England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		15 March 2018

LORD JUSTICE SIMON:

1. On 24 January 2017, in the Crown Court at Wood Green, before His Honour Judge Browne QC and a jury, the applicant was convicted of murder. On 25 January, he was sentenced to imprisonment for life. The period of 20 years was specified as the minimum term under section 269(2) of the Criminal Justice Act 2003, less 316 days spent on remand.
2. On 21 February 2017, trial counsel settled grounds of appeal against conviction and sentence. There were four grounds of appeal but only one is relevant to the present application, namely a ground which challenged the admission of, and jury directions in relation to, hearsay, bad character and background evidence.
3. On 31 May, the single judge refused leave to appeal against conviction and sentence.
4. The present hearing is a renewed application for leave to appeal against conviction and sentence, which is advanced by Mr Bajwa QC and Ms Niculiu, neither of whom were trial counsel. They have lodged what they describe as "Perfected Grounds of Appeal Against Conviction and Sentence". The document is dated 17 September 2017. They have not applied to vary the grounds - see R v James [2018] EWCA Crim 285, paragraph 38(iii). The new document abandoned three of the grounds (1, 3 and 4) which the single judge had considered in May and "substantially redrafted" ground 2, now described as ground 1: "Hearsay direction for the Crown's evidence". Two further grounds of appeal are advanced under the headings: ground 2, "Dr Philip Joseph's evidence"; and ground 3, "Angela Burgess' evidence".
5. As is clear, and more so since James, the recasting of the grounds of appeal after consideration by the single judge subverts an important part of the process: the assessment of grounds of appeal on paper so as to ensure that only those cases that are properly arguable come before the court. The grounds of appeal are not to be regarded as the first attempt at an appeal; they are the grounds upon which the challenge is based. If new grounds are to be advanced, there must be an application.
6. Before turning to these points and to the application in relation to sentence, it is convenient to set out briefly the facts giving rise to the charge of murder. Lyndsey Smith was aged 42 at the time of her death on 11 March 2016. She was found in her home having suffered a single 20-centimetre stab wound which had passed through her stomach and torn her main artery. There was also evidence of significant bruising to her head and face, and damage to her neck, including a fractured larynx. She had been in poor mental and physical health, suffering from bipolar disorder and having abused drugs and alcohol. The problem with alcohol was ongoing and she would often become violent when in drink. She had also self-harmed in the past, causing superficial cuts which left scars on her wrists.
7. She had been in a turbulent relationship with the applicant at the time of her death and during the preceding 3 years. He was said to have beaten her regularly. Evidence of these violent incidents came from the deceased's diary, reports she made to the police, what she told doctors and other health professionals, and from the accounts of various friends and family members, which included what they had seen and what she had told them. Her home had been modified to protect her. These modifications included an 8-foot gate placed across a side alleyway, bars at the door and locks on all the windows.
8. During the morning of 11 March, neighbours saw her looking well and contented with no apparent injury. She had been shopping with the applicant. He had returned to stay at her address following his release from a prison sentence. At about 4.00 pm, a neighbour saw Lyndsey Smith placing an empty brandy bottle into the outside bin. She appeared drunk but had no injuries at that time. Her dog, named Wong, was also outside and had an injury which was bleeding. She told the applicant to fetch a cloth to clean the dog's leg and the neighbour noticed that she spoke aggressively towards him. The neighbour said she thought the situation would probably kick off, which it usually did when she had been drinking.
