Neutral Citation Number: [2010] EWCA Crim 514
Case No: 2009/01355 C3
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Lewes
Moses J 
T20010437

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/03/2010

Before:

LORD JUSTICE HOOPER
MR JUSTICE WALKER
and
MR JUSTICE NICOL
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Between:

	Christopher Andrew Hunnisett	Appellant	
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	The Crown 	Respondent	

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Mr P Katz QC for the Appellant 
Mr D Martin-Sperry for the Respondent 

Hearing date: 16 March 2010
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Judgment

LORD JUSTICE HOOPER: 
1.	At the conclusion of the hearing we announced that the appeal was allowed, that the conviction for murder was quashed and we ordered a new trial. We now give our reasons which need only be brief in the light of the fact that a new trial has been ordered. 
2.	On 12th June 2002   in the Crown Court at Lewes (Moses J as he then was) the appellant pleaded guilty to conspiracy to prevent the burial of a corpse (count 2). 
3.	On 20th June 2002 he was unanimously convicted of murder (count 1).  
4.	At trial the appellant was represented under a representation order by solicitors and counsel, Miss Greenberg QC and Mr Justin Rouse. He was represented before us by Mr David Martin-Sperry. 
5.	The deceased, Ronald Glazebrook (81) was a retired vicar who lived in St. Leonards-on-sea in East Sussex.  The appellant (then aged 17) had been a lodger at his home since the beginning of 2000.  Over the weekend of 28th/29th April 2001 the deceased disappeared and was not seen alive again. He was reported missing on Monday 30th April 2001. The police carried out an examination of the deceased’s car and boat and found what appear to be blood stains. The appellant and the co-accused Groves were arrested on 5th May 2001 and asked about the deceased’s disappearance. The appellant said he knew nothing about his whereabouts and both of them were released. 

