No. 2005/06398/C2

Neutral Citation Number: [2006] EWCA Crim 1705
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  23  June  2006

B e f o r e:

LORD  JUSTICE  KEENE

MR  JUSTICE  CRANE

and

SIR  JOHN  BLOFELD

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R E G I N A

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DAVID  BROADHEAD
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MR M SWIFT QC appeared on behalf of THE APPELLANT

MR J GOSS QC appeared on behalf of THE CROWN
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J U D G M E N T

Friday  23  June  2006

LORD JUSTICE KEENE:  
1.  On 15 November 2005, in the Crown Court at Hull, before His Honour Judge Mettyear, the appellant was convicted of the murder of Peter Hickinbottom.  He now appeals against that conviction by leave of the single judge.

2. There were three co-defendants.  Two of them, Carl Fullard and Jeanette Hutchinson, were also convicted of the murder.  The other, David Quigley, was acquitted.

3.  The sole ground of appeal is that the judge wrongly rejected a submission at the close of the prosecution's case that there was no case to go to the jury.  

4.  There was no dispute that on 4 August 2004 Peter Hickinbottom was found dead at 107 Redmire Close, Hull, of which property Alan Wass was the tenant.  The deceased had suffered multiple injuries.  The house was a drinking den.  On that day Hickinbottom, the appellant, and the co-accused, who were all alcoholics and regular visitors to the property, were there at some stage drinking.

5.  The first person to see the deceased apparently dead was Maxine Hill.  She went into No 107 and saw him lying on the floor.  There were two other people there, the defendant Fullard and the tenant Wass.  There was no evidence that Maxine Hill saw the appellant present.  She went over to Hickinbottom because she was concerned about him.  She felt for a pulse, but she could not detect one.  Jeanette Hutchinson came in from the back door, booted the body and said it was "Higgy".  Maxine Hill's evidence was that she said that he needed an ambulance.  Hutchinson told her that it was nothing to do with her and to mind her own business.  Nonetheless, an ambulance was called.

6.  George Mitchell, the boyfriend of Jeanette Hutchinson, lived across from No 107.  He also gave evidence for the Crown.  He returned home at 7.35pm and he saw a man lying in the garden of No 107 Redmire Close in the ashes of a fire.  The man lying in the garden was wearing shorts.  The defendant Fullard, he said, was sitting with the guy's head in his knees.  Mitchell said that he called to Fullard, asking what was wrong and received the response, "He's fell".  Mitchell then went into No 107 and felt for the man's pulse.  The body was cold and he could not feel a pulse.  Mitchell told Fullard that the guy was dead.  There was no response from Fullard.  Mitchell said that he then went to the door of the property and said, "You've got a dead guy lying in your garden".  Wass, Quigley and the appellant were sitting in the room.  The appellant said nothing, but he went into the garden and felt Hickinbottom's pulse.  Mitchell gave evidence at trial that Quigley said, "We've fucking killed him".  In cross-examination he accepted that he was not sure that he told the police that.  It was not in his witness statement and the officer who took the statement was called.  She said that if he had said that to her she would have recorded it.  In any event Quigley did not identify who he meant by "we".  Mitchell said that he went back to his own home and rang the police.  Jeanette Hutchinson came in, as did the appellant.  She started to change her clothing.  According to Mitchell, the appellant said to her something like, "Better get a story together with me".  (It may have been not "a story" but "your story"; Mitchell gave a number of slightly differing accounts of what was said.)

7.  The appellant and Jeanette Hutchinson left the immediate area.  She gave herself up the next morning.  It was an agreed fact that the appellant was arrested on 6 August, that is two days after the murder.  Before that, according to George Mitchell, he (Mitchell) spoke to his girlfriend by telephone and tried to persuade her to give herself up.  He could hear the appellant in the background telling her to put the phone down.

8.  The Crown's evidence also established, first, that the room where the defendants had been stank of alcohol and a great deal of drinking seems to have been going on; second, that there was extensive blood splattering in that room (the lounge) on the walls, on the floor and on one of the settees; third, that the deceased's blood was found on Hutchinson's clothes and trainers and on both Fullard's and Quigley's; fourth, that the only blood found on the appellant was his own on a shoelace (there was no indication that they had been cleaned); and fifth, that when the appellant was examined on 6 August by a doctor there were "trivial" scrapes on him, "nothing unusual at all".  The appellant made no comment at interview.

9.  It will be seen from this brief summary of the Crown's evidence that there was no forensic evidence implicating the appellant -- indeed, no direct evidence of any kind.  The Crown relied on circumstantial evidence for its case that the appellant had participated in a joint attack on the deceased.  It was hampered by the fact that none of its evidence established that the appellant was even present at the time of the attack on Hickinbottom, although he was with Wass and Quigley in the lounge by the time Mitchell saw Fullard in the garden with the body.  (Wass was not a defendant and Quigley ultimately was acquitted.)  

