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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Christofides, R v [2001] EWCA Crim 906 (11th April, 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/906.html Cite as: [2001] EWCA Crim 906

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R v. Jan CHRISTOFIDES On a Reference by the Criminal Cases Review Commission [2001] EWCA Crim 906 (11th April, 2001)

Case No: 200001908/Z4

Neutral Citation Number: [2001] EWCA Crim 906

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 11th April 2001

R

v

Jan CHRISTOFIDES

On a Reference by the Criminal Cases Review Commission

THE VICE PRESIDENT :

1. On 12th November 1992 at the Central Criminal Court following a trial before the Recorder of London, His Honour Judge Sir Lawrence Verney, the appellant was convicted of murder and sentenced to life imprisonment. Following submissions at the close of the prosecution's case the jury were directed to return a verdict of not guilty of murder against the co-accused Michael Lyons whom the jury acquitted on count 3 of attempting to cause grievous bodily harm to the deceased with intent.

2. In March 1994 and again in January 1997, following a Reference by the Home Secretary, the appellant unsuccessfully appealed against his conviction. In January 1999 he unsuccessfully sought certification of questions for the House of Lords arising from the dismissal of his appeal in March 1994.

3. He now appeals against conviction on a Reference by the Criminal Cases Review Commission dated 28th March 2000.

4. In outline, the facts were that Peter Maffey died on 23rd March 1992 from a pulmonary embolism resulting from a brain injury. This was caused on 17th February 1992 when he was admittedly hit on the head by the thin end of a pool cue wielded by the appellant in a public house. He collapsed outside, and was taken to hospital, but never regained consciousness. There were many witnesses. Not all of their accounts coincided. The appellant admitted delivering one blow to Maffey with the pool cue but claimed this was in self defence. The jury were directed that the appellant must not be convicted if Lyons did something which may have caused the death but he could be convicted if Lyons merely attempted to do something or did nothing.

5. Colin Concannon, the barman gave evidence of the appellant buffeting Maffey at least twice across the forehead using the thin end of the cue which was held in both hands. The striking was severe and the cue shattered. The appellant seemed agitated and angry. Guy Domingo intervened and received a heavy blow on his arm, which, we are told, swelled up to double its normal seize. Lyons appeared to kick Maffey while he was on the floor.

6. Paul Maher said the appellant struck Maffey from behind with a pool cue with great force three times to the back of the head, and the cue smashed. The appellant was very agitated. Lyons aimed a punch at Maffey who fell. It appeared was kicked, but he did not see a kick land.

7. Martin Keane saw at least three two-handed blows with what he described as the thick end of the cue: this did not accord with the breakage of the cue at the thin end.

8. A number of other witnesses saw and/or heard the appellant wielding the cue and it breaking.

9. John Connolly saw Lyons kick Maffey above the waist but he didn't see any contact.

10. A forensic scientist found traces of blood on the appellant's boot and on the lower back of his jeans, consistent with him having his back to someone who was being kicked. The blood could have come from Maffey.

11. There were two linear injuries on Maffey's head, a vertical one consistent with having been caused by the cue and a horizontal one which could have been caused by the cue, a fall or a kick. The jury were directed that they could not convict the appellant of murder unless they were sure that both of those injuries were inflicted by the appellant.

12. In evidence, the appellant said that Maffey confronted him aggressively, offering to fight, uttering abuse and putting his hand behind his back, which the appellant assumed indicated that he was reaching for a knife. The appellant said he pushed Maffey away with the cue in his hand but Maffey advanced again and, believing he had a weapon in his hand, the appellant struck him with the cue in the centre of his head. This was his only blow to Maffey. His second blow struck Domingo and the cue broke at that stage. No knife was ever found. The appellant had a cut to his hand which he claimed was because of Maffey's knife.

13. David Bailey gave evidence for the appellant. He said that Maffey lunged at the appellant and the appellant pushed him back. Maffey stepped forward again and the appellant delivered two quick successive blows with the cue on the top of the head. Domingo intervened and fell over. Maffey banged the back of his head on the fruit machine as he went down. Bailey did not see Domingo being hit or the breaking of the cue.