6.	On 16th May 2001 body parts of Reverend Glazebrook were found buried on a small island in the woods at Summer Fields in Hastings. The next day the appellant and Groves were re-arrested.
7.	On 18th May 2001 Groves admitted his part in the disposal of the body and took police officers to Pevensey Marshes where the rest of the body was found.  He also took them to the place at Friston Hill where the body had been dismembered in his presence.   
8.	In interview that day the appellant gave an incredible account of events prior to this death. He told officers that the deceased had been involved in a group of private investigators made up of some 550 people.  Their aim was to stop street crime.  Each member had weapons and surveillance equipment. On the Thursday before his death the deceased spoke about withdrawing from the organisation as he was edgy about the whole matter. A fellow member, a female called Flare, had let herself into the flat on Friday night and the deceased had attacked her. She defended herself and assaulted him. The appellant calmed her down and when they went back to the bathroom they found Glazebrook inside, dead. 
9.	The prosecution case was that the appellant had killed Reverend Glazebrook by drowning him in the bath at about midnight on Friday 27th April. The next day he had cut up his body with a saw.   
10.	The prosecution’s case was that the appellant became angry with the deceased because the appellant knew that he was in danger of being required by the deceased to leave the deceased’s home. The appellant, it was claimed, knew that the deceased was unhappy about his behaviour and wanted him out of the flat. The appellant, so it was claimed, was living a comfortable life and thanks to the deceased had the use of a sailing boat. This was demonstrated by a letter which was found written by the deceased to the appellant’s mother setting out the problems he was having with the appellant and referring to an assault made on him on Wednesday 25th April 2001.  
11.	Jason Groves gave detailed evidence about the steps taken to dismember and conceal the deceased’s body. His evidence about this has no direct relevance to the issues with which this appeal is concerned. Jason Groves also said that the appellant had told him that he had killed the deceased and the appellant mentioned drowning the deceased in a bath. There was some support for this in the evidence of Nathan Cox.
12.	The first post-mortem was conducted by Dr. Djurovic on 18th May 2001 and a second one on 21st May 2001. She found significant bruising of the right eye and above the left jaw, two areas of bruising in the back above the left shoulder and more further down. One of the ribs was fractured. However, these injuries did not cause or contribute significantly to death in their own right. There was no pre-existing natural disease which could have caused or contributed to death. The post-mortem appearance was consistent with death due to drowning but that diagnosis could not be confirmed due to the decomposition of the body.
13.	The applicant gave evidence. He was born on 4th October 1983. He had obtained 11 GCSEs and a Day Skipper qualification.  He left home at the end of 1990 and had been living with the Reverend Glazebrook for about 18 months. He met him when he was a server in the same church. The Reverend had a spare room which he let him have him in exchange for doing odd jobs.   The age difference did not matter and he regarded him as a ‘mate’.   Glazebrook had been annoyed with him for inviting Groves’ round to the flat but their differences had been resolved by the Friday. The applicant had decided, nonetheless, that it was time to move out and he informed his careers adviser of his decision. On Friday evening he and Glazebrook engaged in horseplay by throwing a ball/round candle to each other. The applicant last saw him alive at 10.30 p.m when he was in his pyjamas. The next morning he found him in the bathroom with his head under the water. He had bruising on his forehead. He checked his breathing and tried mouth-to-mouth resuscitation but nothing worked. He started to panic and thought it was his fault that he had died as he had not managed to save him.  He decided to speak to his friend and went looking for Jason. He told him that he had drowned. He did not want anyone apart from Jason to know what had happened but Nathan also found out. He then gave evidence about the dismemberment.
14.	The only ground of appeal relates to evidence which was not placed before the jury.  
15.	The appellant now accepts that he struck the deceased causing him to fall into the bath where he must have drowned.  
16.	The overall effect of the evidence which was not placed before the jury is that the deceased had sexually abused the appellant and that there is a link between the killing and the sexual abuse. 
17.	The evidence not placed before the jury supporting the conclusion that the deceased had sexually abused the appellant and that the killing and the sexual abuse were connected comes from a variety of different sources.
18.	Jason Groves when interviewed by the police said that the appellant had told him that just after the appellant had moved in to the deceased’s house, the deceased had tried to get into bed with him. 
19.	DS (aged 75) states that he suffered sexual abuse at the hands of the deceased in the late 1940’s when he was a church server, aged 11 – 16. He describes receiving lessons from the deceased and being sexually abused during the course boating trips - a feature in the appellant’s account of being abused by the deceased. 
20.	Before the trial and as part of the disclosure process, the defence were given by the prosecution, information which could have led to the taking of a statement from DS. Such a statement was taken only after the trial.  The reasons for a statement not being taken before trial seem clear: as we shall show below the appellant was denying to his legal advisers that he had been abused by the deceased.
21.	We mention in passing that there is other material which casts doubt on the character of the deceased in so far as his sexual proclivities are concerned.
22.	Mrs Christine Baxter who now lives in France and is unwell. The court had been given a letter which she had written on 11 December 2006 and, following a directions hearing, the officer in the case (to whom we are very grateful) has over the telephone taken from her a witness statement. Unfortunately the witness statement remains unsigned in circumstances which remain unclear.
23.	We hope that in the light of the order for a new trial steps can be taken quickly to obtain a signed statement. Mr Katz did not object to us relying on the unsigned statement for the purposes of this appeal.
24.	 Mrs Baxter has known the appellant since the age of 10 and she gave character evidence at the trial. She gives a very different picture of the relationship between the appellant and the deceased than that relied upon by the prosecution at trial. She states that she became very concerned about the deceased’s demands on the appellant’s time and the increasingly heavy responsibility being placed on his young shoulders. She refers to many occasions on which the deceased would in effect demand that the appellant return home to be with the deceased:
The Reverend would telephone him on his mobile phone to tell him 'Dinner's ready, when are you coming home?'; 'I've had a fall and need you to come home immediately'; 'I don't feel well and need you to come home now', 'The dog needs to go out and I don't feel well, come home now', 'Where are you? I need you to pick up some shopping'. I was invariably in the same room as Chris when those calls came through and I could hear every word. Chris always left to return home immediately, and he always portrayed anxiety following such phone calls.
...
I became very concerned about the Reverend's demands on Chris's time and the increasingly heavy responsibility being placed on his young shoulders. My feeling of foreboding was compounded when Chris telephoned me fairly late in the evening on one occasion to tell me he was at the Conquest Hospital A&E Department with the Reverend, who had, fallen and blacked out after phoning him to come home. Chris had been enjoying an evening meal with my husband and me when the Reverend called him to say he did not feel well and demanded that Chris '...come home now'.
