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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Khatun v R. [2010] EWCA Crim 138 (11 February 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/138.html Cite as: [2010] EWCA Crim 138

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IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
THE COMMON SERJEANT OF LONDON
T20077368

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/02/2010

LORD JUSTICE HOOPER:

1. On 23 December 2008 the appellant, at the Central Criminal Court, was convicted by a majority of 10-1 of the murder of her husband, to whom she had been married for just over a month. She appeals against conviction with leave of the single judge on three grounds. We announced our conclusion at the end of the hearing that the appeal was dismissed and we now give our reasons.
2. In the first ground complaint is made of the manner in which the judge, so it is said, withdrew from the jury the issue of the necessary intent for murder. In the second ground complaint is made of the refusal of the trial judge to leave the issue of provocation to the jury. The third ground concerns the issue of expert evidence. It is submitted that the judge was wrong to exclude the evidence of an expert, Miss Pragna Patel, whom the defence wanted to call in particular to explain why the appellant's cultural background was such that she might have lied to the police when first interviewed and why she later she had failed to say what she was to say at her trial, namely that she had been sexually abused by her husband as well as physically abused.
3. The prosecution's case was a simple and stark one: on the evening of 9 August 2007 the appellant had devised and carried out a sophisticated and premeditated plan to kill her husband. About two hours after delivering a single fatal stab wound to her husband killing him in the matrimonial flat and leaving the flat, she returned to it with her brother. Unable to gain entry the emergency services were called. They broke down the door and found the deceased in the hall. The appellant was interviewed by the police and told a story the effect of which was that the marriage was happy and that she had nothing to do with the killing and was not in the flat at the time. She sought to divert suspicion on to someone who had, so she said, tried to get into the flat two weeks before. She also had an alibi for the relevant parts of the evening. She also described her first marriage as unhappy.
4. Following intensive police investigations, evidence was uncovered which showed that she had travelled to the flat, that she was in the flat when her husband was killed and that the alibi was false. That evidence consisted of, amongst other things, an analysis of her use of her key fob and her husband's use of his, an analysis of her use of her mobile phone (which showed a number of calls designed deliberately to hide what she was planning), an analysis of the cell site evidence and evidence from a taxi driver which strongly supported the proposition that she had gone to the flat at the time of the killing with a knife and disguised in a burkha.
5. The appellant was arrested and answered no questions.
6. In her defence statement dated April 2008 she accepted that she had killed her husband. She claimed that the marriage was very unhappy and that her husband had physically and verbally abused her (but not sexually) for not behaving as, in his view, a Muslim wife of a devout Muslim should behave. She said that in the flat on the evening of his death, she had grabbed hold of a knife to protect herself from physical attack and quite accidentally stabbed him. The defence statement claimed that the issues raised by the appellant's account included accident, lack of intent, self-defence and provocation.
7. The appellant gave evidence at her trial in accordance with her defence statement and giving detail about what she said was her harsh upbringing at the hands of her very strict Muslim father and her unhappy first marriage.
8. The prosecution made it clear to the jury, as did the judge, that if the appellant's account of being a victim of violence in the flat and taking up a knife to protect herself during the altercation was or might be true then she was not guilty of either murder or manslaughter. The prosecution did not argue that taking up the knife in self-defence was unreasonable.
9. For example the judge said in the course of his summing up:

Have the prosecution established that his swift death was the result of a deliberate plan, a plan to get rid of him whilst she was unrecognisable, a plan to lay the blame on some intruder, while appearing to the rest of the world as if she had spent the whole evening at her [pre-marital] home ... and a plan, perhaps, to return to an earlier, happy, freer sort of life.

Well, have the prosecution established that or might it be right, as she says, that having been attacked inside the flat, in fear, she picked up a knife, and while trying to get out of the front door in panic and while under further attack, she accidentally stabbed him through the heart. If that is right, or might be right, she is entitled to be acquitted.

