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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 >> Ellis & Anor, R. v [2013] EWCA Crim 2554 (03 December 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/2554.html Cite as: [2013] EWCA Crim 2554

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 3rd December 2013

1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 7th December 2010 in the Crown Court at Manchester before His Honour Judge Goldstone QC and a jury, Anthony Ellis and Kelvin James Wilhelm were convicted of murder and were sentenced to imprisonment for life. In the case of Ellis, the period of 16 years was specified as the minimum term under section 269(2) of the Criminal Justice Act 2003; the period specified for Wilhelm was 20 years.
2. Ellis appeals against conviction by leave of the Full Court. The grant of leave led to Wilhelm renewing his application for leave to appeal against conviction albeit some 2 years out of time. The Registrar has referred this application to the Full Court and we grant leave. The appeal focuses entirely on the adequacy of the judge's directions as to the elements necessary to establish a joint enterprise murder.
3. The facts do not require detailed elaboration. In the early hours of the 14th June 2010 the victim, John Muldowney, died from a single stab wound to the heart. It was a vicious killing and he was undoubtedly murdered. The wound was inflicted with a knife described as being some 15 inches in length, with a blade that was serrated and visible on a video taken during the course of the evening. The knife came from Ellis's home and was owned by his brother.
4. The accused along with the victim and others had spent the night drinking and taking drugs at Ellis's home. Earlier in the evening, Ellis had accused some the group of stealing cannabis from him and he then produced the knife which he had been seen with earlier in the day. He pointed at people in a threatening manner. He bullied some of those present. He demanded the members of the group remove all their clothing and submit to a search. Wilhelm also made accusations that someone had stolen his mobile telephone. At some stage, he had hold of the knife. In any event, this row about cannabis and the mobile phone led to a violent confrontation in which the stabbing took place. The fatal injury was a single stab wound to the chest, penetrating through the bone of the rib, into the front of the left lung and transfixing in the heart. There were defensive wounds on the victim as he tried to protect himself; a significant degree of force had been required to inflict the fatal injury.
5. The prosecution case was that the murder was a joint enterprise. Wilhelm had stabbed the victim but the appellant had joined in the attack, knowing that Wilhelm had the knife. Although there was no direct evidence from any witness to the effect that they saw the fatal injury being inflicted and thereby identified the person whose hand was on the knife at the time, the evidence of those present in the appellant's house was relied upon together with that of his neighbours. Bad character evidence was also relied upon to show that Ellis had been violent towards his girlfriend, mother and sister and thus had a propensity to resort to violence. His failure to comment in interview or to give evidence was also part of the case. In relation to Wilhelm, the Crown relied upon his bad character which included a knife point robbery as well as his failure to comment in interview.
6. The defence case advanced by Ellis was that he did not cause the victim's death nor was he a party to a joint enterprise to kill him or cause him really serious injury. Although he did not give evidence, his case was that the co-accused had attacked the victim and the appellant had not been party to that attack. Wilhelm, on the other hand, did give evidence. He claimed to have seen the appellant stab the victim. The victim had charged to Wilhelm whilst he was holding the knife. During the ensuing struggle he dropped the knife and shouted at Ellis to get the victim off. Ellis grabbed the victim and Wilhelm then saw the knife in his, Ellis' hands. He saw Ellis thrust the knife into the victim and threw him onto the bed. Wilhelm left the room and then left the scene. He subsequently telephoned Ellis and asked him why he had done what he did. He told Wilhelm that the victim was breathing and that the police had arrived.
7. No criticism is made of the conduct of the trial or of the judge's general directions. The judge then went on to deal with the issue of joint enterprise, starting his analysis with an explanation in these terms:

"So far I have concentrated on the legal position of the stabber, said by the prosecution and Anthony Ellis through his Counsel, to be Kelvin Wilhelm, said by Kelvin Wilhelm to be Anthony Ellis. Well, what of the position of the other defendant, the non stabber? As you have been told already, this is said by the prosecution to be a case of joint enterprise. An offence may be committed by one person acting alone or by two people or more than two people acting with the same criminal purpose. The defendants' agreement to act together need not have been expressed in words. It may be the result of planning, or it may be a tacit understanding reached between them on the spur of the moment. Their agreement can be inferred from the circumstances. Those who commit crime together may play different parts to achieve their purpose. The prosecution must prove that each defendant took some part. Mere presence at the scene would not be sufficient.