25.	She describes how the deceased appeared to be avoiding contact with adults close to Chris and it crossed her mind that he was doing this because they might feel that his intentions were not entirely healthy.
26.	The statement continues:
I noticed a marked change in Chris's health, general well-being and attitude during the period between his 16th and 17th birthdays and I initially attributed much of that change to simply growing up. But I also noted that his visits were less frequent, he became less outgoing, more withdrawn with passing months, less inclined to speak about the Reverend, very secretive, and, most striking, his usual effervescent good humour totally dissolved. He looked strained, constantly stressed or distressed, and he very often appeared to be extremely pale and unwell with a hacking cough and a general look of being physically run-down.
I had the distinctly uneasy feeling that the Reverend had been 'grooming' Chris with presents such as sailing holidays, the purchase of their own boat, a new computer, etc. The Reverend purchased the sailing boat and it was Chris's side of the 'partnership' to sail and maintain the vessel. When I put this to Chris, he told me not to worry about him and that everything was alright. But, I felt that my fears were grounded on the fact that, for the first time in our friendship, Chris could not maintain eye contact with me when I asked him if the Reverend had behaved inappropriately.
I can state with 100% certainty that Chris has never lied to me, and he did not lie to me when I gently questioned him about the Reverend's behaviour, he merely sidestepped my enquiries and I withdrew.
27.	Turning to the period just before the killing, Mrs Baxter wrote: 
Late one afternoon, approximately one week before the Reverend's demise, Chris called in to say he urgently needed to speak with me in private. We agreed a time later that evening, when my husband and son would be watching a jointly favoured television programme, and Chris returned. He looked exhausted, absolutely broken and dissolved into tears when I expressed my concerns for his health and about the changes in him. During the following hour, it was as though a dam had burst. Chris confided to me the countless occasions during the previous year, or more, that the Reverend Glazebrook had made lewd advances and had repeatedly attempted to force Chris into a sexual relationship with him. Chris stated to me that he was unable to sleep in his own bedroom unless he barricaded the door with furniture, there were no lockable doors in the house. On many occasions, Chris could only avoid the Reverend by sneaking indoors and 'sleeping rough' in the cellar of the house. That accounted for his hacking cough, general tiredness and poor health, and the visible strain, stress and distress.
Chris further explained that every time he rejected the Reverend's unwanted advances, they would argue and the Reverend would write a letter (addressed either to his daughter or to Chris's parents) stating that Chris had bullied him. Invariably, the following day, the Reverend would apologise to Chris for his inappropriate behaviour, destroy the letter and ply Chris with more 'apology' gifts and promises. The situation would improve for a short period until the Reverend made further unsavoury and unwanted advances.
28.	Mrs Baxter states that she did mention her concerns to the police and the appellant’s legal team. This is not accepted by the respondent. 
29.	The appellant in a statement describes a history of sexual abuse that led to him striking the deceased as he did.  He says that whilst he was taking a bath late at night (something he did to avoid sexual harassment), the deceased started to touch him sexually. The appellant, so he says, responded by striking the deceased. He denies drowning him. 
30.	We have reports from two psychiatrists, one instructed by the appellant, Professor Eastman, and one instructed by the respondent, Dr Richard Noon. Both describe the appellant’s account of being abused by the deceased. Dr Noon, having compared the various versions of events given by the appellant, states:
From 2005, Mr Hunnisett would appear to have been more open regarding the index offence and this internal consistency may suggest that this [the most recent] is the correct version.  This is a matter for the Courts to decide.
31.	Mr Katz QC rightly accepts that the evidence tending to show the appellant was sexually abused by the deceased is capable of belief as is also, and importantly, the evidence linking the sexual abuse to the killing.
32.	Mr Katz submits that the appeal should be dismissed because there is no reasonable excuse for the failure to adduce the evidence at the trial. The following evidence is relevant to this issue.
33.	Mr Justin Rouse, junior counsel at trial, in a letter states that the appellant’s legal advisers had great doubts about the account being given by the appellant and he was pressed about this. “Despite all our endeavours Christopher Hunnisett was steadfast in his instructions that he had not been involved in any form of homosexual relationship (consensual or non-consensual) on this issue and did not disclose that any sexual abuse had taken place.
34.	Dr Noon wrote:
I would not see the gradual disclosure of the history of alleged sexual abuse as being abnormal and it is possible that the abuse went further than Mr Hunnisett is presently able to admit to.
35.	Professor Eastman expressed the view in his substantive report that it was “more likely than not that the appellant has under-reported the frequency and nature of the abuse of him” due to an inability “to ‘face’ the extent of the abuse.” As to the appellant’s failure to reveal the abuse during the investigation and trial Professor Eastman writes:
 ... given his personality traits, in my view he would have found it unusually difficult to describe what may have been the “the whole narrative” leading up to and including the offence, that is, his sexual relationship with the victim and alleged sexual abuse prior to the killing.
36.	The appellant describes only being able to open up about what happened after the trial and after much thought.
37.	The evolution of the appellant’s accounts about being sexually abused are well set out in the grounds of appeal. The earliest recorded post trial revelation seems to be in 2003. 
38.	To this evidence we add the well known fact that victims of sexual abuse, including male victims,  are often unwilling to make public what has happened to them (see “The Stern Review”, a report for the Home office,  published 15 March 2010). We also take into account the age of the appellant.
39.	Applying section 23(2)(d) of the Criminal Appeal Act 1968 as explained in R v Erskine [2009] EWCA Crim 1425, we must and do have regard to whether there is a reasonable explanation for the failure to adduce the evidence at the trial. Mr Katz accepts that it is not our function to decide whether the sexual abuse alleged by the appellant in fact occurred. In our view the interests of justice in a case of this kind make it both necessary and expedient to receive the evidence which has been placed before us. If we were required to do so we would conclude that we have before us material which is sufficiently cogent to offer a reasonable explanation for the failure to adduce the evidence at the trial. 
40.	Mr Katz submits that the account now given by the appellant of the way in which the deceased met his death is not credible in the light of the earlier accounts given and the other evidence. Mr Katz submits that the appellant must have drowned the deceased.
41.	We do not consider that this is a permissible approach to our task. It is not enough in the circumstances of this case for the respondent to say that the appellant's witness statement does not deal with all the questions the respondent would wish to ask. We add that even if that were a permissible approach, it would not, on the facts of this case, help the respondent. Once it is accepted that there is credible evidence of sexual abuse and credible evidence linking the sexual abuse to the killing, then it must follow that if the appellant drowned the deceased, a verdict of manslaughter by provocation would be open to the jury. Mr Katz did accept, again rightly, that a verdict of murder in the light of the fresh evidence is not inevitable.  
42.	Having received the evidence now before us there is no logical escape from the conclusion that this conviction is unsafe.