Neutral Citation Number: [2018] EWCA  (Crim) 1344
Case No: 201605296 B3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date:Thursday, 25 January 2018
 
B e f o r e:

LORD JUSTICE SIMON 

MR JUSTICE SPENCER 

HIS HONOUR JUDGE PICTON 
(Sitting as a Judge of the CACD) 
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R E G I N A 
v 
FOSTER REGINALD CHRISTIAN 
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Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Fleet Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) 
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Mr R Menon QC and Mr P Marquis appeared on behalf of the Applicant 
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J U D G M E N T (Approved)

If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached.  This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 

LORD JUSTICE SIMON:  
1.	This is a renewed application for leave to appeal against conviction following refusal by the single judge.  

2.	On 21 October 2016, in the Crown Court at Maidstone, the applicant was convicted of two counts of murder, counts 1 and 2; a charge of wounding with intent, count 3; and a charge of unlawful wounding, count 4.  

3.	On 29 March 2016, the applicant had stabbed and killed Simon Gorecki, who was 48 years old, and Natasha Sadler‑Ellis, who was 40.  He also stabbed Natasha Sadler‑Ellis' two sons, Connor Harris, who was 20, and Brandon Ellis, who was 16.  

4.	The applicant lived in a shared house with Simon Gorecki and others, including prosecution witnesses Terry Humphrys and Stuart Watson.  The applicant lived in a room on the first floor of the house, Simon Gorecki lived on the ground floor and Natasha Sadler‑Ellis lived at an address close by. She had recently started a relationship with Mr Gorecki.  

5.	There had been previous incidents in the house involving Simon Gorecki and the applicant, including in July 2015, an occasion when Simon Gorecki, under the influence of alcohol, shouted at the applicant and goaded him.

6.	On 29 March 2016, at approximately 7.00 pm, the applicant and Simon Gorecki got into a verbal dispute over the temperature of the water in the shower.  Some time later that evening, Natasha Sadler‑Ellis' sons received a call from her in which she sounded distressed.  

7.	They went to the house and could hear her shouting inside.  At some stage, Simon Gorecki, Natasha Sadler‑Elllis and her two sons entered the applicant's room and an incident broke out.  During this incident, the applicant stabbed all four of them with a knife: Simon Gorecki and Natasha Sadler‑Ellis fatally.  

8.	Shortly after 7.15 pm the applicant telephoned the co‑accused Naomi Toro and at 7.40 pm the applicant made an emergency call.  He told the police that he had been attacked and that his assailants had punched him, hit him with beer cans and bottles and that he had grabbed a knife.  During this phone call he passed the phone to Stuart Watson.  At this point Toro arrived and shortly afterwards she disposed of the knife at the applicant's request.  When he returned to the call he told police, "It was a knife they had yeah, it was a knife ... that I grabbed off them yeah, yeah".  

9.	The police went to the address and prior to arrest the applicant told a police officer: "They attacked me with a knife, I got it off them and fought back.  They were hitting me and attacking me, they took the knife back".  

10.	Both Simon Gorecki and Natasha Sadler‑Ellis were pronounced dead that evening.  A postmortem examination was consistent with the effects of alcohol consumption.  Simon Gorecki had five stab wounds, all of which were in a generally upward direction and were generally from behind.  Natasha Sadler‑Ellis had a penetrating wound to her head from above to about the level of the mandible.  She also had sustained a thrusting wound into the left side of her chest which penetrated the chambers of her heart.  

11.	Brandon Ellis had one major stab wound to his lower left abdomen, which was life‑threatening because it severed one of the main veins in his upper leg.  He also suffered other wounds.  Connor Harris had a stab wound to his right arm in the area of his elbow which was not life‑threatening.  

12.	The applicant sustained some injury but no stab wounds.  In interview, he did not mention Simon Gorecki attacking him with a knife.

13.	The prosecution case was that the applicant was not acting in self‑defence.  Even if Simon Gorecki had had a knife, he did not use it.  The applicant had not suffered any knife wound.  In any event, the violently aggressive attack went beyond any lawful self‑defence.  The prosecution said that the applicant had told the truth in the emergency call when he had said the incident involved beer cans and bottles and he was the person who took the knife.  He had asked his co‑accused Toro to dispose of it so that he could pretend someone else had had it.  