10.  Unsurprisingly, an application was made on behalf of the appellant at the close of the Crown's case that there was insufficient evidence for the matter to go to the jury.  The judge rejected that, relying largely on reasons which he had set out in an earlier ruling dealing with bad character evidence.  Those reasons referred to various pieces of evidence.  Those were as follows: (1) the appellant's presence at the house in the late afternoon/early evening; (2) the lack of reaction from the appellant to George Mitchell saying, "You have got a dead guy in the garden"; (3) the lack of reaction from the appellant to Quigley saying (according to Mitchell), "We've fucking killed him"; (4) the evidence of the appellant's comment to Jeanette Hutchinson, which the judge recounted as "You had better get your story together with me"; (5) the evidence that the appellant left the scene with Hutchinson and in effect went on the run (though not very far, or for very long); and (6) the appellant's failure to give any explanation in interview.  Put that together, said the judge, and there was a case to answer.  A jury could properly conclude that the only explanation was the appellant's joint responsibility for the attack on the deceased.

11.  That ruling is now challenged by Mr Swift QC on behalf of the appellant.  He submits that at the close of the Crown's case there was no evidence that the appellant had even been in the room when the deceased was attacked and killed.  Maxine Hill did not see him there on her visit, which appears to have been earlier than when George Mitchell turned up.  The evidence of the appellant's acts and words, submits Mr Swift, was not capable of establishing that the appellant was either present at the time of the fatal attack or took part in it.  Such evidence as was before the jury at the close of the Crown's case was incapable of supporting any proper inference that the appellant was either present or took part in such an attack.  Reliance is placed on the well-known case of R v Galbraith 73 Cr App R 124 and the proposition at page 127, where Lord Lane CJ said:

"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."

Mr Swift submits that there was important negative evidence which the judge should have taken into account, including the evidence that there was no blood found on the appellant's trainers (save his own), which contrasts markedly with the situation of the other defendants.  Those trainers were grubby, so there was no indication that they had been cleaned.  Particular emphasis is placed on the fact that Maxine Hill did not see the appellant present.  Moreover, Mr Swift confirms that the summing-up accurately sets out the tenor of his cross-examination of the prosecution witnesses and indicates that he did not put in cross-examination any specific and positive case on behalf of the appellant to the Crown's witnesses.  That means, he submits, that no adverse inference could be drawn from the appellant's silence at interview.

12.  For the Crown Mr Goss QC accepts the test laid down in Galbraith, but submits that it was met.  He draws attention to the evidence of George Mitchell that the appellant was a regular visitor to the house.  He was there when Mitchell put his head in the door that evening.  It could properly be inferred, therefore, that he had been there earlier.  Mr Goss relies on those items of evidence referred to by the judge in his ruling, which we have set out earlier in this judgment, together with the evidence of the appellant telling Jeanette Hutchinson to hang up when Mitchell was speaking to her on the telephone.  The jury therefore could properly infer participation in the attack from those words and actions, along with the appellant's lack of reaction at the scene and his flight from it.  No explanation had been provided by the appellant at interview for his actions and words.  They therefore remained unexplained.  That is a matter which the judge could take into account.  It is not a question, submits Mr Goss, of the judge drawing an adverse inference from the silence at interview.

13.  In its written argument the Crown sought also to rely on evidence subsequently given by the co-defendants at trial when they gave evidence after the close of the Crown's case and the rejection by the judge of Mr Swift's submission.  That point has not been pursued orally by Mr Goss this morning.  For reasons which we will give later, it appears to us that he is right not to have sought to pursue it.

14.  We would make three preliminary points.  First of all, a conviction can, of course, be founded purely on circumstantial evidence.  Nonetheless, if there is no direct evidence of the commission of the offence by a defendant, the case against him is necessarily likely to be weaker.  Secondly, we do not accept that it is proper on an appeal based upon an allegedly erroneous ruling as to a "no case" submission for this court to have regard to evidence subsequently given at the trial in the course of the case for the defendant or co-defendants.  It is true that the test now under section 2 of the Criminal Appeal Act 1968 (as amended) is whether this court thinks that the conviction is unsafe.  But the clear weight of authority is in favour of the proposition that such an erroneous ruling must render the conviction unsafe because it follows that, but for the ruling, the jury's verdict would have been different.  It would have been to acquit the defendant on the direction of the judge.  As this court said in R v Patrick Smith [1999] 2 Cr App R 238, 242D:

"The defendant was entitled to be acquitted after the evidence against him had been heard."

We agree with that.  We therefore approach the present case on the basis that we do not have regard to such evidence as was given as part of any defence case.

15.  Thirdly, credibility is certainly a matter for the jury.  Consequently, even though George Mitchell had not mentioned in his witness statement anything about Quigley saying "We killed him", it was for the jury to decide whether they accepted or rejected that part of Mitchell's evidence as given at trial.  That is what is meant by taking the prosecution's case at its highest.

