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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Odunuga, R. v [2025] EWCA Crim 532 (01 April 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/532.html
Cite as: [2025] EWCA Crim 532

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Neutral Citation Number: [2025] EWCA Crim 532
CASE NO 202401531/B2

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE INNER LONDON CROWN COURT
HHJ KARU CP No: 01MP278623

Royal Courts of Justice
Strand
London
WC2A 2LL
1 April 2025

B e f o r e :

LORD JUSTICE HOLGATE
MRS JUSTICE CHEEMA-GRUBB DBE
MR JUSTICE LINDEN

____________________

REX
- v -
DAVID ODUNUGA

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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk
(Official Shorthand Writers to the Court)

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MR AMJID MALIK KC appeared on behalf of the Applicant
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A P P R O V E D HTML VERSION OF JUDGMENT
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Crown Copyright ©

  1. LORD JUSTICE HOLGATE: On 3 April 2024 in the Inner London Crown Court before Her Honour Judge Karu, the applicant was convicted by a majority of 10 to 2 of murder (count 1) and having an article with a blade or point (count 2). On 4 April 2024 the applicant was sentenced by the same judge to imprisonment for life with a minimum term of 27 years less 191 days on count 1 and a concurrent term of four years on count 2. He applies for an extension of time of 10 days within which to renew his application for leave to appeal against conviction following refusal by the single judge. The applicant has explained the delay. The issue of whether an extension should be granted will turn on whether the proposed appeal is arguable.
  2. The issue in this case is whether the judge erred in ruling that an alternative verdict of manslaughter should not be left to the jury.
  3. On 19 September 2023, Brian Edwards was stabbed and killed outside his home address in Upper Tollington Park, London N4. Prior to his death he had been at his home with two friends. They had smoked cannabis and crack cocaine. In the early hours of the morning Mr Edwards contacted a drugs line and made arrangements to buy more drugs.
  4. Shortly before 4.00 am he received a telephone call and he went outside alone. He was stabbed three times in his thigh and buttock area. He shouted for help repeatedly. One of his friends, Alex Murray heard the shouting and went outside. He saw Mr Edwards bleeding and leaning against a white van on the other side of the road. He was struggling to stay on his feet. There was a male holding a machete 30 to 40 centimetres long, making stabbing motions towards Mr Edwards. He did not back down. He was described as relentlessly trying to hurt the deceased. The attacker saw Mr Murray and made a threatening gesture. Witnesses saw the attacker go to a silver BMW parked nearby, open the door and retrieve something. He put items into a backpack before a sensor light at a nearby property came on and the male made off. The fob for the car fell to the ground. It was not retrieved by the attacker but was found later by the police.
  5. The police also collected CCTV footage from cameras in the local area. The footage showed a lone male heading away from Upper Tollington Park towards Belmont Road, which was the location of the home address of the applicant's mother at number 28. The lone male was tracked turning into Belmont Road. Twenty minutes later that same man emerged from Belmont Road in different clothing, but with the same distinctive footwear. Further CCTV footage was analysed and the man was tracked to Turnpike Lane Station and then back to Belmont Road at 5.45 am.
  6. At 6.00 am the applicant was collected by a taxi driven by Robina Moughal from outside 15 Belmont Road. The taxi had been pre-booked for a round trip to Lancaster Road, which was adjacent to Upper Tollington Park. As they were approaching, the taxi driver came across a police cordon. The applicant directed the taxi driver down different streets and asked the driver to stop three times. He got out each time. He told the driver that he had lost his mobile phone. He asked her to call his number. He gave a number ending in 4165 and said: "I dropped my phone somewhere. I need to see if my phone's still ringing but I don't have another phone." He told her: "Don't show your number and use 141 first." The number rang but no one answered. The phone could not be located and the taxi driver returned the applicant to Belmont Road. Later that day he was captured on CCTV purchasing a SIM.
  7. The drugs line telephoned by Mr Edwards at 3.29am was a number ending in 9558. The Crown's case was that the drugs line was the applicant's and that he had driven in a silver BMW to meet Mr Edwards. The vehicle was found parked outside Mr Edwards' home address. A fob to the vehicle was also recovered close by. The vehicle was insured to the name of an alias used by the applicant to obtain a new driving licence after he had been disqualified from driving. His mobile telephone number ending in 4165 and his email address were linked to the insurance for the car.
  8. The police arrested the applicant on 22 September 2023. He answered no comment to all questions in interview.
  9. The knife used to stab Mr Edwards was never recovered. A small penknife belonging to the applicant was recovered.
  10. A month after his death Mr Edwards' mobile phone was found inside a drain on Lindon Road which was on the route walked by the lone male shown in the CCTV.
  11. To prove its case the prosecution relied upon, in summary, the following:
  12. (i) The evidence of Alex Murray;