14.	The prosecution relied on a number of strands of evidence.  These included evidence given by Connor Harris that Simon Gorecki did not carry a knife and that the applicant was the aggressor; and evidence given by Brandon Ellis that his brother Connor had tried to diffuse matters, that he did not see a knife and that Simon Gorecki was not armed with one.
15.	The prosecution also adduced evidence from Lee Owens as to the living arrangements and Simon Gorecki's personality, including the fact that he was a regular drinker who could become aggressive and difficult to live with when he went on benders.  Also what he heard of the incident and saw of the immediate aftermath.  This included the applicant shouting to get away from him and Natasha Sadler‑Ellis saying, "Put that away" or "Put that down". 

16.	There was evidence from a pathologist, Dr Swift, as to the wounds found, the force required to inflict them and the effects of the wounds; photographs and body maps of the injuries; the applicant's initial explanation in the 999 call, which did not mention that he been attacked with a knife but did say that the incident involved fists, beer cans and bottles; lies told by the applicant as to when and how he obtained the knife, including grabbing the knife off Mr Gorecki; his request to the co‑accused Toro to dispose of his knife; and finally, after confirmation that the applicant would give evidence in accordance with his defence case statement, the prosecution relied on his previous convictions for violence as a matter relevant to the credibility of his account.  

17.	The defence case was that the applicant was acting in self‑defence.  The defendant gave evidence that following the argument about the shower Natasha Sadler‑Ellis knocked on his bedroom door and threatened him, saying that her boys were downstairs.  When he looked downstairs, he saw Simon Gorecki, Terry Humphrys and two men whom he subsequently found were her sons Brandon Ellis and Connor Harris.  They all began shouting at him.  He shut the door but they entered his room.  He grabbed a knife, held it up and told them to get out.  Simon Gorecki then entered the room shouting, "You black bastard" and lunged at him.  The applicant saw a flash of metal.  He was then hit on his head by an object.  He felt a number of blows to his body.  He got Simon Gorecki into a headlock and punched out in different directions.  He was not aware that he had used the knife and stabbed four people with it.  

18.	The issue for the jury was whether the applicant was acting in reasonable self‑defence.  The judge gave two rulings which give rise to the grounds of appeal.  On 19 October 2016, the judge ruled that the partial defence of loss of control should not be left to the jury.  He held that the defence only arose in circumstances which would otherwise lead to a conviction for murder.  It therefore had to be assumed that, contrary to the applicant's evidence, he knew that he had a knife in his hand, knew he was using it and intended to use it to kill or cause really serious injury.

19.	The judge considered the evidence as to the trajectory of the wounds found on Simon Gorecki and the applicant's account of the struggle.  He then went on to consider the three qualifying triggers for the loss of control defence as set out in section 54(1) of the Coroners and Justice Act 2009.  He accepted that it was open to the jury to conclude that the applicant's acts resulted from his loss of control (the first trigger) and that the loss of control had a qualifying trigger within the meaning of section 55(2) of the Act (the second trigger).  The jury could properly conclude that there was a catastrophic loss of control on the part of the applicant and could properly conclude that his loss of control was attributable to fear of serious violence. 
 
20.	He then turned to the third trigger: that a person of the applicant's sex and age with a normal degree of tolerance and self‑restraint and in the circumstances of the applicant might have reacted or behaved in the same or a similar way.  Whilst a person confronted by the circumstances that had immediately confronted the applicant might react by exercising extreme force in reasonable self‑defence and might misjudge the state of the attack on him, the applicant's reaction and behaviour were so extreme and so protracted that the court could not envisage that a jury properly directed might conclude that the notional person might have reacted or behaved in the same or a similar way.

21.	Mr Menon QC seeks to argue as his first ground of appeal that the ruling was wrong and that the partial defence should have been left to the jury.  He argues that the evidential threshold that a defendant must satisfy to have a partial defence left to the jury is minimal.  If sufficient evidence is adduced on which a properly directed jury could reasonably conclude that the defence might apply, the trial judge must leave the defence to the jury.  A judge must be very careful not to usurp the function of the jury by wrongly withdrawing the defence.  The judge wrongly allowed his view that the applicant's account of the stabbings was inconsistent with the trajectory of the stab wounds to Simon Gorecki to unduly influence his consideration of the third trigger.  He was not viewing the evidence most favourably to the defence.

