R v Paul James Smith
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson |
| Judgment Date | 18 December 2013 |
| Neutral Citation | [2013] EWCA Crim 2388 |
| Docket Number | Case No: 200406710 C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 December 2013 |
[2013] EWCA Crim 2388
Lord Justice Jackson
Mr Justice Holroyde
and
His Honour Judge Milford QC
Case No: 200406710 C4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NOTTINGHAM CROWN COURT
MR JUSTICE ASTILL
T20047477
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Paul Mann QC (instructed by the CPS) for the Respondent
Mr Nigel Lithman QC and Ms Valerie Charbit (instructed by ZMS Solicitors) for the Appellant
This judgment is in six parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The criminal proceedings,
Part 4. The applications for leave to appeal to the Court of Appeal,
Part 5. The application to treat the previous notice of abandonment as a nullity,
Part 6. The application for leave to appeal against sentence.
This is an application by a young man convicted of murder for an order that the previous abandonment of his application for leave to appeal against conviction be treated as a nullity. This application involves strong criticism of counsel who conducted the defence at trial and of other counsel who advised on appeal.
There is also before the court an application for leave to appeal against sentence. An extension of time of seven years, eight months and one week is needed if this application is to proceed.
These proceedings arise out of the tragic death of a ten year old girl at a Christmas party. On any view the killer must have been one of the persons present at the party.
In this judgment we shall refer to the Criminal Justice Act 2003 as "the 2003 Act". We shall refer to the Criminal Cases Review Commission as the "CCRC".
After these introductory remarks we must now turn to the facts.
On 28 th December 2003 Mr Ian Smith and his wife held a Christmas party at their home in Normanton. Their children were present, as was X. There were about sixty guests. These guests included Ian Smith's brother, Nigel, his wife Sue and their son, Paul. The Storrie family were also guests at the party, including their daughter Rosie-May.
Rosie-May was aged 10. X was aged 11. Paul Smith was aged 17.
During the evening the adults generally stayed downstairs. The younger generation were spread more widely around the house.
Shortly after 9 p.m. some of the guests were preparing to leave. Mr and Mrs Storrie did not know where Rosie-May was, so people went to look for her. X found Rosie-May lying face down on the bed a bedroom. She was unconscious and naked to below her buttocks. X summoned others.
It was soon realised that Rosie-May's situation was serious. She was very pale and there was a blue/purple band across her eyes. Mrs Storrie and Mrs Sue Smith, who were both nurses, attempted resuscitation while an ambulance was being called. Rosie-May was taken to hospital, where attempts to revive her failed. She was pronounced dead on the following day.
Suspicion fell upon Paul Smith for a number of reasons. These included the following eight matters.
i) Witnesses had seen Paul and Rosie-May together on occasions during the evening.
ii) Mrs Storrie recalled that at one point in the evening she was in the study, while Rosie-May was playing a game on the computer there. Paul Smith came into the room and said that he felt like a sexual being.
iii) There was a beer can in the bedroom which bore the fingerprints of both Rosie-May and Paul Smith.
iv) Some witnesses said that Paul Smith had gone missing shortly before Rosie-May was found. Paul Smith accepted having gone upstairs at about this time, but said that his purpose was to use the lavatory.
v) Both Y and Z said that they saw Paul Smith near to the bedroom shortly before Rosie-May was found.
vi) DNA was found in Paul Smith's fingernail scrapings which probably came from Rosie-May.
vii) Paul Smith washed his jeans after the party and before they were seized by the police.
viii) Paul Smith suffered from Asperger's Syndrome, as a result of which he had had behavioural problems. There were said to be two previous occasions when he had attacked teenage girls, namely A and B. Paul Smith admitted the first incident but disputed the second incident.
We should say a little more about those two previous incidents. The incident which Paul Smith admitted occurred on 5th June 2002. A family friend A (aged 16) went round to Paul Smith's address and saw him. He proceeded to point an air rifle at her and told her to lie on the floor. When she did not comply, he pushed her onto the bed and tied her wrists together. He then tied up her feet with duct tape, wrapped tape around her head and mouth and threw her into the boot of his father's car. He drove off but later stopped. He let her out of the car, said he was sorry and drove off.
