilty of murder.
Mr Justice Nicol was summing up evidence in the trial of Lee and Stephanie Whelan at Cambridge Crown Court.
He told the jury of eight men and four women they must decide what Lee’s intention was at the moment he delivered the fatal kick to the five-year-old in Peterborough on March 7, 2011.
Lee, 34, of Crabtree, Paston, has pleaded guilty to the manslaughter of Beech Hill-born Tyler but denies murder and two counts of cruelty to a child.
Tyler’s Wigan 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.”
The judge also told the jury there were two elements to consider when discussing the charge that Whelan faces of causing or 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 causing 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 urged the jury to put emotions to one side when considering their verdict, adding: “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 this 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.”