22.	As the judge said:

Having considered the matter again, I take the view that Mr Christian's account is inconsistent with the objective evidence of the wounds themselves, and that is a factor that I must take into account as part of my evaluation of the evidence.

23.	Mr Menon relies on observations of this court in two cases in which the judgment of the court was given by Lord Judge CJ.  First, in R v Clinton & others [2012] 1 Cr App R 26 at paragraphs 48 to 49, the court referred to the importance of the question whether the jury could reasonably decide that the prosecution had failed to negate the defence.  This involved the judge recognising that a jury may accept the evidence which is most favourable to the defendant.  

24.	In R v Dawes & others [2013] 2 Cr App R 3 at 51 the court observed that the evidence of loss of control might come from a defendant and that the credibility of the defendant was a matter for the jury.

25.	Mr Menon outlined the facts most favourable to the defendant, which the judge accepted.  It is unnecessary to enumerate those factors since, as Mr Menon acknowledged, the judge had accepted those.  Indeed, they led to his conclusion in relation to triggers 1 and 2.  But, as the judge had noted, at this stage of the analysis he had to take into account that the applicant had attacked the two deceased and Connor Harris with at least an intent to cause really serious injury.

26.	In our view, the judge's ruling was clear in its analysis both of the statutory provisions and the evidence.  He approached the evidence on the assumption that the applicant's account would be accepted by the jury.  At page 9B to 11G, he had regard to all the matters advanced in argument.  

27.	Although it is plainly for the jury to determine how the person identified as D in section 54 of the Act would react in like circumstances, the terms of section 54(5) and(6) of the Act refer to "sufficient evidence".  

28.	This matter was addressed in the case of R v Gurpinar & others [2015] 1 Cr App R 31, where the court, Lord Thomas of Cwmgiedd CJ, set out the proper approach.  At paragraph 12, the court said this:

We therefore accept the submission of the appellants that a judge needs to proceed on the premise that the jury may take a different view of the evidence to that which the judge may have found.  The judge must therefore approach the analysis of the evidence on that basis, as is emphasized in the passage from Clinton which we have set out.  However, as the 2009 Act refers to 'sufficient evidence' it is clearly the judge's task to analyse the evidence closely and be satisfied that there is, taking into account the whole of the evidence, sufficient evidence in respect of each of the three components of the defence.  The judge is bound to consider the weight and quality of the evidence in coming to a conclusion: see R v Jewell [2014] EWCA Crim 414 at paragraphs 51‑54. 

29.	It is plain that the judge had this approach in mind in his ruling.  The question then is what is the right approach of this court to such an assessment.  That is addressed at paragraph 16 in Gurpinar as follows.

A judge must then in that assessment have regard to the three components of the defence of loss of control under the 2009 Act (and not the former law), undertake a rigorous evaluation of the evidence against those components and set out the conclusion in a reasoned ruling.  Provided that is done, bearing in mind the advantages a trial judge has over an appellate court, an appellate court will accord to a reasoned decision of a trial judge (examining the components of the defence of loss of control) the ambit of judgment in the evaluation of the evidence that is open to the judge when making a decision based on that evaluation.  In such circumstances, an appellate court will not readily interfere with that judgment.

30.	In this case, there was a rigorous evaluation in the course of a fully reasoned ruling.  The judge specifically warned himself, at the invitation of Mr Menon, against usurping the function of the jury, but continued:

But I am required to evaluate the evidence in order to assess whether a jury properly directed could reasonably conclude that the defence might apply. 

31.	That was the question that it was necessary for him to ask in relation to each of the triggers.  In relation to triggers 1 and 2, he ruled in favour of the defence.  In relation to trigger 3, he ruled against the defence.  This precluded the defence being raised and summed up to the jury.

32.	The judge made clear that the issue of whether or not the issue should be left to the jury had to be approached on the assumption that the defendant realised he had the knife in his hand and intended to kill or to cause really serious harm.  

