England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Friday 28th September 2001

1. LORD JUSTICE KENNEDY: On 26th July 2000 in the Crown Court at Lincoln this appellant was convicted of murder and sentenced to life imprisonment. He now appeals against conviction by leave of the single judge.
2. The deceased was Joanne Noble who was 21 years of age and with whom the appellant had been living for some time. By him she had had a daughter Daisy who in August 1999 was just one year old. Joanne Noble was last seen alive by anyone other than the appellant in the early hours of Sunday 8th August 1999 when she was taken to their home at 26 Keddington Avenue, Lincoln, after a violent incident in the street which involved the appellant. It was the appellant's case that later that morning he returned home and there was a further struggle at the end of which Joanne was unconscious. He did not then think that she was in difficulty but later found that she was dead. He did not seek any help, nor did he conceal her body and in a badly decomposed state that body was found by a neighbour in the bedroom at Keddington Avenue over a week later on Tuesday 17th August. The appellant was arrested two days later on 19th August.
3. This appeal is concerned with how the judge directed the jury in relation to the lies told by the appellant, in relation to provocation and in relation to the medical evidence as to the cause of death. It is not therefore necessary for us to deal with the facts in the same detail as they are dealt with in the judge's summing-up. Nevertheless the chronology must be set out so as to show where the lies fit in.
4. There was evidence to show that arguments between the appellant and Joanne were not uncommon prior to August 1999. About a month earlier her uncle, John Noble, said that the appellant had told him that he thought she was seeing someone else and if so he would kill her. In evidence the appellant disputed that threat; he said that he had only threatened to "drop her like a sack of shit".
5. On Saturday 7th August 1999 Joanne planned to go out with her friends Nicola Bolton and Charelle Smith so her stepmother, Pat Noble, was asked to look after the baby and did so. When the other two girls arrived at Keddington Avenue the appellant and Joanne were arguing. In evidence he said that was only about whether they would hold the taxi for him, which they did not. The girls visited some public houses and then they met up with the appellant some time after 11 pm in the queue for a nightclub. He says that was by arrangement. The girls suggested it was accidental. But it does not matter. The evidence was that the appellant and Joanne were at that stage pleased to see each other. Later on, somewhere about midnight, there was evidence that he wanted to go to another nightclub. He says in his evidence that there had been some trouble in the nightclub at which they were, but again it does not matter.
6. Suffice it to say that there came a time, about 2.30 am, when the appellant and Joanne were both in the street making their way home and patently all was not well between them. One witness, John Fenwick, was in his car. He saw the appellant hit Joanne and say to her "Hit me you bitch". John Fenwick was sufficiently concerned to turn his car around and follow them. He saw two more blows and heard a crack. Through his rear view mirror he could see Joanne on the ground unconscious. He got out and he found the appellant at first concerned and then saying "You deserve this you bitch". Lee Swaby came out of an adjacent house. He found Joanne in pain and helped her to sit up. The appellant said that they had had an argument and she was drunk and larking about. Lee Murphy, a pedestrian, had seen the appellant push her over and apparently kick her. He thought that she was in quite a bad way with a bruise on her face.
7. In evidence the appellant said that as they walked home amicably enough, suddenly Joanne's mood changed. She lashed out at him with a shoe that she had been carrying and they both then hit each other. He pushed her, she went down and then Swaby and Murphy appeared. Everyone agrees that the police then came and the appellant ran off. He said in evidence that he ran off because he had certain unpaid fines for traffic offences. Joanne declined to press charges and Murphy, who knew her from school days, walked her home. Emma Dye joined them on the way. Joanne was apparently calm when the three parted.
8. The appellant said in evidence that having run off he hid for an hour and a half and then went to the home of Joanne's mother, Annette Noble. In interview he had said, apparently, that he went straight home to bed. It was the prosecution case that before going to the home of Annette Noble the appellant had indeed gone home and had in fact killed Joanne. He got to the home of Annette Noble at about 4 am. She recalled that he had scratches on his cheeks and an abrasion on his forehead and that he said "Look what she's done to me". He was bedraggled, unsettled and barely coherent. He said they had fought on the way home and he was on the run from the police. In evidence the appellant denied that anything of that kind was said at that stage. His case was that he was not then scratched and that nothing was said about marks on him. But he claimed that he did telephone the police to see if they had Joanne. It was the prosecution case that that was a charade; that he got the telephone number of the police and the local hospital and purported to dial, but in fact did not do so.
9. At about 8.53 am that same Sunday morning the appellant went home by taxi from the home of Annette Noble to the house at Keddington Avenue. The taxi driver noticed he was very quiet. He said he found the door unlocked and shouted for Joanne. He got no reply so he telephoned Charelle Smith. Undoubtedly he made that telephone call at 9.07 am. He enquired if Joanne was with her. According to Charelle Smith he said they had a fight, he punched her and she had scratched and clawed him. In evidence he denied saying those things. Charelle Smith offered to pop round and according to her the appellant told her not to do so because Joanne, he said, was not there. In evidence he expressed doubt as to having said that.