10. At the conclusion of the appellant's evidence and that of one defence witness, the judge, the Common Serjeant, gave a ruling in which he held that he would not leave provocation to the jury and nor would he leave manslaughter on the grounds of a lack of intent to kill or cause grievous bodily harm. He also ruled that he would not permit the evidence of the expert to be given.
11. As to provocation and lack of intent, he said that the appellant's case was one of accident and that there was no factual basis for rejecting her account and substituting some other scenario. On one interpretation of what the judge was saying he also said there was no history of documented abuse "but only her word for it after charge". If the judge was saying that (and Mr Aylett submits that Mrs Hollis QC is misinterpreting what the judge said), then, it is agreed, that would not be a good reason for withdrawing the issue of provocation.
12. We agree with Mrs. Hollis that there was evidence of the kind that would normally dictate that the defence of provocation should have been left to the jury but, and here we disagree with her, in this case the way the issues of primary fact and the consequences of their resolution were put left no scope for any consideration of provocation. The jury was told in the clearest terms by the prosecution and by the judge that they could only convict the appellant if they were sure that she killed her husband in pursuance of a sophisticated plan devised by her that evening. Whilst not suggesting that provocation and a measure of planning are always inconsistent, here the evidence as to the plan and the manner in which it was carried out was such as to leave no conceivable room for a finding that the appellant had been provoked so as to lose her self control. We see no merit in ground 2.
13. As to ground 1, the judge did not leave manslaughter to the jury and, indeed, in his summing up he told the jury that whether the appellant intended to kill or cause really serious harm "really need not worry you." At first sight that caused us concern. But, having also told the jury in the clearest terms and more than once, that they could only convict if they were sure that the appellant when stabbing her husband had "acted deliberately, unlawfully, and in a pre-planned way", this direction could not render the conviction unsafe. Mrs Hollis took us to the appellant's account of what happened and to the evidence of the pathologist to support the submission that manslaughter should have been left to the jury. However, if her account might have been true then she had to be acquitted. If the jury found, as they must have done, that her account was untrue and that this was a deliberate, pre-planned killing, there was no room for a verdict of manslaughter. It was either murder or nothing. We see no merit in ground 1.
14. In his summing up the judge told the jury that unless the prosecution had disproved accident and self defence, the appellant was not guilty. He also said that he would come back to the issue of self-defence. He did not do so. He did say that "accident and/or self defence" "are really rolled pretty much into one". At first that also caused us concern. But, on reflection, it did not do so, given that the prosecution were not arguing that it was unreasonable to pick up the knife in the circumstances which she was describing and given that the jury could only convict if sure that she was lying in her account of what occurred at the flat.
15. We turn to ground 3. We told Mrs Hollis of our tentative conclusions on grounds 1 and 2 and asked her how the expert evidence would otherwise be admissible. There was no issue as to the expertise of Miss Patel, an expert in the culture from which the appellant comes. Mrs Hollis submitted that the expert evidence could help the jury to understand why she might have lied in her first statements when giving her innocent account of the evening's events and stating that the marriage was a happy one. Indeed the judge referred in his Lucas direction to the fact that cultural background may provide an "innocent" explanation for lies. Mrs Hollis submitted that the evidence could explain why the appellant gave a no comment interview when arrested, a fact which led to a standard adverse inference direction. Thirdly, so it was submitted, it could explain why in the defence statement no reference was made to sexual abuse by her husband, to which she was to refer in evidence. There can be no doubt that the appellant's credibility was central to the case. Was she lying about what she said occurred in the flat at the time of the killing? Mrs Hollis submits that the expert was able to give reasons why a Muslim woman of her background might lie rather than dishonour her family. Such a woman would be inclined not to reveal that her marriage was unhappy and that she had been abused. If she was inclined to reveal abuse, she would be inclined not to reveal sexual abuse. This was the only ground on which we asked Mr Aylett QC to respond, albeit briefly. He pointed out that a number of witnesses from her background were called, including her father, mother, brother and first husband as well as friends. He pointed out that in her interviews she had discussed what she said was the unhappiness of her first marriage. He submitted to us, as he had to the judge, that, on the facts of this case, the evidence of the proposed expert was irrelevant. The assessment of the reasons for the appellant's lies and omissions did not require any expert assistance. The judge agreed and, in our view, he was entitled to do so.
16. We see no merit in ground 3.
17. We turn briefly to the renewed application for leave to appeal the minimum term of 17 years less 459 days spent on remand to which she was sentenced. The single judge wrote that the sentence was not manifestly excessive given that the jury had decided that there was "a lot of cold-blooded pre-planning and deception". We remind ourselves that the deception started at the time the body was found and that no admission was made that the appellant and killed her husband until there was overwhelming evidence that she had. Mrs Hollis agrees that the correct starting point is 15 years. She points to the fact that the appellant had no previous convictions, had lived an honest life and, in the words of Mrs Hollis, was until the killing a gentle person, "sweet and innocent". She submits that she has now been ostracized by her family (with the exception of one brother) and by her friends. She will spend her time in custody with almost no contact with the outside world.
18. In our view this was a shocking, planned murder of a person whom the appellant had just married and with whom she appears to have become bored, preferring a freer life. The death caused the deceased's family untold anguish. Amongst the aggravating features were the premeditation and taking the knife to the matrimonial home. The judge noted the cultural difficulties and problems which she had had with her father and depressive episodes.
19. In our view the sentence cannot be described as manifestly excessive and this renewed application fails.