The incident which Paul Smith denied was said to have occurred at his sixteenth birthday party on 8 th January 2002. B says that she was a guest at that party and she was watching television with Paul in his bedroom. Suddenly he pushed her face down onto the bed. He held her there with both hands on her shoulders. B says that Paul tied her hands behind her back with soft rope-type material and blindfolded her. He said "where's your money?". The incident lasted about ten minutes. He prodded her with a metal object. B was frightened and never wanted to be alone with Paul again.
The police arrested Paul Smith on 29 th December 2003. In interview he denied having been involved in any way in Rosie-May's death. In due course the police charged Paul Smith with the murder of Rosie-May Storrie.
Criminal proceedings then followed.
The defendant stood trial at Leicester Crown Court in October 2004 before Mr Justice Astill and a jury. The indictment contained two counts, namely count one murder and count two manslaughter. Those two counts were in the alternative. Mr Paul Mann QC appeared for the prosecution leading Miss Dawn Pritchard. Mrs Frances Oldham QC appeared for the defence, leading Mr Alwyn Jones.
The prosecution called evidence from numerous witnesses concerning the matters referred to in Part 2 above, with one exception. The judge did not allow the prosecution to prove or rely upon the incident concerning A.
In relation to causation of death, the prosecution called a pathologist, Professor Rutty. The professor expressed the view that Rosie-May's death was caused by positional asphyxia. In other words someone had held her face down on the pillow, so that she could not breathe. Marks on her body indicated that she had struggled until she had lost consciousness.
The defendant gave evidence, maintaining his denial that he had killed Rosie-May or that he had had any involvement in her death. He denied going upstairs, except when he went to the lavatory or went up to check on his brother. He denied saying that he was feeling sexual. If Rosie-May's DNA was in his finger nail scrapings, he said that this may be because he ruffled her hair in greeting or because of transfer from his mother.
Various members of the Smith family gave evidence for both the prosecution and the defence.
Neither party called expert evidence concerning the defendant's Asperger's Syndrome, although there were a number of references to it during the trial. Both prosecution and defence made reference to the defendant's condition. Mrs Oldham relied upon the defendant's condition in order to explain his somewhat unusual manner in the witness box and his flat, unemotional way of talking. Indeed the judge directed the jury that by reason of the defendant's condition the jury should not hold against him his manner of presentation.
Mr Mann, when cross-examining the defendant's father, referred to the defendant's condition and suggested that he was more prone to lose his self-control than others. The defendant's father Mr Nigel Smith admitted that he had in the past written a letter concerning his son's condition in which he used the following sentence: "it used to be a question of lighting the blue touchpaper and standing back".
The trial lasted for over two weeks and the evidence was extensive. For the purposes of the present application we do not need to embark upon a full summary of the evidence. In due course the jury returned a verdict of guilty on count one, murder. The judge sentenced the defendant to custody for life. He specified the minimum term at 14 years less the period of 284 days which the defendant had spent in custody on remand.
The defendant was aggrieved by his conviction. Accordingly he applied for leave to appeal to the Court of Appeal.
The proceedings in the Court of Appeal have followed a long and tortuous path. In the first instance the applicant applied for leave to appeal against conviction on one ground only. This was that the judge had wrongly failed to give the first limb of the good character direction.
On 14 th February 2005 Mr Justice Royce refused the application for leave to appeal. He noted that the applicant had been convicted of dangerous driving. This dangerous driving had occurred immediately after the applicant's assault on A. In Royce J's view it was not possible to separate the dangerous driving from the applicant's admitted abduction and assault upon A. Accordingly the applicant was not entitled to any part of the good character direction.
At this point the applicant and his solicitor, Mr David Watts, decided to consult new counsel. Mr Watts sent instructions to Mr Jeremy Lindsay to advise on the prospects of a renewed application for leave to appeal.
On 22 nd February 2006 Mr Lindsay delivered his...
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