10. It was the appellant's case that after speaking to Charelle Smith he went to bed and found Joanne in bed. She had a black eye and told him to get out. Then she got up and hit him and pulled his hair. He caught the left side of her face, they both fell on the bed, she scratched his left forehead and neck and then they were on the floor. He slapped her and he managed to free himself and escape. As he left to go downstairs she was getting up. He had a cigarette downstairs and went back up. He found her still on the floor and thought she had passed out, so he lifted her onto the bed and put her in the recovery position and left her.
11. At 9.15 am he was seen outside the house by Kathleen Moore, a neighbour. He told her that Joanne had attacked him and asked her to feel the bump on his forehead. He said he did not know how much more he could take. He appeared upset and refused a cup of tea saying that if Joanne woke she would not be happy if he were not there. In evidence the appellant was unable to remember that conversation.
12. Susan True gave evidence that she saw the appellant that Sunday morning with some scratches on his arms and face. He said to her he had come in at 6 am and Joanne had attacked him. He pushed her or hit her but they were all right now. In evidence the appellant denied that on that day he met Susan True at all.
13. About 6.30 pm that evening Pat Noble brought back the baby Daisy. She thought that the appellant seemed all right then but he had scratches on his forehead and cheek which he said he got from a fight with three men who had said something to Joanne in a nightclub. He also had scratches on his arm. He said he got those when he ran away after Joanne hit him with a shoe and as they were walking home. She, that is to say Joanne, was, according to the appellant, really drunk and he felt shown up. He said that she had been asleep in bed when he got home, but in the morning she had gone off to a friend's because of the argument. According to the appellant he went up to tell Joanne that Daisy had been returned and only then did he see and appreciate that Joanne was dead. He made no attempt to seek help.
14. Steve Brockman, another neighbour, said that on that Sunday evening the appellant told him that Joanne had a hangover and was in bed. He said they had a row in town and she had hit him with a shoe and that he had knocked her out. In evidence the appellant denied having said that. According to Steve Brockman the appellant said he had hidden in some gardens for a couple of hours before coming home. Apart from his obvious injuries Steve Brockman thought that he seemed fine.
15. On the following day, Monday 9th August 1999, the appellant told Kathleen Moore that Joanne had gone to work for the day and he took Daisy fishing with Joanne's father, Steven Noble, and his son. The appellant accepts that he did that and his explanation was that he was trying to act normally. Later he told Steve Brockman that Joanne had a job in Spalding and then that she was working a double shift. That evening he told Annette Noble that Joanne was sleeping it off. On Tuesday 10th August the appellant arranged for his mother Joan Sharpe to collect Daisy and look after her for a few days at Scunthorpe. At first he said he and Joanne both had a chance to work nights and then he said Joanne had gone to Hastings with a friend. His mother and sister Sharon noticed his injuries. He said he had an argument with Steve Noble which his mother did not believe and in the witness box he denied saying that. He gave his mother a back door key and said to let herself in if she did not hear from him for two or three days and she would find a body - she thought he meant his. On that same Tuesday, Steve Brockman thought that the appellant looked upset. He knew Joanne was not in evidence and he said "She's under the patio, Chris, or she's left you. There is no need to lie. What is wrong?" The appellant then, as he accepts, said that she had left. Aaron Stamp said that the appellant told him that Daisy had gone to stay with her grandmother for a couple of days so that he could get out for a couple of nights and enjoy himself. The appellant denied having said that. He said he was planning to kill himself and that he got some heroin, wrote a suicide note and injected himself. He did go out clubbing that Tuesday with Steve Brockman. He said that he planned to tell Steve Brockman what had happened but in the end he did not.
16. On the following day, 14th August, he spent the night with his mother. Clearly he was not caring for himself and she and his sister noticed over that weekend the smell from his clothing. On Monday 16th August the appellant visited Cheryl Helsdon, a friend of Joanne's, who had been away for a couple of weeks. He told her that Joanne had been with him at his mother's at Scunthorpe. She saw his injuries and he said he had been punched by a man in a nightclub. He also said he pushed Joanne over and the police had come. According to the appellant he tried to commit suicide again.
17. On Tuesday 17th August the police called at the home of the appellant's mother and that morning the appellant took her car and drove to Barnsley, drew cash on Joanne's social security book, dumped the car in Wakefield and went on to Liverpool. That day also Joanne's body was discovered by her mother and Steve Brockman. It was on its side in bed partially covered with a duvet. There was no sign of a struggle, nor, because of decomposition, was there any obvious cause of death. Traces of the appellant's blood were under her fingernails. The cartilage of her nose was disconnected but that could have been caused by decomposition. A note from the appellant was also found. It read:

"I don't really know where to begin to explain what's brought us to the end of our lives. I don't expect anyone to understand any of this but I hope it helps firstly this should not have happened. I have no right to decide that our lives should be snubbed out and Jo and my beautiful little cherub Daisy did certainly not deserve any of this and I who loved, cherished and devoted the rest of my life to the both of them was the one who carried it out what started as an argument went terribly wrong. Daisy is OK and being well looked after. I am sorry everyone for this. I've taken a hell of a lot of shit off Jo and I just snapped. I didn't no I'd done it until it was over.

Sorry.

Chris."

18. That, it seems, was the note which, according to the appellant, had been written several days earlier.
19. On Wednesday 18th August the appellant telephoned Stuart Deakin, who lived with Annette Noble, and said he had not meant to do it and was going to kill himself. He said it was not fair that she should die and he should live. That call was traced and so on the following day, Thursday 19th August, the appellant was arrested in Liverpool. He began to cry. According to the arresting officer he said: "We were just scrapping again. She's gone unconscious and I put her to bed but she didn't wake up after three hours, that's why I got off." The appellant denied having said that to the officer.
20. Before being interviewed he telephoned his mother's home and told Philip Wood that he had had an argument with Joanne and she had gone down and he left the house. He was crying and said he was sorry. In a letter to his sister from prison he denied killing Joanne but admitted slapping her and accepted that he should have gone to the police when he thought she was dead.
21. Realistically there were therefore four issues for the jury to consider. First, did Joanne die as a result of violence inflicted by the appellant, or may she have died from natural causes? Secondly, if she died as a result of violence inflicted by him, was it unlawful in that it was deliberate, non-accidental, and not inflicted in reasonable self-defence? Thirdly, if she died as a result of unlawful violence inflicted by him, did he intend at the time to kill her or to cause her really serious harm? And fourthly, was he or may he have been acting under provocation?
22. Those issues were rightly discussed with counsel in the absence of the jury by the trial judge and they were then deployed by him in the summing-up. In ground 5 of the grounds of appeal it is contended that the first issue was not properly deployed in that the judge did not specifically remind the jury of the possibility, canvassed with both pathologists, that Joanne may have died because she inhaled vomit or swallowed her tongue. Mr Coker QC for the appellant properly drew the omission to the attention of the judge at the end of his summing-up, but the judge accepted the prosecution submission that to raise the matter at that stage would give it undue prominence. Mr Barnes QC for the Crown points out that the judge had told the jury in terms that the doctors could not assist on the issue of cause of death and we cannot regard the judge's failure to remind the jury of two speculative possibilities for which there was no positive evidence as an omission of any consequence. Accordingly we find no substance in ground 5.
23. We turn therefore to the remaining grounds of appeal which are all concerned with how the judge dealt with the probative value of the many lies told by the appellant.
24. In ground 1 it is pointed out that the appellant's case was that although he had not caused the death of Joanne he believed that he would be blamed for it, so he attempted to conceal what had happened and lied. The judge should have made it clear that the jury could only consider his lies to be of assistance in relation to the issue of causation if they rejected that innocent explanation. The conventional formula used in that kind of situation is this:

"If you think that there is, or may be, an innocent explanation for his lies then you should take no notice of them. It is only if you are sure that he did not lie for an innocent reason that his lies can [support the prosecution case]."

25. Adapted to the facts of this case that formula would have read:

"If you think his explanation may be true then you should take no notice of the lies. But if you are sure that he did not lie for the reasons which he has given, or for some other innocent reason, then his lies can support the prosecution case."

26. We agree with the proposition advanced by Mr Coker but we turn then to look at what the judge in fact said. He dealt with the issue of causation quite early in his summing-up and he concluded that issue thus:

"So the first situation is not sure he has caused the death; not guilty. Sure he has caused the death, but by a slap delivered without the intention to kill or do grievous bodily harm, not guilty of murder, guilty of manslaughter."

27. He then went on later to deal with the question of the lies which the appellant had undoubtedly told. The relevant passage reads thus:

"The Crown say that that concealment and those lies were, first of all, to conceal the fact that he had killed her and, secondly, to conceal the fact that he had killed her in the course of a violent incident between them."

28. Mr Barnes draws attention to the lies to which the judge was at that stage referring and which he had identified as being the lies concerned with the whereabouts of Joanne and the cause of the scratches which she inflicted upon his face. The judge continued:

"...before you can use his lies as evidence of his guilt you must be sure of a number of things: first of all, that they were deliberate. I do not suppose that will give you much trouble, in view of the defence's own evidence. Secondly, that they were about something important in the case, and obviously you may think where Joanne was, and what had happened to her, is a matter of great importance. Thirdly, and this is a matter on which you will have to pay particular attention, are these lies proceeded from a consciousness of guilt and desire to avoid the truth? Sometimes as Mr Coker not very long ago submitted to you, people, although they are innocent, at least innocent of the matter with which they are accused, put forward a false explanation, because they think the false explanation will be rather more convincing than the truth. So you will have to consider in the facts of this case, did this defendant lie to conceal the fact that he himself had caused Joanne's death, or for some other reason? If you are sure that he did cause the death, did he lie to hide the fact that he had killed her by using serious violence to her, or simply because he was appalled by the situation he was in. He felt responsible; he felt fearful; he did not want Joanne to be taken away, and I quote the words which I am sure you remember from his own evidence.

If you are sure, members of the jury, that he killed her with the necessary intent, then you must ask yourself was his behaviour and were the lies that he told consistent with his having killed her as a result of provocation, or on the contrary do they tend to negative that he killed her under provocation and point to the fact that he murdered her?"

