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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 >> Zawadzka v R [2016] EWCA Crim 1712 (09 November 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/1712.html Cite as: [2016] EWCA Crim 1712

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ISLEWORTH
HER HONOUR JUDGE ZOE SMITH

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/11/2016

Lord Justice Bean :

1. On 30^th November 2013 police officers entered Flat 1, The Towers, Lower Mortlake Road, Richmond where they found the body of Julia Anders, formerly known as Bernadeta Nawracaj. She had been dead for about two weeks and had clearly been violently killed. The appellant was charged with her murder. Following a trial in the Crown Court at Isleworth before Her Honour Judge Zoe Smith and a jury the appellant was convicted on 15^th July 2014. She appeals against conviction by leave of the single judge.
2. The victim was a 43 year old woman who supplemented her income as a driving instructor by providing sexual services. Her body was found on the bed in one of the bedrooms in Flat 1. There was no sign of forced entry. She had suffered a severe injury to the head and the sheets and mattress were saturated with blood. The head injury was consistent with blows from a hammer. Pathology suggested that she had survived for about 48 hours following the attack. The state of the body was consistent with the attack having occurred on or around the night of 16^th-17^th November 2013. No keys fitting the front door locks were found in Flat 1. Mugs and wine glasses in the kitchen had fingerprints matching either the victim or the appellant.
3. On 1^st December police searched Flat 39, The Towers, where the appellant had been staying. They found a hammer that had been placed (when wet with blood) in a black handbag in a bedroom shared by the Appellant's brother Pawel Zawadzki and his partner Klaudia Muszynska. The black handbag also contained the victim's personal phone. Two sets of keys fitting the door to Flat 1 were found, one under newly laundered clothing in a laundry basket in the same bedroom in Flat 39, the other in the appellant's baby changing bag. Also seized was a pair of black leggings with a small bloodstain. A Louis Vuitton handbag belonging to the appellant was also found in Flat 39, containing documents and bank cards in the name of the deceased and the keys to her car.
4. The prosecution case relied on circumstantial evidence. The most significant aspects included the following:-

i) The head of the hammer found in Flat 39 contained a complete DNA match with the deceased while the handle had a complete and partial DNA profile for the appellant. The handbag in which the hammer was found had the appellant's DNA on the handles.

ii) The black leggings also found in Flat 39 which DNA evidence showed had been worn by the appellant were stained with the victim's blood.

iii) A witness called David Curnliffe had visited the deceased's flat on the afternoon of 16^th November. He found both the deceased and the appellant in the flat, contradicting the appellant's account that she had not been there that afternoon.

iv) The telephone cell site evidence was consistent with both women being in the flat on 16^th November for much of the day.

v) At around 19:30 on 16^th November the telephone evidence demonstrated that the appellant went to Nigel Pinnock's flat before returning to the deceased's flat.

vi) The appellant sent a text at 01:36 on 17^th November saying she was popping into Flat 1 (the deceased's flat). She would then have been alone with the deceased who was probably asleep.

vii) The deceased was found with fatal injuries in bed in her pyjamas with no defensive injuries.

viii) For 20 minutes between 01:48 and 02:08 the appellant, unusually, did not use her phone.

ix) The flat door had not been forced; both sets of keys to the flat were subsequently found in Nigel Pinnock's flat (No 39) where the appellant was living, and one set of keys was in the appellant's baby changing bag.

x) When she arrived at Nigel Pinnock's flat in the early hours of 16^th November the appellant was wearing black leggings. Subsequently a pair of black leggings were found with the deceased's blood on them (see (2) above).

xi) Within hours of the fatal attack the appellant gave the deceased's handset (LAD/1) to her brother's partner Klaudia who had just arrived from Poland.

xii) The SIM card from the deceased's phone was found in the appellant's handbag.; it was used to send a number of text messages suggesting that the deceased was still alive. It was used both in the appellant's handset and in another one which the appellant bought using the deceased's credit card.

xiii) After 17^th November the appellant went on a spending spree using the deceased's bank cards to their limits.

xiv) The appellant also used the deceased's car in the same period.

xv) The appellant repeatedly sought to blame others for the deceased's disappearance and death. At first, to the family, she blamed George Willis; then "Matteusz" a long haired drug addict; then an unnamed client with whom she had gone on an outcall; then a woman called Rochelle; finally, and only after the trial was underway, she sought to blame her brother Pawel.

xvi) On 28^th November at 00:49 the deceased's sister Alicja Antoniou, who had reported her missing to the police, received a text message purportedly from the deceased's mobile phone saying "I am OK, I'll call when I'm back. Bye". At 01:34 her other sister Mariola received a telephone call from the deceased's phone number in which she could hear screaming and crying and then a male voice (or at any rate, a deep voice). Later that day the appellant made a number of comments to the two sisters suggesting that Julia was still alive, for example that she had checked Julia's credit card which had been used on Sunday in central London, so Julia must be OK.