9. During the course of the evening raised voices were heard coming from the address, as well as the sound of things being moved about and people running up and down stairs. Lyndsey Smith was heard to say, "Why did you hit me?" and the applicant was heard to say, "I'll fucking leave you to it, I'm going out".
10. Lyndsey Smith used her telephone during the afternoon, speaking to her daughter, Megan Smith, at about 5.15 pm and to her mother Barbara at 5.20 pm. Both thought that she sounded drunk. Her telephone was not used again after 5.20 pm. Neighbours called at the address at 7.30 pm but there was no answer.
11. CCTV footage showed the applicant waking away from Lyndsey Smith's address at 5.53 pm via various alleyways. The Crown's case was that the applicant had murdered her between the time of her last phone call at 5.20 pm and his leaving the property at 5.53 pm. The applicant took a number 121 bus and visited his friend Stuart Roth, who formed the opinion that he was drunk. The applicant bought more alcohol from an off licence and then visited his mother at about 7.20 pm. She described him as tearful and emotional. He had been drinking but was not drunk. She said he spent about 30 minutes at her home, during which he telephoned his brother in Cornwall and was in the spare room for a while. He was seen returning to Lyndsey Smith's address about at 11.30 pm that night, at which time he was wearing different clothing.
12. The applicant's evidence was that he spent the period of about 3 hours between visiting his mother and returning to the flat with his long-term friend Angela Burgess. The prosecution took a statement from Ms Burgess during the trial and based on the contents of the statement put it to the applicant in cross-examination that he had in fact stayed at her address for no longer than 1 hour.
13. In any event, he regained entry to Lyndsey Smith's property using a plastic card - he had not been given a key - and soon returned to the street crying out, "She's gone, my missus has gone ... why have you done this?"
14. Inside the flat, neighbours and police found Lyndsay Smith's body on the sofa covered with a duvet but wearing her boots. Rigor mortis had started to set in. In the kitchen there were signs of a disturbance: a kitchen drawer was open and a bloodstained knife and her slippers were on the kitchen floor. It was the prosecution case that the final altercation was in the kitchen and that the applicant had used the knife to wound her fatally.
15. The applicant was arrested and told the police he had had a "domestic" earlier which had included "arguing and throwing stuff around". He said he had left and returned later to find her dead. He said, "She must have done it to herself". He subsequently gave a prepared statement denying he had killed her or physically assaulted her in any way on 11 March. He gave an account of the day, including that when he left her address between 5.00 pm and 6.00 pm she was uninjured. He said he had visited his friend Stuart between 6.00 pm and 10.00 pm before returning to the flat and finding her dead.
16. We turn to the first ground of appeal against conviction, a complaint that the judge misdirected the jury in his summing-up on how they should approach the hearsay evidence of the applicant's alleged previous violence to Lyndsey Smith. Mr Bajwa submits that the law in relation to hearsay evidence is clear: the jury should be warned of the limitations of such evidence; in particular, the fact that it cannot be tested in the way that other evidence may be tested at trial. He relies on various statements of this principle, including the clear expression by Lord Bingham in the Privy Council decision Grant v The State [2007] 1 AC 1 at paragraph 21(4).
17. The direction in the present case was in the following terms:

Hearsay evidence. You have heard much hearsay evidence in this case. That often happens in a trial such as this where there are no independent eyewitnesses, so it is right that we should hear evidence of what Lyndsey is said to have told others about what [the applicant] allegedly did to her. The weight and reliability to be attached to such evidence is a matter for you to judge, bearing in mind that it is not first-hand evidence. The witness statements of several witnesses have been read not because their contents have been agreed but because their contents cannot be challenged because LS is unavailable to give evidence. You, the jury, must be sure that the evidence is true in order to place reliance on it.

18. We should say at once that that was an unconventional direction on hearsay. There have been a number of cases touching on hearsay directions since Grant but the general principle is clear: the jury should be directed as to the three major limitations of hearsay evidence: one, the lack of opportunity to observe the demeanour of the person making the statement; two, the fact that the statement was not made on oath; and, three, the lack of opportunity to see the witness' statement tested in cross-examination. As one would expect, the judge made available copies of his proposed direction on hearsay and it was subject to amendment at the request of the defence with specific input from the applicant's then junior trial counsel.
19. It is necessary, therefore, as far as one can, to consider how the hearsay evidence figured in the trial and whether the direction amounted to a misdirection which arguably led or contributed to an unsafe verdict.
20. It is clear that the real issue was what happened on 11 March: did the applicant stab Lyndsey Smith? The prosecution case was that he fatally stabbed her and then left her home. The defence case was that the 20-centimetre stab wound in her stomach was self-inflicted. Whether there had been a violent altercation in which the applicant had assaulted her and as a result of which she had suffered abrasions to the face, fracturing to the spur of the larynx and a head injury which may have led to unconsciousness came to be an issue.
21. The defence case statement signed by the applicant on 19 July 2016 accepted that he had been violent to her and that on the day of her death "he is likely to have caused injury to Miss Smith's face and body in the course of the argument" - see summing-up page 90F to G. In his evidence, he said that the domestic issues between them were due to her alcoholism and mental problems and he denied that he had assaulted her at all - see summing-up page 92E. That change was plainly an important matter for the jury to consider.
22. There was a large amount of material that the prosecution wished to deploy in relation to what it contended was a history of domestic abuse. The hearsay evidence primarily related to this background evidence but it cut both ways. Both sides proceeded on the basis that the history of their relationship should be put before the jury, but for different reasons. They also agreed that details of abuse should be kept in the background. The different reasons were these. The defence wanted evidence of her state of mind and behaviour in support of their theory of suicide. The prosecution did not want matters of history to overshadow the crucial focus on what occurred on the day of her death but wanted the jury to be aware of the background of domestic abuse. Among the background material which favoured the defence and which went before the jury was hearsay evidence of Miss Smith's mental state, her abuse of alcohol and drugs and her violence towards the applicant and her history of self-harm.
23. In the summing-up, the judge said this:

Background evidence. You've heard a great deal of background evidence relating not only to GW's previous alleged violence towards LS but also of her various medical conditions, her alcoholism, her consumption as both described in illicit drugs and her previous incidents of self-harming. You've heard about these matters not to generate any unfair prejudice against either him or indeed her but rather to assist you in the crucial events of what happened at the address ... during the afternoon and evening of the 11th March 2016.

24. The Crown Court Compendium makes clear that "the strength of the warning [in relation to hearsay evidence] depends on the facts of the case and the significance of the hearsay evidence in the context of the case as a whole".
25. Mr Bajwa very fairly acknowledged that a full and conventional direction might have meant that the jury disregarded hearsay evidence of self-harm to the disadvantage of the applicant.
26. In our view, the direction should have been better tailored to the particular circumstances but in the circumstances, viewed overall, we do not consider that it amounted to a material misdirection which affected the safety of the conviction.
27. We turn then to the second ground of appeal. This is a complaint that the prosecution adduced inadmissible expert evidence from a forensic psychiatrist and coroner Dr Philip Joseph. It was the defence that first introduced forensic psychiatric evidence in the form of Dr Richard Latham. We were told by Mr Bajwa that it was intended that his evidence would be that people who appear cheerful, as Lyndsey Smith did on 11 March, may nevertheless commit suicide shortly afterwards.
28. In the event, both psychiatrists gave evidence on the same day and much of the evidence that they gave does not gave rise to arguable complaint. For example, Doctor Joseph said it was extremely uncommon for someone to self-harm by stabbing themselves in the stomach and if they had done so, he would have expected relatively superficial preliminary cuts.
29. Dr Latham's evidence related to the statistical likelihood of the suicide of those who suffered from depression and additional factors relating to alcohol. In cross-examination he said he had no personal experience of suicide by stabbing with a knife to the stomach.
30. The complaint that is now made is that although the psychiatrists were called to give evidence about suicide, Dr Joseph gave evidence about murder, in particular the likelihood, with examples, of violent men murdering vulnerable women. He said that in his experience it was far more common for violent men to kill vulnerable woman, particularly against a background of domestic violence. It is argued that he may have gone so far as to suggest that a male murderer might disguise his crime as suicide, although there was nothing in the summing-up about this.
31. The judge gave a conventional direction on expert evidence at page 66A of the summing-up:

Consideration of evidence relating to possible suicide. You've heard from two experts. In fact, you've heard from three but two on this topic, both experienced consultant psychiatrists who obviously have been, as they told you, in a large number of other cases and can assist the jury with their specialist knowledge of certain topics. You are not bound by their evidence. They are there to assist you with their expertise. They give their opinions. That's the purpose of expert evidence. They are entitled to say what their findings are and to give their opinions in a court of law, but you are the judges of the facts. This is a very important issue in the case which you need to resolve but the extent to which both psychiatrists help you in the absence of a full psychiatric examination of the deceased is a matter for you to judge. That was a point of absolute agreement between the two forensic consultant psychiatrists.

Dr Joseph said it's very difficult to give an opinion in this case about a woman you have not for obvious reasons had a chance to assess. So you may think that restricts the ability of both gentlemen to answer questions accurately but you may find generally their evidence is of assistance in dealing with the topic of suicide.

32. Whether opinion as to the relative likelihood of suicide was ever relevant and admissible is a matter that may be debated but it was the defence that introduced the evidence and in the context of the present case the possible causes of death were either suicide or a violent assault. It may be that Dr Joseph went further than he should but we are not persuaded that the expression of his opinions diverted the jury from its task in the light of the judge's direction. It was, of course, always open to trial counsel to invite the judge to direct the jury to ignore evidence that was inadmissible. They did not do so.
33. The third ground is a complaint that the prosecution impermissibly cross-examined the applicant in a way which resulted in hearsay evidence from Angela Burgess that contradicted the applicant's evidence being put before the jury, and the judge then invited the jury to consider this inadmissible evidence.
34. The relevance of Angela (or Angie) Burgess' evidence arose during the course of the applicant's evidence. He said that in the course of the evening of 11 March he had visited his old friend Angela Burgess. Since this visit had never been mentioned before, the prosecution obtained a statement from Angela Burgess and applied to put the contents to him in cross-examination. The judge agreed, provided that the witness was called, presumably under the ex improviso rule. The prosecution put it to the applicant that he was there no longer than an hour and he said he was there for 3 hours. It appears that the prosecution was prepared to call Angela Burgess but the defence "showed no enthusiasm" for this course and the matter was left on the basis of the applicant's evidence.
35. The judge dealt with the matter in this way in the summing-up:

He's described leaving his mother's home and going out of CCTV view west, across Hertford Road, along Turkey Street, through Cocker Road to Elsinge Road where he visited the home of Angela Burgess, an old friend he knows for a number of years. His case is - and I shall review his case later on - that he stayed there for about 3 hours. The prosecution put to him, having taken a statement earlier this week from Angie, that he stayed for less. That's a matter for you to consider.