29. As Mr Coker points out, the evidence of the appellant as to why he lied was adverted to by the judge when he came to deal with what the appellant had said and the judge said this:

"'I didn't have a clue what caused her to die. I thought it was my fault, because we was fighting in the bedroom. I didn't know what happened. I couldn't understand any of it. One minute she's all right and then she isn't. I've not strangled her. I put my hands nowhere near Jo's neck. I've not smothered her. I've not wanted her to die, or suffer serious injury. I didn't even want to hit her. I didn't tell someone she was dead, because I didn't want them to take her away from me. When I said she was asleep, to me she was asleep. I went back downstairs as if she was still asleep, and I looked after Daisy. I was just normal with Daisy. It wasn't me. I carried on to make sure Daisy was all right. To me it wasn't happening. It worked out I knew it was happening. I didn't tell anyone then, I was scared. I knew her family, I knew how her family would react, what the police would have thought. I thought it was my fault. The police would blame me; Jo's family would blame me; I just didn't know half of what happened after that. I could quite easily have appeared to be my normal self, I don't know. I never thought of moving the body or hiding it. I thought that at the end I was going to be with her.'"

30. Then a little later:

"'I told a number of deliberate lies after her death. I knew she was dead. I was in shock; I had the fear, I was afraid they would take her away. I couldn't understand what had happened. I was in a distraught state.'"

31. Mr Barnes makes the point that he was not specifically saying that he was lying to distance himself from what had occurred, he gave a number of explanations in those passages to explain why he lied. But the point of importance in relation to ground 1, as we see it, is this: that if those passages of evidence are read together with the direction in law which the learned judge had given and which we have set out, the jury can have been left in no doubt but that unless they rejected the appellant's innocent explanation for the lies which he told, those lies could be of no assistance to the jury on the issues of causation and illegality and that essentially is the answer to the first ground of appeal raised in this case.
32. We turn now to grounds 2 to 4. Here the point is simply this. Before convicting of murder as opposed to manslaughter the jury had to be satisfied not only that the appellant caused Joanne's death unlawfully - that is to say deliberately as opposed to accidentally and in circumstances other than lawful self-defence - but also that at that time first of all he intended to kill her or to do her really serious injury and secondly that he was not acting in response to provocation to an extent recognised by law. As to those matters Mr Coker submits that the judge failed to direct the jury as he should have done and failed to point out to them that the evidential effect of the lies would be very much less, if any at all, when they progressed from a consideration of the questions of causation and illegality to the questions of intention and provocation.
33. Mr Coker draws our attention to two decisions of this court which were drawn to the attention of the trial judge and which do seem to us to be of significance. The first is the case of Richens (1994) 98 Cr App R 43. In that case a young man had murdered or killed another young man who had allegedly raped his girlfriend. There was no issue as to who had carried out the act but there was an issue in relation to whether the act had been performed under provocation. In this court the significance of the lies undoubtedly told by the appellant were considered by Lord Taylor, Chief Justice, in that context. The direction given need not for present purposes be recited but what was complained of was that the judge did not direct the jury as to how they should, as a matter of law, regard the lies which admittedly had been told. The jury were in effect invited to consider them as potentially probative on the Crown's case of murder and as justifying the rejection of the appellant's account of provocation: the fact that he tried to conceal his crime, that he lied about his movements, and that he had lied about his reasons for trying to cover up and about his general involvement. As to that the Lord Chief Justice said at page 50:

"This approach appears to us to overlook the vital and incontestable fact that a man who has killed by reason of loss of self-control, and therefore faces arrest, trial and possible lengthy imprisonment, may have almost as strong reasons for attempting to conceal his deed and lie about his involvement as a man who has killed deliberately."

34. A little later the Lord Chief Justice at page 51 said this:

"The point is that the jury should be alerted to the fact that, before they can treat lies as tending towards the proof of guilt of the offence charged, they must be sure that there is not some possible explanation for the lies which destroys their potentially probative effect.

Applying that concept to the present case, could the jury be sure that attempts to conceal the killing and lies were inconsistent with the appellant's case that he had killed as a result of provocation, and pointed to murder."

