R v Goring (Curtis)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOORE-BICK,Lord Justice Leveson |
| Judgment Date | 13 January 2011 |
| Neutral Citation | [2011] EWCA Crim 2,[2010] EWCA Crim 1240,[2010] EWCA Crim 145 |
| Docket Number | Case No: 2009/01425/D3,No: 200901425 D3,No: 200901425 D3, 200901291 D3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 January 2011 |
[2010] EWCA Crim 1240
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Aikens
Mrs Justice Slade DBE
HHJ Wadsworth QC
(Sitting as a Judge of the CACD)
No: 200901425 D3
MR D D'SOUZA appeared on behalf of the Applicant
LORD JUSTICE AIKENS: Mr D'Souza, we are going to give you your leave. I think I should give a short judgment just to explain to the court that hears this appeal the basis upon which we are granting leave.
This is a renewed application for leave to appeal conviction after a refusal by the single judge. On 12 February 2009, in the Crown Court at Sheffield, after a trial before Beatson J and a jury, the applicant was convicted of murder by a majority and of possession of an offensive weapon, also by majority. Subsequently, the applicant was sentenced to life imprisonment with a minimum term of 21 years less time spent on remand on the murder Count. He was made the subject of a concurrent sentence of 18 months for Count 4 and a further Count of affray. Subsequently, the Court of Appeal Criminal Division allowed an appeal against sentence on Count 1 and substituted a minimum of 18 years (less time spent on remand).
There was a co-accused called Danny Hockenhull who was also convicted of murder and of possessing an offensive weapon. There were two other co-accused.
The murder of the victim —because there can be no doubt that the victim was murdered by somebody —took place in the early morning of Saturday 7 June 2008, in a nightclub in Sheffield. The deceased, Brett Blake, arrived at the club around 2.25am on the Saturday morning, 7 June 2008. There was a background of bad feeling between the applicant and Hockenhull and the deceased. The deceased went to the upper dance floor on his arrival. There there was a confrontation with the co-accused, Hockenhull. Hockenhull was seen on CCTV to aim a blow at the deceased's neck before the two were separated. The blow to the deceased's neck was said by the Crown to have been a fatal stab wound which breached the deceased's jugular vein.
After the incident on the upper dance floor, Goring, whom we will now call the appellant, was seen on CCTV to be moving towards the deceased. It was said, and was part of the Crown's case, that the appellant was seen to have a shiny object in his hand, which the prosecution alleged was a knife. Some few seconds later, the appellant was seen to move into a position adjacent to a large speaker on the lower floor of the club, by a corridor; in other words some long way away from the upper floor. The Crown's case was that the appellant was seen to strike towards the deceased's midriff with his right hand. No knife was visible. The Crown's case was that that was a fatal stab wound to the front of the deceased's abdomen.
The deceased died later that morning, at about 4am, having been taken to hospital.
There was evidence before the jury from three employees of the nightclub. These were Mr Blair, Mr Holmes and Mr Derbyshire. Their evidence was that the deceased was seen by them to be bleeding from the stomach. Their evidence was that they had seen this before the deceased left the upper floor of the nightclub.
At the close of the Crown's case, Mr D'Souza, on behalf of the appellant, made a submission of no case to answer. At that stage the judge did not have transcripts of the evidence of the three Crown witnesses we have mentioned. It was Mr D'Souza's submission that the case against the appellant must be stopped on the basis, in particular, of the evidence of Messrs Blair, Holmes and Derbyshire. The answer of the prosecution to that submission was that the incident where, Mr Blair in particular, saw the victim clutching his stomach which he, Mr Blair, said was because he was sure the victim had been stabbed, was a later encounter. Leading Counsel for the prosecution submitted that the jury would be entitled to decide what Mr Blair saw was a later encounter.
The judge ruled against the application of no case. The judge accepted, amongst other things, that the submission of leading counsel for the Crown as to the effect of Mr Blair's evidence in particular, that this was something he had seen after the victim emerged from the speaker area down the corridor, ie after, on the Crown's case, the appellant had stabbed the victim in the stomach, was something which the jury could accept.