36. We accept that the judge should not have referred to the statement of Angela Burgess as he did later but we do not regard this as a material misdirection. As my Lord, Goose J, put it in the course of argument, the prosecution point was that he was keeping himself out of the way after he had killed Lyndsey Smith and what he said about his time with Angela Burgess was not relied on as a lie which was subject to the direction at the summing-up page 77G that related to specific lies.
37. We have considered these grounds individually and cumulatively. However, we do not regard them as undermining the safety of this conviction. In the light of the applicant's equivocations as to what happened immediately before the stabbing, the prosecution had a powerful case that he had both assaulted Lyndsey Smith, causing the specific damage to her face, and then stabbed her.
38. It follows that we do not accept that the three grounds of appeal against conviction are properly arguable and the renewed application for leave to appeal against conviction will be dismissed.
39. As we have noted, the judge sentenced the applicant to life imprisonment with a minimum term of 20 years less time on remand. He was aged 42 and had a very poor antecedent history with 29 convictions comprising 84 offences spanning 1988 to 2013. The majority of the offences were for dishonesty but he also had other convictions. In July 1997, he was convicted of arson and sentenced to 18 months' imprisonment. In 1997, he was sentenced to a further term of 18 months' imprisonment for assault occasioning actual bodily harm. In 1998, he was fined for having an article with a blade or point and driving with excess alcohol.
40. In passing sentence, the judge noted that the evidence showed that throughout his 3-year relationship with the victim the applicant had been controlling, jealously possessive and a violent bully. It was an aggravating feature of the case that the murder was committed against a background of serious domestic violence. It was only during periods when the applicant was in prison that his victim was able to recover and flourish, as evidenced in the psychiatric report from Dr Ivan Zammit. However, within weeks of the applicant's release from prison just before Christmas 2015 she had made another half-hearted attempt to cut her wrists. The overwhelming evidence from the witnesses showed that in January and February 2016 he started to batter and assault her again. She was seen with frequent bruises and a black eye, lost hair and a haunted look. She was a vulnerable woman much loved by her family and friends. The judge took into account the moving victim impact statements from the deceased's mother and daughter Megan.
41. The attack on 11 March was dreadful and the documented injuries were significant. The judge concluded that the two of them had both ended up in the kitchen, where the applicant had armed himself with a kitchen knife and had inflicted the fatal injury either in kitchen or in the lounge. The knife had penetrated her body up to its hilt and she died within moments. He had then left her address and resorted to trusted friends and his mother, knowing full-well what he had done and planning a desperate defence.
42. In setting the minimum term, the judge took the starting point of 15 years. He found that there were serious aggravating features. First, the proven history of domestic violence. Second, the very serious earlier assault on 11 March which caused significant injuries to the deceased's head, face and neck. Third, the use of the kitchen knife to case death by stabbing. There was very little mitigation, although the judge accepted that the intention was to cause really serious bodily harm rather than to kill and there was no premeditation or planning.
43. The grounds of appeal take a single point: the judge was not entitled to pass a sentence for an offence unless it had been proved against him either by admission or a verdict - see R v Canavan [1998] 1 WLR 604. The judge, it is said, fell into error in treating as an aggravated circumstance previous violence when it could have been the subject of previous counts on the indictment.
44. We regard this as an unrealistic submission. There were two features of this murder which made it particularly serious: the use of a knife to inflict the injuries and the background of domestic violence. So far as the use of the knife is concerned, nothing more needs to be said. It was not, of course, taken to the scene but it must have been picked up and used to inflict fatal injury. It was a significant aggravating factor.
45. So far as the domestic violence was concerned, the judge was fully entitled to take into account these matters. It was a distinct aggravating circumstance and where it culminated in the victim's murder it was not necessary that it should be the subject of a separate charge and conviction. There was no doubt that she had been subjected to domestic violence. It was accepted in the defence note "Re Admissibility of Evidence" at paragraph 1A: "He was violent to Lyndsey Smith in the course of his relationship with her". The evidence of domestic abuse was extensive and available to the judge and had been traversed in the course of the trial. Witnesses spoke of seeing bruises, cuts, black eyes and other injuries. These were, as we have said, not observed when the applicant was in prison.
46. In autumn 2015, prior to his release, her home had been fortified by those concerned with her safety with a view to preventing him forcing his way back into the flat as she said he had done before. She had frequently sought help from the police only to retract her statements subsequently. On the day of her murder, she had endured a beating prior to being stabbed. The evidence was that she sustained a number of blows, her glasses had been shattered against her face and a bone in her throat was fractured. All this was consistent with a history of domestic abuse.
47. The judge was referred to the authorities that make clear that a background of domestic abuse is an aggravating factor when it comes to setting the minimum term - see, for example, R v Bristol [2012] EWCA Crim 1684 and R v Thomas [2009] EWCA Crim 904.
48. In our view, there is no proper basis for arguing that the minimum term imposed was manifestly excessive. The application for leave to appeal the sentence is accordingly dismissed.