35. Mr Coker submits that the same problem arises in the present case. Once the jury got to the point of considering the issue of intent, could they be sure that the lies which undoubtedly had been told were inconsistent with the appellant's case, and similarly in relation to the issue of provocation, what additional factor was required? Here was a young man who knew that he had killed this woman, assuming that the first two ingredients which the jury had to consider were established. He knew that he had killed her in circumstances which were not accidental and he was therefore responsible for her death. In that situation might he not just as easily have lied in the way that he did even if he did not at the time of killing her intend to kill her and whether or not she had in fact provoked him.
36. The point made by the Lord Chief Justice in Richens came before the court again in Taylor (1998) Crim.L.R 822, of which we have a full transcript. In that case the defence advanced was that the victim had been killed because he had made a homosexual advance to the defendant. Lord Justice Rose giving the judgment of the court drew attention to what had been said by Lord Taylor in the earlier case. In a helpful comment in relation to the case of Taylor in the Criminal Law Review Professor Birch said this, having cited the passage from the earlier case of Richens:

"It follows that the direction on the impact of the accused's admitted lies requires in such circumstances to be amended, so as to focus the jury's attention on whether the lies were told to avoid responsibility for the provoked killing, or for the deliberate murder. In most cases there will be no way of telling, so the lies will lose their possible probative significance."

37. That in our judgment is entirely right. In the present case Mr Barnes, seeking to deal with these submissions on behalf of the Crown, submitted that the judge was careful to leave only two types of lies for the jury's consideration: those relating to the whereabouts of Joanne and those relating to the causes of the scratches upon the body of the appellant. He submits that those types of lies were properly left for the jury's consideration. We find it a little difficult to understand why the jury should not have taken notice of other types of lie which there were, seeing the judge did not tell them to ignore other types of lie, nor for that matter do we see why the judge should have required them to look only at those two particular types of lie. But as to the question of intent, Mr Barnes submits that the lies about the scratches upon the body of the appellant were probative of that ingredient in the offence because they tended to show that there had been violence between the appellant and the deceased and that this was not simply a case of a single slap. That of course is true so far as it goes, but the appellant's own account of what happened sought to explain the marks upon him and, if accepted, even to some degree, that account would still be consistent with the marks upon him being inflicted without there being established the necessary intent for the purposes of murder. So we find it difficult to understand how the lies which he subsequently told could be said to show that he intended to kill or to do really serious harm, rather than simply that he wished to distance himself from a killing from which he was responsible. Similarly in relation to the issue of provocation, as was pointed out both in Richens and in Taylor. We can find nothing in the lies which are in evidence in the present case which tend of themselves to show that this young man was not acting in response to provocation. Whether or not there was provocation he ex hypothesi was responsible for the death of the deceased. We accept entirely that the summing-up was full and fair in all other respects but we do consider that the judge should, and in this case it was important that he should, have drawn the difficulty which we have attempted to outline to the attention of the jury. He should have made it clear to them that whereas the lies could help in relation to causation and illegality, once one got past that point it was difficult indeed, on the facts of this case, to see how the lies could be said to be probative either of intention or of lack of provocation.
38. In those circumstances we have come to the conclusion that the only proper way in which to deal with this matter is to allow the appeal in relation to the offence of murder to the extent that we set aside the conviction for murder and we substitute for it a conviction for manslaughter. In our judgment having come to the conclusions that we have in relation to the grounds of appeal other than grounds 2 to 4, there can be no objection to that course. That is the course that we intend to pursue.
39. We do not intend to sentence this afternoon because in our judgment it would be appropriate before passing sentence to have the benefit of a pre-sentence report, a report from the prison authorities in relation to the time already spent in custody and possibly, depending upon the contents of those two reports, a medical report. When those documents are available we will proceed to sentence. Meanwhile, we order, of course, that the appellant remain in custody.
40. I am reminded by my Lord that the form of legal aid that probably is in existence almost certainly extends only to the conviction appeal. There will have been no thought given to this stage from here onwards.
41. MR COKER: Would your Lordship consider extending it to cover sentence?
42. LORD JUSTICE KENNEDY: Mr Coker, I am afraid we can do no more at this stage than to say we would grant legal aid for the next stage of the hearing for one counsel, leader or junior, not both I am afraid and not solicitor.
43. MR COKER: My Lord, thank you.