England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		12th May 2016

LORD JUSTICE TREACY: I shall ask Mrs Justice Cheema-Grubb to give the judgment of the court.

MRS JUSTICE CHEEMA-GRUBB:

1. The applicant renews his application for leave to appeal against conviction after refusal by the single judge.
2. On 16th April 2015, following a trial in the Crown Court at Chelmsford before His Honour Judge Ball QC and a jury, the applicant was convicted of murder. The evidence against him was overwhelming. On 22nd June 2015 he was sentenced to imprisonment for life. The period of 20 years and three months was specified as the minimum term under section 269(2) of the Criminal Justice Act 2003.
3. The victim, Colin Evans, was 40 years old. He lived in a room above the Sanctus Café premises in Broomfield Road, Chelmsford with his dog Sweep. The accommodation, for homeless people, comprised three self-contained rooms with a communal kitchen, bathroom and toilet. Colin Evans' room was on the first floor along with the shared facilities. The two other rooms, which were occupied by Joel Calhoun and Nigel Burton, were on the second floor.
4. At the end of September 2014 the applicant started to sleep rough in a local park, but from time to time he would stay in Mr Evans' room. Mr Evans would help him out. They were often seen together.
5. In the days leading up to the murder the applicant was seen to be acting strangely. It was suspected that he was abusing drugs.
6. Miss Ben-Younes, an employee of the Sanctus Café, saw the two men together on 29th September 2014 (the day of the murder). The other occupants (Mr Calhoun and Mr Burton) recalled seeing the deceased with the applicant that evening. Mr Calhoun had watched television with them in the deceased's room before leaving to go to his room to read and sleep.
7. The applicant had been wearing a grey T-shirt with black sleeves and with the word "Harlem" on the front. CCTV footage of the area showed a male matching the applicant's description carrying a rucksack and walking a dog in the early hours of 30th September 2014.
8. At about 8.24am, on 30th September, Miss Ben-Younes called the police. A short while before, upon entering the upstairs area of the café, she noticed that Sweep was not asleep on his bed in the kitchen. She called out for the deceased. She entered his room and saw his body in front of the sofa, covered in blood. One of the sofa cushions had been placed over his face. There was blood everywhere, with blood spray across the walls and blinds. He had been attacked with a sharp instrument. He had suffered multiple cuts and injuries, including two grave stab wounds to his neck and his side.
9. The applicant's description was circulated. He was located in a nearby park with Sweep. The arresting officer noticed that he had dried blood around the area of his right ear. This was later found to be the blood of the deceased. He was wearing a watch, ring, clothing and trainers that belonged to the deceased.
10. In interview with the police he provided a prepared statement in addition to answering some of the questions. He said that he had watched television with Mr Calhoun and the deceased. When Mr Calhoun had gone to bed, he and the deceased had continued watching television until they both fell asleep. He woke up at about 5am and took Sweep for a walk. He returned to the room shortly thereafter. The deceased was asleep and snoring. He left the room again at about 6.15am wearing some of Mr Evans' clothes. He insisted that when he left, the deceased was alive.
11. At trial the applicant's defence was that he was not responsible for the murder which must have been committed by someone else. He gave evidence. He said that it was a lie to say that he was becoming mentally unwell. He had not said the strange things of which witnesses had accused. He did not steal the ring from the deceased but had paid him £20 for it. His account continued that on 29th September he had collected his belongings and taken them to Mr Evans' room. During the morning he had gone for a run. He got dog mess on his clothes and later took off his jeans and placed them in a bag. The "Harlem" T-shirt was his, but he had not worn it at any time that day. He said that he had stayed at the deceased's flat that evening. The atmosphere was good and they did not argue. At about 1am he decided to go for a walk in the park with Sweep prior to leaving Mr Evans. Mr Evans gave him his own watch so that the applicant would be aware of the time. Colin Evans was alive when he left. He spent around two hours in the park. When he returned, the deceased had been killed. He touched his wrist to try to find a pulse. He then became scared, took his possessions and the dog and left. He had started to go upstairs, but stopped in case the murderer was still present. He did not contact the police because he had previously been found guilty for nothing he had actually done in Portugal. He had lied in interview because he was confused and scared.
12. The issue for the jury, therefore, was whether the applicant was the person who had murdered Mr Evans. The applicant faced the following evidence:

(i) His unusual behaviour in the weeks leading up to the murder, which suggested that he had returned to drug abuse;

(ii) Evidence that on the morning of 29th September 2014 he had picked up some of his belongings from his old room, including a multi-tool or Swiss army knife, the blade of which had not been recovered and which could have been used to cause the fatal wounds to Mr Evans. It was the prosecution's case that this knife had been disposed of by the applicant in the early hours of 30th September, after the murder.

