England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
(HHJ HAWKINS QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/03/2006

Lord Justice Maurice Kay:

1. On 2 December 2004 in the Central Criminal Court the appellant was convicted of murder. He now appeals against that conviction by leave of the Full Court. The deceased, Peter Greenfield, was murdered in his home on or about 21 April 2003. The murder was brought to the notice of the police by Damian Brutus who attended Croydon Police Station on the night of 21 April and told an officer that he and another man had murdered someone. As a result of what Brutus said, the police eventually forced entry into the deceased's flat. There they found the deceased's body lying on the floor. His jeans and underpants had been pulled down and a male homosexual pornographic magazine had been placed over his genitals, and another over his chest. A white plastic bag with a hole over his mouth and nose was knotted over his head. His hands were tied behind his back. A post-mortem established that death had been caused by asphyxia and compression of the neck. The deceased had been gagged and he had deep bruising to his right cheek and jaw together with bruising to the left cheek. Bruising to his neck indicated that there had been significant compression of that area. There was also deep bruising to the back and significant blunt trauma to the head. The deceased had cuts to his hands indicative of defence wounds and slash wounds to the lower abdomen and buttocks. There were also signs of bums to the genital area.
2. DNA attributable to the appellant was found on a filter-tip cigarette under a bin liner by the deceased's head. A print from the appellant's footwear was found on a television licence on the floor. A print from Brutus' footwear was also found on that television licence. It was not possible to say which footprint had been deposited first. The appellant's fingerprints were found on two pages inside one of the male homosexual pornographic magazines. His palm print was found on a radiator near the body and a further fingerprint was found on an alcove by the fireplace. Brutus' fingerprints and some unidentified fingerprints were found on the bin liner by the deceased's head. Brutus' DNA, fingerprints and footprints were also found on other items at the scene, including a Stanley knife which was smeared with blood from the deceased.
3. The case for the prosecution was that the appellant and Brutus had murdered the deceased as part of a joint enterprise. So far as the appellant was concerned, the prosecution relied on the findings to which we have referred as probative circumstantial evidence. It was also contended that, in interview, the appellant had lied when denying that he had seen the pornographic magazine which bore his fingerprints. The case for the appellant was that, although he had been to the deceased's flat in the weeks preceding the murder, he had not been present at the time of the murder. He had been elsewhere but he could give no details because he was not arrested until some six weeks after the murder. Although he knew Brutus, he had never been to the flat with him. His DNA, footprint and fingerprints were explicable by reference to earlier visits.
4. Although the appellant and Brutus were charged jointly, they were tried separately. In his subsequent trial, Brutus was also convicted of murder. His case was that, whilst he had been involved, the offence of which he was guilty was one of manslaughter rather than murder.
5. At the conclusion of the prosecution case in the appellant's trial, his counsel made a submission of no case to answer. In laconically rejecting the submission the judge said simply this:

"Having considered all the submissions ... in my view, the findings of DNA and fingerprints and the footprint provide a fit case for a jury to consider. So, in my view, there is a case for the defendant to answer."

6. On behalf of the appellant Mr Molyneux now advances a single ground of appeal. It is that the judge ought to have acceded to the defence submission at the conclusion of the prosecution case.
7. Following the rejection of the submission, the appellant gave evidence. It took the form of a more detailed account of what he had said in interview. He said that he had known the deceased for some three or four months before his death. The appellant had been living in "crack houses" in and around Croydon. The deceased had invited him in for a drink and after that he had seen the deceased on a number of occasions in his flat. He expected that his fingerprints would be all over the flat. He could not recall how his palm print had come to be deposited on the radiator. He had no recollection of touching or picking up any homosexual magazines in the flat. He had no recollection of standing on the telephone bill. He did not know for certain that the deceased was homosexual. However, on one occasion the deceased had asked him whether he had a hairy chest and this had made him uncomfortable. It might have been after that that he had stopped going to the flat. He could not account for his whereabouts on and around 21 April because his lifestyle did not permit such detailed recollection. However, on 22 April he had been arrested for shoplifting. He had assaulted a police officer on arrest and had received a three month sentence. He remained in custody until the date of his arrest and interview in relation to the murder.
8. The submission of no case to answer fell to be considered by reference to the test in Galbraith 73 Crim App R 124 at page 127 where Lord Lane CJ said:

"(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty -the judge will stop the case. The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to the taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