5. On 30^th November police officers began to investigate Julia's disappearance. PC Leach telephoned the appellant who said she had last heard from Julia on Thursday 28^th November when she had stated she was safe and well and she would be returning on Monday. The appellant told the police she had not been in the flat since Friday 22^nd November when Julia had taken the flat keys from her, stating that she had wanted to get another copy cut. After that she had not returned the keys and had disappeared.
6. That afternoon the officers entered the flat and found Julia's body. The appellant was arrested later that day and charged with the murder.
7. The trial was listed to start on 2^nd June 2014. On 20^th May 2014, the appellant served a defence case statement to the effect that she had last seen the deceased on 15^th November 2013.
8. A jury was empanelled on Monday 2^nd June 2014. The trial did not begin until the following Monday, 9^th June. The prosecution began calling witnesses on 11^th June. Pawel Zawadzki began giving evidence on 16^th June and continued on 19^th June.
9. On 19^th June the appellant served a second defence case statement which departed very substantially from the first. She said that she had returned to Flat 1 on the night of 16^th /17^th November 2013 to find the door ajar and Julia lying on the bed obviously injured.
10. The report of an expert on telephone evidence, Mr Sexton, had been served by the prosecution on 1^st May 2014. The defence served an expert report of a Mr Banks in response on 27^th June. Mr Sexton gave oral evidence on 1^st July 2014. Mr Banks was not called and his report of 27^th June was not placed before the jury.
11. The appellant gave evidence on 3^rd and 7^th July 2014. There were no other witnesses called by the defence.
12. The judge summed up the case in considerable detail and in the course of the summing-up gave directions of law to the jury. We are told that the only such direction of law given in writing was one setting out the elements of the crime of murder. Immediately after the jury retired on the afternoon of Friday 11^th July Ms Bennett-Jenkins QC for the defendant submitted that the judge should give the jury a written text of all her directions of law, including (but not limited to) her direction on circumstantial evidence. Judge Smith said that she would consider the matter over the weekend. The submission was repeated before the jury were brought into court on the Monday morning. The judge did not give further directions in writing. At 12:20pm on Tuesday 15^th July the jury returned a unanimous verdict of guilty.
13. The single judge granted leave to appeal against conviction on 28^th January 2015. That appeal was originally listed before Laws LJ, Spencer J and the Recorder of Stafford (Judge Tonking) on 21^st April 2015. It did not proceed, however, because the defence wished to commission a second report from Mr Banks on a different aspect of the telephone evidence. Such a report, dated 11^th August 2015, was served on the prosecution in early October 2015. The gist of it was that the call number 1804 in the prosecution schedule, made on a telephone using the deceased's SIM card to the victim's sister Mariola at 01:34 on 28^th November 2013, could not have been made by the appellant.

The Grounds of Appeal

14. There were originally five grounds of appeal against conviction. Grounds 3 and 4 have rightly not been pursued before us. The remaining grounds are that:

(1) The judge erred in allowing certain hearsay statements made by the deceased to be admitted in evidence.

(2) The judge erred in allowing evidence of the appellant's bad character to be admitted in evidence; and did not give a proper direction to the jury on how that evidence should be approached.

(5) The evidence contained in Mr Banks' second report about telephone call number 1804 is capable of destroying any inference of guilt from the circumstantial evidence.

Ground 1: Hearsay

(a) Statements by the deceased to her sister, Mrs Antoniou that she was frightened of the defendant and that the defendant would one day kill her.

15. Ms Bennett-Jenkins accepts that hearsay statements by a deceased witness on a relevant matter are admissible under s 116(2)(a) of the Criminal Justice Act 2003 but submits that the judge should have exercised her discretion under s 78 of the Police and Criminal Evidence Act 1984 to exclude such statements on the grounds that their prejudicial effect outweighed their probative value. She emphasises, rightly, that hearsay statements by the deceased in a murder trial have to be treated with some caution because the maker of the statement is no longer available for cross-examination. She submits further that where, as in this case, the recipient of the statement is a family member or close friend of the deceased, that witness may be motivated by antipathy towards the defendant; and argues that in this case the victim's sisters each had "a high degree of animosity" towards the appellant.
16. The judge gave a warning early in the summing up in appropriate terms (pages 12F to 14B) warning them that they must first decide whether the hearsay witness was making a report of what was said to her truthfully and accurately; and adding that, for obvious reasons, the defence could not cross-examine the deceased as to the truthfulness of what she said, nor put it to her that she was being overdramatic or exaggerating and that she had in reality no grounds for such fear, nor that the statement had been taken out of context. The judge also emphasised that the alleged conversations had taken place some time earlier, apparently in 2011 and 2012.
17. In our judgment this evidence was plainly admissible and relevant and, with such warnings being given, it was well within the discretion of the judge to allow the jury to hear it and evaluate it for themselves. The question of whether the sisters' evidence was coloured by animosity towards the defendant was a matter for the jury. We do not think that the direction to the jury on this hearsay issue was inadequate, nor that it was essential for it to be given in writing.