(iii) Views Mr Evans had expressed about the applicant on the morning of 29th September, which indicated that the generous, free accommodation he had been giving him may have been withdrawn.

(iv) The "Harlem" T-shirt that the applicant had worn the night before was found bloodstained on the deceased's floor, along with a pair of jeans. Scientific examination demonstrated that they also bore the deceased's blood.

(v) The applicant's DNA was found on the T-shirt. The blood pattern on the clothing of the T-shirt and jeans indicated that the clothes were worn by Mr Evans' killer at the time he was murdered.

(vi) He was arrested in possession of the deceased's personal property.

(vii) He had the deceased's blood around his right ear and also on the side of his face.

(viii) The applicant's thumbprint in blood was identified from one of the blood marks on the wall in the deceased's property.

13. Three legal rulings made by the trial judge are criticised by the applicant and form the basis for this renewed application. Firstly, the applicant wished to cross-examine Mr Calhoun, who was a prosecution witness. Although it was not part of the applicant's defence to assert that Mr Calhoun was the murderer, he was one of the few people with the opportunity to commit the offence (apart from the applicant himself). The applicant required the trial judge's leave before being able to put to Mr Calhoun questions about his bad character, namely, some previous criminal convictions for public order and similar offences, committed around the end of 2013, and before exploring suggestions that Mr Calhoun had mental health issues, had confessed to killing his own brother, and had made threats to kill staff at a job centre over a year earlier.
14. This information had been provided to the defence in prosecution disclosure documents which stated that, when at a job centre at Waltham Cross in December 2012, Mr Calhoun had caused alarm to staff by making threats and also referred to the fact that Mr Calhoun told police he had been subject to sectioning under the Mental Health Act in the past.
15. Any such application to introduce bad character of a non-defendant, which is contested, as this one was, must satisfy the test in section 100 of the Criminal Justice Act 2003. In summary, such evidence is only admissible if it is important explanatory evidence or it has substantial probative value in relation to a matter in issue which is of substantial importance in the context of the case as a whole.
16. The trial judge ruled that the evidence of Mr Calhoun's possible mental health issues and his antecedents appeared to relate to bizarre behaviour over a short period. Furthermore, the judge was not persuaded that the alleged relevance of this material was anything more than utterly speculative. He concluded that it did not have sufficient probative value in the proceedings.
17. The applicant submits that the judge erred in refusing to admit this evidence. He argues that the jury were entitled to consider it because it was central to the defence case and the jury would have been free to reject it if they thought it irrelevant.
18. This is to misunderstand the test the judge had to apply. It was for the judge to ascertain the potential relevance of the proposed questioning. We are not persuaded that it is arguable that he fell into error in concluding that it failed the test by some distance and was of insufficient probative value.
19. Secondly, the prosecution sought a ruling on the bad character of the applicant himself, namely, evidence of previous convictions in Lisbon, Portugal for aggravated theft in 2009 and robbery in 2006, which were disputed by the applicant; and convictions recorded in Madeira, Portugal for aggravated theft in 2003 and robbery in 2006, which were not disputed. The application to adduce this evidence was objected to in its entirety, but the particular issue relevant to this application was the fact that the applicant denied that the offences in Lisbon related to him at all. The basis for the prosecution's application was that the convictions were relevant to the issue of whether the applicant had the propensity to engage in violence, in particular in circumstances where he acquired property belonging to others. Of course, the applicant was asserting, as we have said, in the instant case that the property belonging to Mr Evans, which he had possession of after the murder, had been given to him by the deceased.
20. The trial judge ruled that all four recorded convictions met the statutory test, that is, for proving foreign convictions in section 7 of the Evidence Act 1851 and for the admission of a defendant's bad character by satisfying section 101 of the Criminal Justice Act 2003, and that they could all be admitted.
21. The applicant submits that the judge erred in admitting this evidence. He relies on the following: (a) the fact that no details or factual background was available for any of the four offences made the admission wholly unsatisfactory and prejudicial; (b) the fact that the applicant denied that two of the offences related to him at all made their admission particularly prejudicial and could have raised satellite issues in the minds of the jury; (c) furthermore, he submits that in due course during his summing-up the judge directed the jury in terms which suggested that they should disregard the two convictions the applicant did not accept should be attributed to him. If he was to give such a direction, then the evidence should not have been admitted at all.
22. There is nothing in these complaints. The prosecution was in a position to prove all convictions against the applicant because properly certified documents from Portugal had been obtained. In due course, during his evidence the applicant admitted that he had been convicted of two of the offences (albeit he asserted wrongly so). Secondly, the convictions were relevant to two important matters in issue: the identity of the killer and the applicant's propensity to commit acts of violence, robbery and dishonesty. The Crown's case was, as we have observed, that after the murder the applicant stole some of the deceased's belongings. In the circumstances the prosecution had satisfied the test for admissibility under section 101(d) of the Criminal Justice Act 2003 in that the convictions were relevant to an important matter in issue between the applicant and the Crown.
23. Turning to the third argument, during his summing-up the trial judge directed the jury in this way. He explained the rationale for the admission of the previous convictions and directed the jury to be careful not to place a disproportionate significance on such evidence. He carefully reminded the jury that the picture was more complicated in the applicant's case because he denied the Lisbon convictions altogether and had explained that the Madeira convictions were not justly his. The judge reminded the jury of the applicant's case in respect of all four convictions. The judge concluded as follows (at page 40E):