    (ii) Evidence read to the court from local residents who saw a male retrieving something from a silver BMW parked nearby and video footage on a mobile phone showing a male figure running towards Lancaster Road;

    (iii) DC Parkinson compiled the CCTV evidence and presented it to the jury;

    (iv) Dr Ben Swift, a consultant forensic pathologist gave evidence about the post mortem of Mr Edwards he had conducted. The deceased had an incised wound to the left mid-thigh, 17 centimetres deep, which transected the femoral vein and damaged muscle. The injury had resulted in a rapid loss of blood, hypovolemic shock and cardiac arrest. The wound was caused by a knife with a single cutting edge. The deceased also had two further incised wounds including one to the lower buttock which was 15 centimetres deep which might have caused some muscle paralysis. The witness could not confirm the order in which the wounds were received. He said that the degree of force used to inflict them was moderate to severe. The deceased's penknife was too small to have been the cause of the injuries;

    (v) Evidence from Robina Moughal;

    (vi) Agreed facts on cell site analysis by Richard Haseler showing the collocation of the drugs line with the applicant's mobile ending 4165. In his opinion the data indicated that the phone had had the same user between 6 September and 19 September 2023.

    (vii) DC Mehta who presented the phone data. The applicant had telephoned EE on 20 September in the afternoon to report the loss of his phone. He was issued with a replacement SIM. A handset recovered from his home on 22 September had a SIM card for the number ending 4165.

    (viii) Agreed facts: firstly that the silver BMW parked at Mr Edwards' address and the key fob recovered nearby had a full DNA profile matching that of the applicant and secondly the applicant's previous convictions for the supply of class A drugs with particulars of those offences. The prosecution's case was that this showed a propensity to commit drug dealing offences and to carry knives.

  13. The defence case was one of alibi. The defendant said he was not present at the scene of the offence. Instead he had been at his mother's address in Belmont Road at the time of the attack. He gave evidence. He spoke about his partner and daughter aged nine months. He said that his mother resided at 28 Belmont Road. He said that he had previous convictions for dealing in drugs but once released from prison had not reverted to drug dealing. That was in the past. He had started a family. He said he was a drug user. He owed £900 to his dealer "Cally". On 18 September he rang Cally who pressured him into giving him his silver BMW in return for a combination of cash, marijuana and repayment of the debt. This transaction took place in the street. He gave Cally the fob to the car. He declined to name that person.
  14. The applicant denied being the holder of the drugs line. He said the 9558 number was Cally's drugs line. After selling his BMW to Cally an associate dropped him off at his mother's house in Belmont Road. He remained there and smoked marijuana. Later that night he wanted to buy some crack cocaine so he looked for his phone and found it was missing. He used his mother's mobile phone to call for a taxi. He wanted to go to Finsbury Park because that was where Cally operated. He did not want to admit to the taxi driver that he was looking for drugs, so he told her that he had lost his phone.
  15. He denied being the driver of the silver BMW at 3.40 am when it was picked up by ANPR in the Finsbury Park area heading towards Upper Tollington. He denied being the male in the video recorded by a local resident or that he was the man who changed his clothes in Belmont Road. He denied going to meet Mr Edwards or stabbing him. He said that he was not involved in his death.
  16. The defence case was that the collocation of the drugs line with the applicant's mobile phone could have been because Cally was either in the company of the applicant or driving in the area where the applicant's phone was.
  17. Mr Amjid Malik KC for the applicant submitted to the judge that there was some evidence on which a manslaughter verdict could properly be left to a jury. He said that the fatal wound was to a non-vulnerable part of the victim's body. The witness had only seen the attacker holding a machete and waving it around, but the attacker did not follow through by stabbing the victim again to a vulnerable part of his body. A jury would therefore be entitled to conclude that the person causing the wound 17 centimetres deep, requiring at least moderate force, had intended to cause only, as one alternative, "just less than serious bodily harm" rather than really serious bodily harm: see paragraph 6 of the written submissions.
  18. The judge ruled that in the absence of any evidence at all about what had happened at the scene between Mr Edwards and his attacker, there was no basis to leave the alternative of manslaughter to the jury. She referred to the guidance in R v Coutts [2005] EWCA Crim 52, [2006] 1 WLR 2154 and R v Hodson [2009] EWCA Crim 1590, [2008] 1 WLR 1615. The judge concluded that on the evidence the only options available to the jury were either a conviction for murder, if they were sure that the applicant had been present and had stabbed Mr Edwards with the requisite intent for murder, or an acquittal if they were not sure that he had been present and committed the stabbing with that intent. Anything else would be asking the jury to speculate on matters that they had not heard any evidence about.
  19. We note that no criticism is made of the judge's summing-up or her written directions to the jury. She directed the jury that if the prosecution made them sure that the applicant's alibi was false, that did not mean that he was guilty of the offences alleged. She told them that the prosecution had to make them sure that the applicant had deliberately stabbed the deceased and that in doing so he had intended either to kill the deceased or at least to cause him some really serious injury.
  20. On the issue of intention, she summarised for the jury factors that they could take into account. They included the weapon used, the force used, the nature of the acts involved, the three stab wounds and other injuries. The jury was instructed that if they were not sure that the applicant had intended to cause at least really serious injury then they must acquit him of murder.
  21. Mr Malik submits that the judge was wrong to rule that an alternative offence of manslaughter should not be left to the jury. We are grateful to him for his very clear submissions, both in writing and orally.
  22. In summary, he says firstly, that if the jury rejected the applicant's defence of alibi, the issue for them should have been whether the attacker of Mr Edwards intended really serious harm as opposed to significant or even serious harm.
  23. Secondly, he says there was evidence to support a lack of intent to do really serious harm. The stab wounds had not been to a vulnerable part of the body. There is little possibility of the attacker deliberately seeking, for example, to target the femoral vein. The eye witness account was that the attacker was three to four metres away from Mr Edwards who was already injured and vulnerable, but the attacker did not take the opportunity to get closer to Mr Edwards or follow through with the machete and to strike an area such as the chest or head. This indicated, he submits, that the attacker was not intent on really serious harm.
  24. Thirdly, the absence of a direction by the learned judge on an alternative verdict of manslaughter meant that the jury was forced to make an unrealistic choice between a conviction for murder or complete acquittal, which unfairly disadvantaged the defendant and made his conviction for murder unsafe.
  25. We have considered the Respondent's Notice filed on behalf of the prosecution resisting this application. We note that before he died Mr Edwards also described the weapon used as a machete.
  26. Discussion