33.	The judge was fully entitled, in our view, to conclude that such ferocious multiple stabbings with that intent could not conceivably be consistent with the notional reasonable man's possible reaction.  In our view, that conclusion was supported by the evidence viewed most favourably towards the defence and was reasonable, and in any event not one which this court could properly review as a ground of appeal.

34.	Accordingly, we do not consider this ground to be arguable.

35.	On 17 October 2016, the defence invited the court to consider what ruling it would make if the applicant were to repeat in evidence what he had outlined in his defence case statement, namely that as he was trying to close the door, or at some subsequent point, Simon Gorecki had rushed past the others, shouting, "You black bastard" and had lunged at the applicant while holding a knife in his left hand, this being contrary to the evidence of Brandon Ellis and Connor Harris.  

36.	The judge recorded that it had been accepted that what was said in the defence case statement amounted to an attack on another person's character and it was also accepted from the authorities that there was no general rule that a person's character should not be admitted simply because the imputation against another witness was integral and necessary to the defence.  The question was one of discretion in the context of the fairness of the trial in the event the evidence was or was not admitted.  

37.	The judge indicated that if the applicant were to give evidence in accordance with his defence case statement the evidence of his previous convictions for violence would be admitted.  

38.	The ruling gives rise to ground 3.  Mr Menon submits that having refused to admit evidence of previous convictions for violence on the prosecution's application under gateway D of section 101(1) of the Criminal Justice Act 2003, since they did not demonstrate a propensity to commit crimes of serious violence and it would be unjust to admit them, the judge was wrong to "indicate" subsequently that the evidence would be admissible under gateway G if the applicant made the imputations against Messrs Gorecki, Ellis and Harris.  He submits that the judge effectively reversed his prior decision.  Furthermore, the admission of the evidence on the basis that it was relevant to his credibility had such an adverse effect on the fairness of the proceedings since they should have been excluded under section 101(3).  The convictions for wounding with intent in 1985 and 1989 were so old that they could not have any relevance at all, including relevance as to his credibility.  

39.	In refusing leave, the single judge referred to the earlier ruling before turning to the application for the indication:

This was a discrete issue which called for a separate consideration.  In my judgment the bad character evidence was admissible and the judge carefully considered the exercise of his discretion.  References to other decisions provided limited, if any, assistance.  The judge was not required to give what was in effect a contingent ruling and he made clear his decision could be different in the light of your evidence.
  
In the result your counsel anticipated what the Ruling would be in the light of your evidence and you chose to introduce the evidence of your bad character.  No complaint is made, or could be made, of the judge's written directions on bad character or his further observations in summing up.

40.	We agree.  We would add that when it came to the summing‑up (page 8G) the judge made it quite clear that the relevance of the previous convictions was limited to whether the jury believed his evidence.  In our view, the judge was quite right in the way he approached both the initial ruling and the subsequent indication, following which the defence decided to introduce his previous convictions as part of his evidence.

41.	We turn then to the second ground of appeal, which, as Mr Menon acknowledged, was really a variation of ground 1 and was promoted primarily in support of ground 1.  It is a criticism of the judge's observations on the applicant's evidence as to the way in which he held Simon Gorecki and the extent to which the wounds were consistent with that account.  As we have noted, that had already formed part of his review of the evidence in relation to the loss of control defence.
42.	It is said that the judge erred when he directed the jury, as he did, that they were entitled to take into account the evidence of the trajectory of the wounds sustained by Mr Gorecki when considering the applicant's account of the assault.  It is said that this was effectively inviting the jury to act as experts in the absence of proper expert evidence on the point.

43.	We have looked at the summing‑up and, in our view, there was nothing wrong with the judge inviting the jury to consider the wounds inflicted on Simon Gorecki when assessing the applicant's account.  The pathologist could not express a view about the respective position of the applicant and his victim since he had not heard the applicant's evidence or seen him demonstrating how he had held Mr Gorecki as he did in the witness box.  This was a point made by the prosecution.  It was pointed out that the defence could have asked the pathologist for his opinion in light of what it knew the applicant would say in his evidence. 

44.	The jury had the evidence about the trajectory of the wounds and the applicant's evidence about how they were caused.  They were plainly entitled to consider whether his account was consistent with the pathological evidence that they had heard.

45.	For these reasons, the renewed application is refused.