"If they go into the scales in favour of the prosecution, they must go in very much as a matter of light weight, and solely to inform you that this is someone that does have the potential to be aggressive and violent towards somebody else. But, you could only use it in that way if you were sure that in fact he does have that past conduct against him, and you might, therefore, think out of absolute fairness, that it is best to disregard these matters.

I cannot tell you as a matter of law you must disregard them, but you certainly must take care not to allow this information to decide the case and to sway it against him."

24. When considered in the full context of the summing-up, as we have summarised, it is clear that the judge set out the applicant's attitude to both pairs of recorded convictions and properly directed the jury that while the evidence was for them to consider, in all the circumstances they may wish to disregard them; or if they chose not to do so, they must not give them too much weight. This was a properly crafted direction which was more than fair to the applicant and did not undermine the judge's initial decision to admit the evidence.
25. Finally, the applicant objected to the admission of graphical representations of the deceased's injuries, which included the especially serious neck wound in which both the carotid artery and jugular vein had been severed.
26. We have seen the images. They are no more than pictorial illustrations of the injuries sustained by Colin Evans. The admission of such material can be fairly described as properly within the discretion of a trial judge. The applicant argued – and argues – that these images were simply too explicit and lifelike, albeit representations rather than photographs, and that their admission rendered the trial unfair.
27. Having heard argument, the trial judge concluded that the images could properly be placed before the jury because they confirmed that the attack was significant and severe, with obvious deep and traumatic injuries, in particular around the deceased's throat. In the context of the issues in this case, it was necessary for the jury to know the detail of the injuries inflicted. In our judgment he was right to do so. There was pathological evidence that when the deceased's throat was injured the artery was severed, which would have caused blood to spurt violently from the wound. In support of that pathological evidence, there was clear evidence of a bloodstain in the pattern of an arterial spray on the applicant's T-shirt which had been abandoned in the deceased man's flat. There were signs in the shared bathroom of attempts to clean bloodstains. The finding of the deceased man's blood around the ear and side of the applicant's face was consistent with the murderer turning his face away from a stream of blood and, though making an attempt to clean it off himself, having failed to do so completely.
28. It was the case for the applicant that he was not present at all during the attack and had simply later discovered the body. The jury would have to consider the nature of the injuries inflicted when deciding whether or not his account was credible. These images were graphic, but not as much as the photographs of the deceased man would have been. In all the circumstances it is not arguable that the judge erred in the exercise of his discretion in admitting the graphics.
29. The matters raised in this renewed application do not begin to raise arguable grounds against the safety of the applicant's conviction for murder. Accordingly, the application is refused.