14. By virtue of s9 (2) of the Criminal Appeal Act 1995 a conviction referred to this court by the Commission has to be treated for all purposes as an appeal against conviction. This means that this court has to consider the grounds of appeal advanced before it. It is not incumbent on the court, once a Reference has been properly made, to examine the Commission's reasons for making the Reference. We mention this matter because, in the present case, only one of the twenty issues raised by the applicant and listed in 8.1 of the Commission's reasons and only two of the six issues identified by Mr Fulford QC on behalf of the appellant and listed in 8.2 of the Commission's reasons have been advanced before us as giving grounds for appeal. Furthermore, although there is reference to Dr Heath, an expert from whom the defence had a report at the time of trial, at several places in the Commission's reasons and the Commission apparently considered the terms of his report, that report has never been disclosed to the prosecution as it would need to be if reliance were to be placed on it under the Police and Criminal Evidence Act 1984 s81 and the rules made thereunder. We also note that no application has been made to this court to permit fresh evidence to be called either from Dr Heath or from any other witness to substantiate any of the alleged factual matters referred to in paragraphs 8.1 and 8.2 of the Commission's reasons. In these circumstances, although it is not for this court to decide how the Commission should conduct its investigations, this case illustrates the advantage which might occur in some cases if the Commission sought under s14(2)(b) of the Criminal Appeal Act 1995, representations from the prosecution in relation to complaints made to it. Prosecution views cannot and should not, of course, determine whether or not a reference should be made but they might be of help to the Commission in deciding whether some complaints should be uncritically accepted and what weight to attach to them.

15. Similarly, this is not a case in which the appellant has waived privilege in relation to matters passing between him and his legal advisors and there can be no basis for according evidential status either to assertions made by the appellant to the Commission or to the contents of Dr Heath's undisclosed report.

16. Four grounds of appeal are advanced on the appellant's behalf by Mr Fulford QC. He did not appear at trial or on the hearing of the two earlier appeals, but he did appear before the court in January 1999 seeking certification of questions for the House of Lords.

17. Grounds 1 and 2 are inter-related in that they arise from the trial judge's ruling, at the close of the prosecution case, that, contrary to the way in which the case had been opened to the jury, there was no evidence of joint enterprise against Lyons and therefore no case for him to answer on murder. Following that ruling the judge rejected an application on behalf of the appellant that the jury be discharged and a retrial ordered. This was made on the basis that the trial of the appellant could not fairly continue. The jury would be told that there was no evidence that Lyons had caused the death, yet the jury knew of the appellant's use of the cue. The judge ruled that the jury was entitled to conclude that the head injury was caused by a pool cue and they could convict the appellant if they concluded that no injury was caused by the co-accused. The judge indicated that he would direct the jury that if they concluded that the co-accused did inflict an injury which contributed to death or were unsure on the point, they must not convict the appellant. Although he makes no criticism of trial counsel, Mr Fulford submits that continuance of the trial placed those representing the appellant in an impossible position: first, in relation to the evidence of prosecution witnesses as to what the co-accused did by way of kicking; and, secondly, in relation to evidence of minute unidentifiable blood spots on the co-accused's boot which the judge, on application by the co-accused's counsel, had ruled to be inadmissible as prejudicial and non-probative in relation to the co-accused.

18. As to the prosecution eye witness evidence in relation to the co-accused, the witness statements of Concannon, Maher, Keane and Connolly all spoke of the co-accused kicking the deceased; but, in evidence, none spoke of seeing any actual contact between foot and victim. Mr Fulford submits that, because that evidence was given at a time when the case against the two defendants was joint enterprise, it would not have been in the appellant's interest for his counsel to seek to elicit in cross-examination the terms of the witness statements. Evidence clarifying or underlining violence used by the co-accused would redound to the disadvantage of the appellant. For, although there was no suggestion that the appellant physically participated in the second part of the incident when the victim was on the floor, the first part, involving use of the cue took place only a matter of seconds before. However, once the case was no longer being presented on the basis of joint enterprise, evidence of kicking by the co-accused would have helped the appellant's case: in particular, had the jury heard evidence suggesting that the co-accused kicked the victim in the head this might well have affected the conclusion as to the appellant's use of the cue causing death.