Subsequent to the ruling on the submission of no case, the judge and counsel were given the transcripts of the evidence of Mr Blair and that was studied. Mr D'Souza invited the judge to reconsider his ruling on the basis that there was no possibility, when one examined the transcript of the evidence of Mr Blair, of it being put to the jury that Mr Blair's evidence was or could be that he had seen the victim clutching his stomach at a later stage.
The judge decided that he would not review his ruling. The trial proceeded and the judge summed up.
We have come to the conclusion that the application for leave to appeal must be allowed in respect of all three grounds. We do so upon this basis: it was the Crown's case that there were only two wounds from which the victim died. Both were said to be causally fatal. First in time was the wound in the neck which took place, as we have said, when the CCTV recorded it, when the accused Hockenhull, was seen on the CCTV to aim a blow at the deceased's neck when on the upper dance floor. The second was a single below to the stomach which, on the Crown's case, occurred after that first incident and on the lower floor near to the speakers. The Crown specifically stated that its case in relation to the first of the stab wounds was on the upper floor and in relation to the second was on the lower floor. On the evidence there was no possibility of there being two stabbings in the stomach. Accordingly, in order for the Crown to convince the jury that the appellant had fatally stabbed the victim in the stomach after the fatal stabbing in the neck, it is at least arguable that the Crown would have had to have satisfied the jury that there was no possibility of any other stabbing in the stomach before the stabbing in the neck. The argument must be (given there was only one stab wound in the stomach) that if there was a possibility that the victim had been stabbed in the stomach before being stabbed in the neck, then how could a jury be sure that the fatal stabbing to the stomach had occurred after the stabbing in the neck, and therefore how could they be sure that the fatal stabbing had been done by the appellant near the speakers?
It seems to us, therefore, that it is arguable that, at the time of the submission of no case, the judge had to ask the question whether, on the evidence that he had, a reasonable jury, if properly directed, could have come to the conclusion that they could entirely exclude the possibility of there being a stabbing in the stomach before the stabbing in the neck. That way of approaching was not, apparently, how the judge did, and it is arguable that that is the way he should have approached it when considering the issue of no case to answer. It is also, in our view, arguable that the judge should have put that point plainly to the jury in his summing up. It is the submission of Mr D'Souza that that was not done.
Mr D'Souza's third point is that there was a irredeemable procedural irregularity because, once the judge had received the transcripts of Mr Blair's evidence, he did not then reconsider his ruling on no case to answer. If he had done so, so the argument runs, then it would have been clear from a review of the evidence of Mr Blair that it was impossible for the Crown to argue, on the evidence of Mr Blair as shown in the transcript, that his evidence was, in effect, that he had seen the victim clutching his stomach after he had emerged from the speaker area down the corridor on the lower ground floor of the dance floor.
Accordingly, we grant leave.
MR D'SOUZA: I am very grateful, my Lord.
LORD JUSTICE AIKENS: Representation order?
MR D'SOUZA: May I ask for that?
LORD JUSTICE AIKENS: Including today?
MR D'SOUZA: Yes please.
LORD JUSTICE AIKENS: For you alone I assume?
MR D'SOUZA: For me alone from now on. Your Lordship may have seen from the documents submitted earlier that my junior at one stage had significant input into all of this, so whether or not legal aid can be granted to cover his preparation of the original grounds is a matter for your Lordships. I would be very grateful if it could.
LORD JUSTICE AIKENS: The only question that is raised on the bench is, have we the power to do that in respect of a second?
MR D'SOUZA: I think your Lordships do, by granting a representation order for both legal and junior counsel. Of course his input from now on and therefore any additional billing on his part will be zero.
LORD JUSTICE AIKENS: It will only be for up to now, and then for you from now on?
MR D'SOUZA: Yes.
LORD JUSTICE AIKENS: I think in the light of the way you put it, you will need to reconsider re-drawing your grounds and I would strongly recommend that you also prepare further written submissions re-casting it in the light of the way that it has been developed today, and you do that as soon as possible so that the Crown can see it and can then respond.
MR D'SOUZA: I will, thank you very much.
LORD JUSTICE AIKENS: Thank you very much indeed for your assistance, and please also thank you your junior for his assistance as well. We are very grateful to you both.
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