9. In a nutshell, the submission on behalf of the appellant is that this is a case of circumstantial evidence in which the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it because the circumstances, whilst consistent with the prosecution case, are also consistent with the defence case as disclosed in interview by the appellant.
10. Mr Molyneux seeks to rely on the decision of this Court in the case of Moore (unreported, 92/2101/Y3, 20 August 1992). There the appellant was one of two brothers who were convicted of burglaries in the Southampton area. The brothers lived with their parents in Sheffield. The appellant's brother was allowed the use of the family car. The car in question was seen close to one of the houses which was burgled in Southampton. The burglary took place very shortly after the sighting. Forty minutes later the appellant's brother returned to the car and was arrested. Some documents found in the car belonged to the appellant. In due course he was arrested in Sheffield. Whilst that was evidence that he had been in the car, a fact which was common ground as there was evidence to the effect that he frequently travelled to musical events around the country with his brother, there was no evidence that the appellant had been in Southampton on the occasion of any of the burglaries, or on any other occasion. The prosecution relied on the documents recovered from the vehicle and the fact that two men had been seen to get out of the car and had been chased without apprehension 40 minutes prior to the arrest of the appellant's brother. The appellant's case in this court was that the judge ought to have acceded to a submission of no case to answer. It seems to us that his appeal was irresistible. Indeed, it was not resisted by the prosecution. Steyn LJ said:

"From the inferred fact that the appellant was in the car at some stage, the prosecution sought to infer that he must have been in the car on Sunday 17 March when the burglaries were committed and that he took part in the burglaries. There is certainly a possible inference but it would be a logical jump to say that it was the only reasonable inference. It is equally possible that the appellant travelled in the car before that weekend and left articles on an earlier occasion and that he was not in the car on 17 March at all."

11. He referred to the well known case of Mcgreevy v DPP [1973] 1 WLR 276 and the passage in the speech of Lord Morris of Borth-y-Gest at page 285B:

"It requires no more than ordinary common sense for a jury to understand if one suggested inference from an accepted piece of evidence leads to a conclusion of guilt and another suggested inference to a conclusion of innocence a jury could not on that piece of evidence alone be satisfied of guilt beyond all reasonable doubt unless they wholly rejected and excluded the latter suggestion."

12. Steyn LJ put it this way:

"If the proved facts do not exclude all other reasonable inferences then there must be a doubt whether the inference sought to be drawn is correct."

13. As we understand it, it was the above passage from the speech of Lord Morris of Borth-y-Gest which gave birth to the standard direction on circumstantial evidence which is advised by the Judicial Studies Board. It remains an important and helpful direction. However, it was formulated in terms which clearly and inevitably allow for the rejection of one of the suggested inferences by the jury. As we read the judgment of Steyn LJ it was to the effect that the inference invited on behalf of the appellant in Moore was a reasonable one about one which any jury, properly directed, would be bound to have a doubt.
14. We do not read the speech of Lord Morris or the judgment of Steyn LJ as meaning that the mere fact that the version of facts contended for by the defence is a logical possibility means that a submission of no case to answer must succeed. Sometimes the proffered version is logical but so implausible that a reasonable jury, properly directed about circumstantial evidence, would be justified in rejecting it. At the end of the prosecution case, the judge is not required to withdraw from the jury a case in which the circumstantial case for the prosecution is strong and the logically possible defence case is one which a reasonable jury would be entitled to reject.
15. In the present case the circumstantial case for the prosecution was indeed strong. In the admittedly small flat the area around the body as depicted in the photographs contained a small number of items strewn upon the floor. Although the flat was not particularly tidy, nor was it as untidy as similar premises often are. The point of greatest untidiness was at a little distance from the body, close to a bedside cabinet which it seems had been ransacked. The footwear mark (along with one from Brutus) on the television licence, the palm mark on the radiator, the DNA on the cigarette butt under the bin liner and the marks on the homosexual magazine were all consistent with the participation of the appellant in the offence. Whilst the white bag around the head of the deceased did not yield any forensic evidence to link it with the appellant, he admitted in interview that he had searched that white bag on an occasion in the flat when he had been looking for drugs. Alongside the body on the floor were found a number of prescription drugs. It would certainly be open to a jury to infer that they had been discarded by the appellant when he searched the bag for drugs and that, given their distribution and the general appearance of that part of the flat, he had done so on the occasion of the murder. The bag, the prescription drugs and the television licence were all attributed to a man called Kennedy, another resident in the building.
16. There is a further question relating to the prints on the homosexual magazine found on the chest of the deceased. The case for the prosecution was that the appellant had told a lie in interview when denying that he had ever seen any homosexual magazines in the flat. We have considered the text of the interview and a jury would certainly be entitled to interpret it in the way suggested by the prosecution. Mr Whittam suggests that it was a material lie because it went to the motive for the murder, which was plainly homophobic. In our judgment, a jury, properly directed, would be entitled to come to that conclusion.
17. We are entirely satisfied that the trial judge was correct to reject the submission of no case to answer. Such was the strength of the circumstantial evidence that, in our view, he would have been usurping the function of the jury if he had allowed the submission. Whilst the case of Moore fell on one side of the Galbraith line, the present case falls plainly and clearly on the other side. It was a matter for the jury to decide whether the logically possible alternative inference contended for on behalf of the appellant should be rejected because the prosecution had proved their case to the requisite standard. We consider the conviction to be safe and, accordingly, the appeal is dismissed.