It is, as you know, the prosecution case that Kelvin Wilhelm was responsible for the fatal stabbing of John Muldowney, that he is guilty of murder, and that by virtue of the role played by Anthony Ellis in joining in the fight with John Muldowney, knowing that Kelvin Wilhelm had a knife and realising that he might use it with fatal consequences, he is also in law guilty of murder, but that is not an end of the prosecution case, for even if you remain uncertain as to who stabbed John Muldowney, they invite you to conclude that whoever it was who stabbed John Muldowney, the other joined in the attack, knew he had a knife and knew or realised that the other might use it to stab John Muldowney with intent to kill him or to cause really serious injury, and shared the stabber's intention."

8. In the main, these words represent an entirely accurate analysis of the law. The only caveat is the reference at the very end to the requirement that the joint participant share the stabber's intention, for the law does not put that requirement quite so high. It is sufficient if the non-stabber, as the judge so called him, knew or realised that the stabber himself intended to kill or cause really serious harm.
9. The learned judge helpfully and entirely appropriately provided a route to verdict. He then went through that route to verdict in the course of his summing-up. The document is available to us. It starts by asking the questions: "Are we sure who stabbed John Muldowney?" "Are we sure the stabbing was unlawful?" "Are we sure that the stabber intended to kill John Muldowney or to cause him really serious injury?" We do not elaborate upon those directions, but the judge went on to note if the answer is "yes", that is to each of these questions, the verdict in relation to the stabber was guilty of murder. He also dealt with the possibility of manslaughter.
10. The judge then went on, in question 4, to deal with the position in relation to person he described as the "non-stabber". It was in these terms:

"If the stabber is guilty of murder, are we sure that he knew that the stabber had a knife and shared his intention to kill John Muldowney or cause him really serious injury, or realised that death or really serious injury might occur as a result of the use of the knife. If the answer is yes, the verdict in relation to the non stabber is guilty of murder. If the answer is no, go on to question five."

Question 5 deals with the alternative possibility of manslaughter. The judge then went on to identify the questions which fell to be considered in the event that the jury were unsure which of the defendants used the knife but were sure the prosecution had proved the victim was murdered or unlawfully killed and asked the questions as follows:

"Are we sure that the defendant whose case we are considering took part in a joint attack on John Muldowney?... Did he know that the other attacker had a knife? ... Did he know or realise that the attacker with the knife would or might use it to stab John Muldowney and kill him or cause him really serious injury?"

If the answer to each of those questions was yes, the verdict was guilty of murder. Again, he went on to consider the alternative of manslaughter.

11. Although the obligation accurately to direct the jury is that of the judge and although there have been submissions to the judge as to the appropriate direction to the jury in relation to the ingredients of the offence and in particular as to joint enterprise, neither prosecution nor defence counsel sought to raise an issue with the judge as to the adequacy of this route to verdict. Mr Reid, for the Crown, submits that was because the real issue in the case, as was evident to all who participated in it, was the question as posed by the judge, namely knowledge of the use of the knife and realisation that at least serious injury might occur as a result of its use.
12. Mr Scobie QC, who did not appear at the Crown Court, argues for Ellis that in step 4 of the guide to verdict, the judge failed to make it clear that the Crown had to prove not only that the secondary party knew the stabber had a knife, and that he might use it, but also that the secondary party must also know that the stabber would use it or realise that he m might use it with the requisite intent for murder that is to say to kill or cause really serious harm.
13. Going back to question 4, it is important to underline that the jury were given two alternative routes. We repeat the direction (with emphasis added):

"If the stabber is guilty of murder, are we sure that he [which we interpolate clearly meant the non stabber] knew that the stabber had a knife and shared his intention to kill John Muldowney or cause him really serious injury, or realise that death or really serious injury might occur as a result of the knife?"

If "yes" the non stabber was guilty of murder. Thus the judge directed the jury to convict the joint enterprise participant, that is to say the non stabber, if he knew the stabber had and by clear inference used the knife, sharing a murderous intention or, in the alternative, knowing that death or serious injury might occur as a result. The important feature is that the alternative possibility says nothing at all about the intention of the stabber. So, excluding the alternative of knowledge of an intention to kill, the non stabber would be guilty of murder if the jury were sure that he knew the stabber had a knife and realised that death or really serious injury might occur as a result of the use of the knife.