16.  We turn to the substance of this matter.  There is no doubt that the Crown's case against the appellant was a weak one.  There was no forensic evidence against him -- indeed no direct evidence of any kind.  The case depended upon circumstantial evidence and on the drawing of inferences from that evidence.  The issue now is whether a jury properly directed could not properly convict on it.

17.  One of the most overworked phrases used by defence advocates at trial when making a submission of no case is that derived from the decision in R v Shippey [1988] Crim LR 767 about not "picking out all the plums and leaving the duff behind".  Overused it may be, but Turner J's celebrated words in that case embody a valid and important point, and one which is relevant to the present appeal.  The judge's task in considering such a submission at the end of the prosecution's case is to assess the prosecution's evidence as a whole.  He has to take into account the weaknesses of the evidence as well as such strengths as there are.  He needs to look at the evidence at that stage in the trial in the round therefore.

18.  In the present case we note that the judge made no reference in his ruling to any such weaknesses.  It is right that there was evidence that the appellant was a regular visitor to the house.  But not only was there no evidence that he was there for any appreciable time before George Mitchell's discovery of the dead body, there was also the evidence of Maxine Hill that she did not see the appellant there when she visited earlier, when it seems that Hickinbottom may well already have been dead (certainly she could feel no pulse).  Next, the judge makes no reference to the evidence that the room in question was heavily splattered with blood.  There was blood on the walls, to some extent on the floor, and on one of the settees.  Yet the only blood on the appellant was his own on a shoelace.  There was no evidence that his trainers or indeed his clothes had been cleaned.  It is said that he was only arrested two days after these events, but, nonetheless, that was the situation with which the prosecution had to deal.  Nor were there any significant marks of physical conflict on the appellant when he was examined by a doctor.  

19.  The judge was inaccurate in saying in his ruling that there was no reaction from the appellant when Mitchell said to those present words to the effect of "You've got a dead guy in the garden".  The evidence of George Mitchell was that the appellant got up and went out into the garden, where he felt Hickinbottom's pulse.  It also seems to this court that some account is to be taken, when considering the appellant's reaction or lack of reaction to such comments, of the fact that he was an alcoholic and seems to have been drinking that day.  One would not necessarily expect such a person to react in quite the same way as might an ordinary, sober person.

20.  From a reading of his rulings, it appears that the judge may have sought to rely on the appellant's silence in interview as going to help to make out a case to answer.  Section 34(2)(c) of the Criminal Justice and Public Order Act 1994 certainly allows the court to draw adverse inferences from such silence when determining whether there is a case to answer.  But section 34 only applies where a defendant, on being questioned under caution or on being charged, fails to mention a fact relied on in his defence.  If a defendant at trial merely puts the prosecution to proof of its case there is no reliance on a fact for the purposes of section 34: see R v Moshaid [1998] Crim LR 420.  It may be that during the Crown's case defence counsel may on instructions put a specific and positive case in cross-examination, asserting a particular fact not mentioned in interview or when charged.  In such circumstances section 34 may bite, as the House of Lords held in R v Webber [2004] 1 Cr App R 40.  But that is to be contrasted with merely testing and probing the prosecution case, which will not bring section 34 into play.  Reading the transcript of the summing-up it does not seem to us that the cross-examination of the prosecution witnesses by Mr Swift went beyond the testing and probing referred to in Webber, and that has been confirmed to us today by Mr Swift.  Mr Goss does not seek to say the contrary.  In those circumstances the judge was not entitled to rely on the appellant's silence in interview as support for the Crown's case.  All that he could do was to bear in mind that there was no explanation available to him of the appellant's actions or words.  That cannot in itself add strength to the Crown's case.  To allow that would be to allow an adverse inference to be drawn from the silence.  That is not permissible in the circumstances to which we have referred.

21.  All that leaves are the appellant's remarks to Hutchinson about a story, their both leaving the area, and his telling her to put the telephone down when she was speaking to Mitchell.  It seems to this court that one can well see alternative explanations for such conduct, apart from guilt of participation in the murder.  In particular one would not be surprised if someone in the appellant's position, even if innocent, felt considerable anxiety about a dead body being found in his presence and thought that he might well be suspected.  That inference -- one in the appellant's favour -- would be a proper one to be drawn from his leaving the immediate area and possibly from his cutting short Jeanette Hutchinson's telephone call.

22.  Looking at the matter overall, we have concluded that there was so little evidence implicating the appellant in the attack that no reasonable jury could properly have convicted on the evidence as it stood at the end of the Crown's case.  They would have had to be sure  not merely that he was present at the time of the murder but that he had participated, at the least by encouragement of others if not more.  No jury could properly have been sure of that on the state of the evidence at the end of the Crown's case.

23.  It follows that the defence application at the end of the Crown's case should have been granted.  Accordingly this appeal succeeds and the conviction of the appellant for murder is hereby quashed.

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