19. Similarly, once the co-accused was no longer facing a charge of murder and the possibility of him kicking the deceased had become helpful to the appellant's case, it would have been appropriate for the jury to know of the blood spots on the toe of Lyons' boot. The judge, on a re-trial, could have been expected to exercise his discretion in favour of that evidence being admitted because of its potential assistance to the appellant's case despite its absence of probative force in relation to the case against the co-accused.

20. Mr Fulford accepted that, in the 1994 appeal, the issue of discharging the jury was raised as a ground of appeal but rejected by the court. But it was no part of the submission made at that time that cross-examination of the prosecution witnesses had been inhibited in the way which we have described. Mr Fulford accepted that in R v Criminal Cases Review Commission ex parte Pearson 2001 Crim App R 141 Lord Bingham CJ at 149D spoke of the Commission referring cases "on the grounds of an argument or evidence which has not been before the court before, whether at trial, on application for leave to appeal or on appeal". But, he submitted, this issue, namely the impact of a re-trial in relation to cross-examination, has not previously been before the court. Alternatively, he submitted that this is a case of exceptional circumstances such as Lord Bingham envisaged at 149E. Mr Fulford accepted that the point about the effect on cross-examination could have been, but was not, taken at trial. But, he submitted, this court's overriding obligation in accordance with s2 of the Criminal Appeal Act 1968, as amended by the 1995 Act, is to consider whether a conviction is unsafe and, if it is, to allow the appeal.

21. Mr Fulford also accepted that, in the January 1997 appeal, although the principal matter there advanced on behalf of the appellant related to new medical evidence, counsel had raised the issue of the case being conducted differently at trial. However, that did not extend to any analysis of the terms of the witness statements and the question of discharging the jury was not raised in the course of that appeal.

22. The third ground advanced by Mr Fulford was critical of the judge's summing up in relation to self defence in four respects. First, he submitted that it was insufficient for the judge to direct the jury that the prosecution must satisfy them that what was done was not self defence and that if the prosecution did not satisfy them that what was done was or may have been self defence that was a complete answer. Mr Fulford referred to Abraham 57 Crim App R 799. Secondly, he submitted that, in a passage at page 24 of the summing up when rehearsing the appellant's evidence that he used the cue as a reaction to the threat of a weapon which he believed to be in Maffey's hand, the judge, in saying "if that is right" undermined the direction earlier properly given, by removing the significance of the defendant's belief as to what he honestly and instinctively thought was necessary. Mr Fulford referred to Palmer 1971 AC 814. Thirdly, Mr Fulford was critical of the judge's suggestion that the second blow striking Domingo might be inconsistent with self defence and of his failure to remind the jury of the appellant's evidence that the second blow was only aimed because Maffey had lunged at him again. Fourthly, although the judge reminded the jury of the appellant's evidence that his hand was cut before he struck any blow with the cue and that no other witness saw the cut in the public house the judge overlooked the fact that there was other evidence of a cut.

23. The fourth ground advanced by Mr Fulford was that, in relation to the directions as to intent, this was an exceptional case which required a direction in accordance with Nedrick 83 Crim App R 267 and Woollin 1999 1AC 82 that the jury were not entitled to find the necessary intent unless they felt sure that serious bodily harm was a virtual certainty as a result of the defendant's actions and that the defendant appreciated that this was so.

24. It is convenient to deal with these grounds in reverse order. With regard to ground 4, we do not accept that any special direction of the kind for which Mr Fulford contends ought to have been given. It seems unlikely that the jury would have overlooked the evidence that blows were struck with the thin rather than the thick end of the pool cue. And, in our judgment, heavy blows to the head with a piece of wood do not fall into an exceptional category which requires a special direction.

