R Robert David Ekaireb v Criminal Cases Review Commission
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sweeney,Lord Justice Hickinbottom |
| Judgment Date | 29 October 2019 |
| Neutral Citation | [2019] EWHC 2889 (Admin) |
| Date | 29 October 2019 |
| Docket Number | Case No: CO/2487/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 2889 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Mr Justice Sweeney
Case No: CO/2487/2019
Phillippa Kaufmann QC and Mark McDonald (instructed by Swain & Co Solicitors) for the Claimant
The Defendant neither appearing nor being represented
Hearing date: 29 October 2019
Approved Judgment
Introduction
On 19 December 2013, at the Central Criminal Court before His Honour Judge Nicholas Cooke QC and a jury, the Claimant Robert David Ekaireb was convicted of the murder of his wife, Li Hua Cao also known as Lisa Ekaireb (“Lisa”), on or about 23 October 2006. On 7 January 2014, he was sentenced to imprisonment for life with a minimum tariff of 22 years.
He appealed against conviction. Although several grounds of appeal were initially advanced, by the time of the hearing before the Court of Appeal (Criminal Division) only one remained extant, namely that the conduct of his Leading Counsel at trial (Michael Wolkind QC), whom the Claimant dismissed following delivery of his closing speech, was incompetent to a degree that rendered the conviction unsafe. On 16 December 2015, the appeal was refused ( [2015] EWCA Crim 1936). Although the court considered that some of the criticism of Counsel was well-founded, on the entirety of the evidence, it concluded that the verdict was not unsafe.
On 30 June 2017, the Claimant made an application to the Defendant (“the CCRC”) for remittal of his case to the Court of Appeal on the basis of new medical evidence regarding his mental health, notably a diagnosis of Asperger's Syndrome and the effects of that condition on his evidence and presentation at trial. On 18 October 2018, the CCRC issued a provisional decision refusing the application but inviting any further representations; and, on 2 April 2019, after consideration of further submissions and evidence, it issued a final decision on the application not to refer the case to the Court of Appeal.
In this claim, the Claimant seeks to challenge that decision. On 1 August 2019, Sir Duncan Ouseley sitting as a Judge of the High Court, refused permission to proceed with the claim on the papers. Phillippa Kaufmann QC and Mark McDonald of Counsel on behalf of the Claimant now renew that application.
The Background Facts
The Claimant was a wealthy jeweller and property developer who lived in North London.
Lisa was a Chinese national, who had gone to Ireland with her brother in 2003 to learn English. She had stayed on, working as a waitress. The Claimant met her in November 2005 in a Dublin lap dancing club where she worked. She soon moved to London, where she moved in with the Claimant. They married in China in July 2006, going through a second marriage ceremony in London on 4 October 2006 by when Lisa was pregnant. They made their home at Flat 9, Pavilion Court, Mount Vernon Estate, Hampstead, which the Claimant owned together with a number of other properties close by.
Lisa went missing overnight on 15 August 2006, which the Claimant reported to the police, referring to a text message from her suggesting she might endanger her own life. When the police found Lisa, she said that she was scared of the Claimant; but, following repeated calls and texts from the Claimant, she agreed to be collected by him and taken home.
She went missing again in October 2006. On this occasion, the Claimant did not contact the police; but, in February 2007, Lisa's brother (who lived in Denmark) contacted the police to say that neither he nor any other member of her family had heard from her since she had telephoned him on 23 October 2006. A police enquiry was commenced, with which the Claimant cooperated giving four interviews. He told the police that his wife had left in mid-November 2006 as she had done on previous occasions. She had not told him where she was going. He said he thought she had returned to lap dancing in Ireland. In any event, by December 2007 the police had concluded that Lisa was “a free spirit… used to travelling… [and] had many short-term relationships”. The investigation was no longer actively pursued.
However, her family not having heard from Lisa in the meantime, a full murder investigation began in February 2012, with the Claimant as the main suspect. The Claimant voluntarily attended an interview, and answered questions under caution. He was charged with Lisa's murder on 7 June 2012.