14. Neither does the way in which the question is framed deal with the necessary element of participation in a joint enterprise, which Mr Scobie argues is of particular significance, given the circumstances of this case, which did not concern a group chasing and jointly injuring a victim, the one with the knife, but a rather more confused incident of violence, in which at some stage the knife was put down and later picked up.
15. The main argument advanced by Mr Scobie and indeed by Mr McMeekin on behalf of Wilhelm, is that taking the alternative option within its question on its own, it was, as the words emphasised indicate, open to the jury to convict the person who did not inflict the fatal injury simply on the basis that he knew the stabber had the knife and realised he might use it to cause death or serious injury. The direction is thus silent as to his appreciation of the intent of the attacker. Although the judge identified that the prosecution case was that Ellis joined in the fight with the appropriate intention, he had only gone on to say that they invited the jury to conclude the secondary party had to know or realise that the other might use the knife to stab with intent to kill or case really serious injury. That did not form part of the judge's directions of law but his summary of the prosecution case.
16. Mr Reid, for the Crown, recognises that the judge did not specifically instruct the jury that they must be sure that, at the very least, the non stabber knew that the stabber had the knife and, furthermore, knew or realised that the stabber would or might use it to stab the victim with the intention of killing or causing really serious injury. He accepted that having asked the jury to consider the case of the stabber, in particular whether he was guilty of murder, the appropriate direction should have been something along the lines of:

"On the basis you are sure the victim was murdered by the attacker, are you sure the defendant whose case you are considering.

(a) unlawfully took part in a joint attack on the victim; and

(b) knew the other attacker had a knife and.

(c) knew or realised the attacker with the knife would or might use it to stab the victim intending to kill or cause him really serious injury?"

17. This is another way of expressing the law to that contained within the masterly analysis of the law, in A, B, C and D v The Queen [2010] EWCA Crim 1622, by Hughes LJ I (as then he was) which emphasised at paragraph 32:

"That the joint participant can only be guilty of murder on the basis that he participates in the common enterprise and foresees that in the course of that common enterprise another joint participant may, not will, commit murder, that is to say act with the intention to kill or cause grievous bodily harm."

Recognising the inadequacy of direction, Mr Reid argues that nevertheless the conviction is safe. He relies on A, B, C and D which did not concern an attack with a weapon and refers to paragraph 36 which is in these terms:

"36. We should, however, add that in a great many cases, foresight of D1's act will almost inevitably carry with it foresight of an intention to kill or at least to cause really serious injury. If, as in many of the reported cases, D1 is carrying a knife or a gun or a broken bottle, and uses it, the real question will normally be whether D2 knew he was carrying it and foresaw that he might (not would) use it. If D2 did know this, then ordinarily that will mean that D2 realised (foresaw) that D1 might act with intent to kill or do really serious injury, at least unless there is some proper evidential basis for asserting the possibility that D2 foresaw an intent to inflict no or minor harm."

18. It is important to emphasise that Hughes LJ was careful to make it clear this was only "in a great many cases" and that the foresight of the Act would almost carry foresight of intention to kill or cause really serious harm and in knife cases "normally" before sight of possession and use. He also spoke of "many, if not most cases". He was not suggesting that the inference was inevitable or the directions of law could or should be modified as a result.
19. The decision in A, B, C and D was cited by this court in R v George [2011] EWCA Crim 1889. This was another case involving an allegation of joint participation in a knife killing. Moses LJ dealt with the position at paragraph 17 and 18 in these terms:

"17. The judge in her directions to the jury directed the jury that they could not convict unless the person who stabbed the victim Jourdan Griffiths had a murderous intention and that the secondary party knew of the existence of the knife, participated in the attack on Jourdan Griffiths at the time he was stabbed and intended that the knife should be used to kill him or to cause him really serious injury or 'realised that it might be used to that effect.' That was the oral direction. There were also written directions to this effect. Under the heading of 'murder', having given written directions as to what had to be proved in relation to the perpetrator, as to the secondary party the judge said in writing that no secondary party could be convicted of murder unless 'he knew before the stabbing of the existence of the knife and that he went on to participate in the attack on Jourdan Griffiths at the time he was stabbed and (c) that he intended that the knife should be used to kill him or to cause really serious injury or realise that it might be used to that effect.' At the end of the direction, in a written 'Steps to verdict' the judge asked the question: 'Did he intend that this person should use the knife with the intent to kill or cause grievous bodily harm or did he realise that he might do so?'