25. As to the third ground, we reject the criticisms of the directions on self defence. A careful reading of the summing up shows that the learned judge's references to the evidence in relation to the second blow and the cut were accurate and comprehensive. As to his legal directions, it is expressly plain from page 5 of the summing up, which can have preceded the judge's directions in relation to self defence by only some 4 or 5 minutes, that by "satisfied" the judge meant "satisfied so that you can feel sure". When the judge was dealing with self defence the jury cannot have believed that, in using the word satisfied, the judge meant anything other than "sure". In a passage from page 9D to 10B of the summing up the judge gave an impeccable self-defence direction, including a reference to the defendant's belief, in accordance with Palmer, and he specifically referred to doing no more than what the defendant "honestly and instinctively thought was necessary for his own defence". He made it clear that the burden of disproving self defence lay upon the prosecution and he repeated that direction at page 30 towards the end of his summing up. In our judgment there was nothing in his reference to belief when rehearsing the defendant's evidence which in any way undermined the full and proper legal directions which he gave. We add that we are, accordingly unsurprised that, on neither of the two earlier appeals, did this court or counsel make any criticism of the trial judge's legal directions to the jury.

26. As to the first two grounds, Mr Bevan QC who, at trial and on all previous occasions when this case has been before the Court of Appeal, has appeared on behalf of the prosecution, submitted that the case against Lyons on murder was never very strong and was never put on the basis that he caused the death. The case was opened to the jury on the basis that it was unlikely that a kick from Lyons had killed the deceased. It was the prosecution case that the appellant killed him. It would have been tactically disastrous for those representing the defendants to conduct a cut-throat defence. It was the appellant's case at trial, both before and after the judge's ruling there was no case on joint enterprise against Lyons, that he acted in self defence against Maffey's aggression. Now, safe in the knowledge that Lyons has been acquitted, he is seeking to run a cut-throat defence in reliance on the prosecutions witness's statements, the terms of which are not, and might never have become, evidence. The appellant, having made a tactical decision at trial not to promote evidence of Lyons' misbehaviour is not entitled now, years later, to pursue a different defence. Mr Bevan relied on a passage in the judgment of Lord Bingham CJ in ex parte Pearson at 146C:

" The decision making tribunal must reach its decision on the argument and evidence deployed before it at a final, once for all, trial. The defendant may quite properly put forward defences cumulatively and alternatively at a single trial, but not serially at different trials."

Mr Bevan submitted that, although there has been no waiver of privilege, it must have been the appellant's case at trial that his co-accused did nothing and, after the judge's ruling, the appellant's evidence was that he did not see Lyons do anything. The appellant does not seek the recall of witnesses for the purposes of this appeal. Their statements are not evidence. There was no reason for counsel for the appellant at trial to seek to recall the witnesses after the judge's ruling because it still remained tactically undesirable to conduct a cut-throat defence. The appellant's instructions at trial must have been that the aggressor was Maffey and, now that this has been rejected by the jury, it is quite inappropriate to permit the appellant to advance a defence that the death was due to what Lyons did.

27. As to the minuscule drops of blood on Lyons' boot, Mr Bevan submitted that this was neutral and not probative. He accepted that, if the appellant were tried alone, that evidence would, no doubt, be admissible. But if the jury had been discharged there was no basis for separate trials and, on a joint retrial, the evidence would still have been excluded.

28. The resolution of this appeal is by no means free from difficulty. In common with the two previous constitutions of this court which have heard appeals in this case, we find no fault with the summing-up.

29. The second appeal was based on fresh medical evidence. Having heard from a number of expert witnesses, the court made findings of fact as to the number and cause of the wounds on the deceased's head. The court concluded that there was no reason to regard the appellant's conviction as unsafe because the jury's acquittal of Lyons meant, in the light of the direction which they had received, that only the appellant could have caused the deceased to fall and the fatal injury to his head. It seems to us that the matters before the court, on that occasion, and on the subsequent application to certify questions for the House of Lords do not bear on the merits of the present appeal.