  27. The authorities establish that a judge is obliged to leave to a jury a lesser alternative offence obviously raised by the evidence before the court. That is an alternative which would suggest itself to an ordinarily knowledgeable and alert criminal judge. This is a highly fact-sensitive issue and no benefit is to be gained by seeking to compare the instant case with others considered by this court. In fairness Mr Malik did not attempt to do that.
  28. Here the judge did apply the correct legal test. We conclude that it is unarguable that she erred in the application of that test to the particular circumstances of this case. The two deeper wounds undoubtedly amounted to really serious bodily harm, as the applicant did concede before the judge, according to her ruling. We note that Mr Malik submitted otherwise today, but with great respect to him that submission is untenable.
  29. In these circumstances, was it realistic to suggest that, on the evidence before the jury, the assailant only intended to cause a lesser degree of harm than really serious bodily harm? We think not. At the time of the killing the assailant was engaged in serious criminal activity dealing in class A drugs. He used a particularly dangerous knife. He caused three wounds. They involved at least moderate and possibly severe force. One was 15 centimetres in depth and the other 17 centimetres. The wound to the thigh travelled upwards across the thigh towards the area of the groin. There was also evidence of the deceased having been punched in the eye.
  30. The submission that the attacker did not target a part of the body posing an obvious risk to life, or that he would not necessarily have appreciated that the stabbing to the thigh would sever the femoral vein is, with respect, nothing to the point. The key issue here was not whether the attacker necessarily must have had an intention to kill, as in an allegation of attempted murder, but only an intention to cause really serious injury as opposed to some lesser harm. That was the issue for the jury to focus on, in the context of the evidence about the injuries which were actually caused and without speculation as to why the attacker did not go on to inflict additional and more serious harm. Here the judge was entitled to rule that manslaughter was not an alternative verdict which was realistically available to the jury on the evidence.
  31. In our judgment there was ample evidence to support a conviction on count 1 and it is not arguable that the conviction was unsafe.
  32. We express our gratitude to Mr Malik for the careful submissions he made to us but the outcome is that the application for an extension of time within which to make a renewed application for leave to appeal against conviction must be refused.

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