The Trial
Lisa's body has never been found. There was no relevant forensic evidence: none as to any place or cause of death, none at the Claimant's properties or in his vehicles, none at all. CCTV recordings on the Mount Vernon Estate were only kept for 14 days, and had long since gone. The Crown was thus unable to make any case as to precisely how or when Lisa was killed. Its case against the Claimant was based entirely on circumstantial evidence.
The circumstantial evidence relied upon by the prosecution, and the Claimant's response to it, was set out in detail in the Court of Appeal judgment, as follows:
“ The case for the prosecution
12. The case for the prosecution was based on circumstantial evidence. Many witnesses were called, including [Lisa's] brother and two sisters, those who had known her in Ireland, members of the Chinese community in London, those who dealt with her in relation to her pregnancy and its possible termination, private investigators, those who worked on the Mount Vernon Estate, those who had let Flat 9 Pavilion Court after 2006, those who conducted the missing person inquiries in 2007 and 2012….
13. In terms of seeking to prove [Lisa's] death the prosecution relied generally upon:
i) [Lisa's] lack of contact with her family and friends after speaking to her brother on 23 October 2006. That was out of character. Her brother's evidence was that they were very close and in contact by phone and text.
ii) Her landline, mobile telephone, e-mail account and bank accounts had not been used after October 2006.
iii) Her failure to attend appointments relating to her pregnancy.
iv) The fact that all enquiries seeking to establish proof that she was still alive came to nothing.
v) The failure of the [Claimant] to make any enquires about her or the child which she was carrying.
vi) Lies told by the [Claimant].
14. The prosecution relied upon specific evidence relating to the period before her last telephone call to her brother on 23 October 2006.
i) The [Claimant] had a ‘nasty temper’. He was said to be controlling and disapproving about his wife's past. She had told police in the past that she was afraid of him and that he had assaulted her in August 2006, though she subsequently retracted the allegation.
ii) He was said to be a controlling man who restricted her access to money and to other people. Her brother's evidence was that there had been a change after the wedding as he would not allow her to work and she felt she had no freedom and no friends. The evidence of her sister… was to the same effect; she was afraid of him; she was unhappy and wanted to return to China.
iii) They had a loud argument in China in July 2006, which resulted in bruising to her arm and scratches to his chest. The argument was overheard by [Lisa's] sister…, and was said to be about her desire to leave possessions the [Claimant] had bought her, at her family home in China. Her evidence was that the police had been called, but the case was dropped after it was agreed that monthly payments would be made to her parents.
iv) The [Claimant] was obsessed by her lap dancing past and whether she had continued lap dancing after she became his girlfriend. In late August 2006 he hired a private investigator and in October 2006 contacted polygraph companies.
v) There was evidence of a previous report to police of [Lisa] going missing. The [Claimant] had called police on 15 August 2006 and referred to a text message which suggested she was considering suicide. When police made contact with the wife she told police that she was scared of the [Claimant]. The [Claimant] repeatedly called and texted; she did later agree to be picked up by him and taken home. In contrast in October 2006 he made no effort to telephone her and did not contact the police.
15. The prosecution relied on the following evidence of matters that had occurred on 23 October 2006 as pointing to the killing having occurred then or thereabouts:
i) At 20:00 on 23 October 2006, [Lisa] spoken to her brother. About 3 hours later, a telephone call was made from 9 Pavilion Court to the [Claimant's] mobile telephone. At 23:07, the [Claimant's] key fob was activated allowing access to the car park. At 23:44 and 23:58 the [Claimant] telephoned his parents.
ii) The [Claimant] went out in the early hours of 24 October to a nightclub in London's West End having telephoned the manager of the nightclub at 01:08 from 9 Pavilion Court. A parking ticket was issued to the [Claimant's] father's car at 03:15, near to the nightclub.
iii) The [Claimant] accepted that he was the last person to see her.
iv) The inherent implausibility of the [Claimant's] account of her leaving Flat 9 on the Mount Vernon Estate on a night in October 2006 with her packed bags and no one having heard from her after that time.
16. The prosecution then relied on events after 23 October 2006 as confirming the appellant had killed her:
i) After that night the [Claimant] went to live with his parents and never used the flat again.
ii) He sent text messages pretending to be his wife and asking for the contact details of her former roommate.
iii) He sent a series of text messages to his previous girlfriend; the prosecution suggested he was trying to...
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