30. However the first, like the present, appeal was based, in part, on a challenge to the judge's failure to discharge the jury. Generally speaking, once such a ground has failed, it is not open to the appellant to pursue it on a subsequent occasion ( see per Lord Bingham CJ in ex parte Pearson at 149D). Mr Fulford seeks to meet this difficulty on the basis that the present criticism of the judge's failure to discharge the jury is based on a new ground namely the absence, in practical terms, of the opportunity to cross-examine prosecution witnesses on their statements which attributed serious violence to Lyons. We do not accept Mr Bevan's submission that we should not regard the contents of those statements as evidence, for we do not think it right to assume that, if cross-examined, none of those witnesses would have given evidence in accordance with their statements: if such evidence had been given, it might, in our judgment, have affected the view which the jury took about Lyons' behaviour.

31. However, this is not the end of Mr Fulford's difficulties. The potential impact of this evidence was not a ground on which the trial judge was invited to discharge the jury. It follows that it is not possible to criticise the judge for failing to discharge the jury on a ground not advanced before him. Furthermore, it is not usually possible to found a ground of appeal to this court on matters not canvassed below in circumstances in which, expressly, no criticism is being made of trial counsel. The difficulty is compounded in the present case because, there having been no waiver of privilege by the appellant, this court simply does not know what his instructions (if any) were at trial in relation to cross-examination of prosecution witnesses or the co-accused with a view to underlining the co-accused's violence. The question which arises in this context is whether the appellant is now seeking to do that which he may not, namely, advance a defence different from that which he advanced at trial. (See for example Gautam 1988 Crim LR 109 and per Lord Bingham CJ in ex parte Pearson at 146C).

32. Not without considerable hesitation, we have reached the conclusion that the appellant's conviction cannot now properly be regarded as safe. The trial judge's ruling that there was no case for Lyons to answer on murder, because of the absence of evidence of joint enterprise seems likely to have been unexpected and significantly altered the case which the appellant had to meet. During the course of the prosecution case, he risked conviction for murder either on the basis that the pool cue alone had caused death or on the basis of the joint enterprise developing thereafter by reasons of Lyons' activity. Following the judge's ruling, the case against the appellant was dependent on his use of the pool cue, the causative effect of which, in relation to death, would be negatived, on the way in which the judge directed the jury, if the jury thought Lyons had done anything to contribute to the death. As, according to his evidence, the appellant himself did not see Lyons doing anything, it was all the more important to his defence for evidence to be placed before the jury from such prosecution witnesses as could speak of Lyons landing kicks on the deceased. It is also to be noted that the judge's ruling in relation to Lyons puzzled the jury: they sent a note asking whether this was due to lack of medical evidence or lack of evidence of witnesses. Furthermore, having ruled that Lyons had no case to answer on murder, the judge was not invited to re-visit his ruling as to the inadmissibility of the evidence about blood on Lyons' boot. If he had been so invited, we think it distinctly possible that particularly if further cross-examination of prosecution witnesses was to take place, he would have permitted evidence of the blood to be admitted.

33. In our judgment, this is not a case in which it can properly be said that the appellant is now seeking to run a different defence. His defence at trial, which the jury rejected, was that the deceased was the aggressor. Although there would have been nothing inconsistent with that defence for causation also to have been run, it seems to us understandable why it was not run during the prosecution case. When, as a result of the judge's ruling, the case against the appellant was pursued solely on the basis of his use of the pool cue, the witnesses in relation to Lyons' conduct had already given evidence. They were not recalled, although, as we have sought to explain, if cross-examined about their witness statements they might well have given evidence implicating Lyons in causing the death. The jury were therefore deprived of such evidence which they might have thought exculpated the appellant.

34. In these circumstances we have a sense of unease which drives us to conclude that the jury's verdict in relation to the appellant is unsafe. Accordingly, this appeal is allowed and his conviction for murder is quashed.