18. It is submitted that the failure to underline in every direction given that there must be proved not only a foresight of the actions of the perpetrator but of the murderous intention of the perpetrator was arguably a fatal defect in the directions. We do not agree. The correctness of the direction depends upon the particular factual circumstances in this case. In this case if a juror was sure that the accused foresaw that the perpetrator would use the knife with intention to kill or cause grievous bodily harm, there is no realistic space for reaching that conclusion but not being sure that the knife would be used with that intention. In R v A and others the Vice President made the point at paragraph 36, which was merely echoing what Lord Browne said in Rehman, that foresight of the act of a defendant in wielding a knife to kill or to cause really serious injury would inevitably carry with it foresight of an intention to kill or at least cause really serious injury (see paragraph 36). This, in our view, is just such a case. Once the jury was sure that the accused whose case the jury was considering foresaw that act with the large kitchen knife, the possession of which was known to that accused, then inevitably the juror would have been sure that the intention with which the knife was wielded would equally be foreseen. We do not think it arguable to the contrary. We do not think it arguable that once the jury had reached the conclusion as to the foresight of an accused as to the act there was room for foresight of a less than murderous intention."

20. In the context of the case then being considered by the Court of Appeal we do not suggest that the court was wrong to conclude in that case that the verdict remained safe. However, we do part company with that court if paragraph 18 of the judgment is read to mean that there was not an error in the summing-up. In our judgment, the failure to include the requisite knowledge of the stabber's intention, that is to say knowledge or realisation that the stabber intended to kill or cause really serious harm does constitute a defect. In the case of George, it may very well be that no unsafe verdict resulted. But where Moses LJ observed that the Vice-President in A, B, C and D made the point that foresight of the act of a defendant wielding a knife or to kill or cause really serious injury would inevitably carry with it foresight of intention to kill or at least cause serious injury, he was somewhat overstating how Hughes LJ put the matter. As we have said, it was very clear that such would arise "in a great many cases" and then "almost inevitably" or that "normally" the question would be whether the joint participant knew that the person inflicting the fatal injury was carrying a knife, gun or broken bottle and foresaw that he might, not would, use it.
21. In our judgment, with great respect to the learned judge, the failure to identify within the route to verdict the knowledge or realisation in the stabber that he, the stabber, had an intention to kill or cause really serious harm is a serious defect, which is not saved by the earlier analysis of what the Crown were contending was the position in the oral exposition which the judge provided. It may very well be that it made or would have made no difference but in the context of a case where the facts were as confused as here, with different witnesses providing slightly different views of precisely what occurred, we are not prepared to say that it is a failure which does not undermine the safety of the conviction. Furthermore, we are equally concerned that the route to verdict does not identify the requisite degree of participation, that is to say, the actus reus of the non stabber within the terms of the question posed.
22. Turning to Wilhelm, it is important to appreciate that in the course of his route to verdict the judge did not prejudge who the stabber was. He left it open to the jury to consider its analysis of the facts and decide who they were sure was the stabber; indeed, he left to the jury the opportunity to consider the possibility that they were unsure which of the defendants actually used the knife to inflict the fatal injury. Although it was the Crown's case and was the judge's conclusion that the fatal injury was in fact inflicted by Wilhelm, we are not prepared to conclude that the view of the jury coincided either with the Crown's case or the judge's own assessment. In those circumstances the verdict in relation to Wilhelm also is unsafe.
23. We cannot leave this case without underlining our regret that there must be a retrial. Those who participated in the first trial will have to go through the trauma of re-living the events of that day and Mr Muldowney's family will also have to go through the trauma of re-living that day and their own loss. Nevertheless, it is obviously critical that verdicts of guilty to any offence and in particular, one as grave as murder, should be founded on a correct analysis of the law and appreciation of the application of the facts to that law. In those circumstances these appeals are allowed. The convictions are quashed.
24. We order that both, Anthony David Ellis and Kelvin Wilhelm, be tried again on an indictment alleging the murder of John Muldowney. We direct that a fresh indictment be served and that the appellant be re-arraigned on that fresh indictment within 2 months. The venue of the retrial should be determined by the presiding judge for the northern circuit.
25. Is there any other application?
26. MR SCOBIE: My Lord, there is and it relates to, not my costs for today because I am legally aided. It relates to privately paid fees that go back to 2011 and beyond when in fact the original grounds were submitted by the defendant, the appellant in person, as Mr Ellis and then the case was effectively taken over by Mr Barry, who your Lordships will be aware has really represented him all the way through until now. But those fees ... I have a figure, we would ask to be considered and taxed under a defendant's costs order. They fall within the correct time ambit because we looked it up may be before the 1st October 2012 and the application first submitted by Mr Ellis.
27. PRESIDENT OF THE QUEEN'S BENCH DIVISION: As I understand the matter the order at the moment is only with respect to Mr Barry for leading counsel; is that right?
28. MR SCOBIE: Yes, these costs for today and since leave was granted before Hallett LJ, effectively legally aid has been granted for my attendance alone and that is fine. I am asking for a defendant's cost order.
29. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Let me see the piece of paper.
30. MR SCOBIE: This has the dates of I can assure you, your Lordship the dates of when the application was first made, it makes a difference in respect of as I can take your Lordship through the section necessary.
31. PRESIDENT OF THE QUEEN'S BENCH DIVISION: We cannot make an order beyond the relevant dates and if we did make an order beyond the relevant dates it would be an unlawful order.
32. MR SCOBIE: As I understand it where grounds of appeal have been submitted prior to 1st October 2012, and private work has been conducted in respect of the appeal, effectively taken on from 2011 onwards. It would be, as it were, under the old system - if I use that expression - where a defendant's cost order is capable of being made by this court. That is my understanding. I appreciate anything after 1st October there be any application made it would not count. But I only make the point there have been some fees paid to Mr Barry which we feel, bearing in mind your Lordship's judgment today are capable of being subject of taxation.
33. PRESIDENT OF THE QUEEN'S BENCH DIVISION: We will think about that; is there anything else?
34. MR MCMEEKIN: One application I am asked to make on behalf of Mr Power. The representation order for my appearance today has been settled by this court. It was not extended to cover leading counsel but he prepared the written document that my Lord has received. I am asked to make an application funding for those written.
35. PRESIDENT OF THE QUEEN'S BENCH DIVISION: I think that is highly unlikely.
36. MR MCMEEKIN: I was asked to ask. I thought it might have been. Nothing more. Thank you.
37. PRESIDENT OF THE QUEEN'S BENCH DIVISION: We will decide the question of costs. In the meantime, pending the retrial, the appellants will both be held in custody. Of course they can make an application. That is a matter for them, which should be to the Crown Court where the trial will be heard. We will consider the question of costs.
(Short Adjournment)
38. PRESIDENT OF THE QUEEN'S BENCH DIVISION: What work are we talking about?
39. MR SCOBIE: May I pass you over to Mr Barry because he may be able to deal with it rather than me turning my back.
40. PRESIDENT OF THE QUEEN'S BENCH DIVISION: We are perfectly content to ensure that Mr Barry is remunerated for such work as he did identifying this point. I do not know how far or extensive his review of this case was. We do not believe that a representation order should cover such wide-ranging enquiries as he may or may not have made as to which we know nothing that are concerned with this particular trial. To such extent as the representation order granted by Hallett LJ does not cover prior work, we make a defendant's costs order, directing taxation of the sums claimed, limited to those sums directed to the issue of an analysis of this summing-up.
41. MR SCOBIE: Certainly. I am very grateful.
42. PRESIDENT OF THE QUEEN'S BENCH DIVISION: You better ask what he wants, it is his money.
43. MR SCOBIE: I think I am hearing what the point is (Pause). This will have to be set out in the note on taxation to the court. Obviously, this is not really today. It may well be because he was travelling, Mr Barry, to Manchester, travelling to see the appellant, there are obviously issues as to those types of costs which he will have to set out in any schedule of work that he puts in front of --
44. PRESIDENT OF THE QUEEN'S BENCH DIVISION: I would be very surprised if it would cover great trips to Manchester, but that is a matter for assessment.
45. MR SCOBIE: They have to be taxed and assessed. I will speak to Mr Barry. I am sorry I did not make it clear beforehand.
46. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Thank you all very much.
47. MR SCOBIE: My Lord, no reference has been made to reporting restrictions. I do not know whether, that is....
48. PRESIDENT OF THE QUEEN'S BENCH DIVISION: I am sorry. In common with all cases of orders of retrial, we make an order under section 4(2) of the Contempt of Court Act 1981, restricting reporting of the proceedings until after conclusion of the retrial. That is made in the interests of justice, particularly bearing in mind the analysis that we have undertaken of the facts of the case.
49. MR SCOBIE: Thank you very. I am grateful for the reminder.