(b) Statements of the deceased to Patricja Wojcik that the defendant was jealous of Julia/Bernadeta for being more successful as a sex worker and more popular with clients.

18. This item was referred to in the grounds of appeal but not in Ms Bennett-Jenkins' oral argument. In our view this evidence was wholly peripheral and was, like the first category of hearsay, properly covered by the judge's warnings.

(c) Statements by the deceased that the defendant had used her bank/credit cards within her consent.

19. There was no dispute that the appellant had used the deceased's bank and credit cards both before the presumed date of her death on 17^th November 2013 and in the fortnight afterwards. The appellant's case was that she had the card holder's consent to use her cards. Three witnesses gave evidence that they had been told at various times by Julia that the appellant was stealing from her by using her bank cards without her permission. Counsel submitted to us that this aspect of the prosecution evidence was hearsay which the judge should have excluded under s 78; and also that it should have been the subject of an application to the judge on prior written notice for permission to adduce it as evidence of bad character.
20. At the start of the trial the appellant's case as set out in her first defence case statement was that she had last seen the deceased alive and well on 15^th November and only learned of her death on 30^th November; the deceased's consent to use the cards was thus presumably to be inferred as continuing. The hearsay statements by the deceased on this issue were at that stage relevant to the issue of the appellant's credibility and properly admitted.
21. Whether they should have been treated as evidence of bad character, or as evidence to do with the facts of the offence charged, is an issue which in our view became somewhat academic. As we have noted, the appellant's case changed in mid-trial to an admission that she had seen Julia lying on the bed very seriously injured on the night of 16^th /17^th November. As Ms Bennett-Jenkins realistically conceded before us, it was "unattractive" that even after that the appellant continued to use Julia's bank cards. But the undisputed fact is that she did. It is not clear to us that the judge was pressed to give a bad character direction in the summing-up about the earlier, allegedly dishonest, use of the bank cards; or that any such direction could have helped the defence. Perhaps from the appellant's point of view the less that was said on that subject the better.

Ground 2: bad character

22. The prosecution were granted leave by the judge to adduce in evidence a properly certified document showing that in 2011 the appellant had been convicted in Poland of an offence of theft of gold jewellery from a flat. The gateway through which this evidence was admitted was section 101(1)(g) of the Criminal Justice Act 2003, namely that the appellant was accusing her brother Pawel of having killed Julia. The appellant's evidence was that the Polish court proceedings had taken place in her absence, and that she had not committed the alleged offence of theft.
23. In summing up the judge said:-

"What is the relevance, members of the jury, of this finding of guilt? This has been given in evidence because the Defendant accuses her brother, Pawel, or having killed Julia and in those circumstances, you are entitled to know something of the nature of the person making that accusation.

The only relevance of evidence as to previous convictions is as to whether knowledge of the Defendant's character assists you to judge the truthfulness of her evidence.

Obviously, you will not assume that the Defendant is guilty or that she is not telling you the truth because she has a previous finding of guilt. It is not relevant at all as to the likelihood of her having committed the offence with which you are concerned. Its only relevance is as to whether you can believe her.

You heard from the Defendant that she knew nothing about this allegation. The finding of guilt was made in her absence. You heard that she had communicated with the alleged victim of this theft who was a friend and she had communicated with her in 2012 but she had said nothing about it.

You will also appreciate that the allegation of theft was in 2009 and therefore, some time ago.

You do not have to allow this finding of guilt to affect your judgment. It is for you to decide the extent to which if any it helps you about that.

What does follow from that, members of the jury, is that she has no other findings of guilty or convictions for any other matters and therefore, no convictions for any matter involving violence and you can take that into account in her favour when considering the likelihood of her having committed this offence."

24. Not every judge would have allowed this evidence to be admitted; but we cannot agree that it was wrong in principle to have done so. The appellant was not merely making an incidental unflattering reference to the character of a minor prosecution witness. She was in effect accusing her brother of the murder. We reject the argument that this evidence of bad character had such an adverse effect on the fairness of the proceedings that the judge was bound to have used her discretion to exclude it.
25. There is more force in Ms Bennett-Jenkins' submission that the summing-up did not include a proper direction on how the jury should approach this evidence. By virtue of s.74(3) of the Police and Criminal Evidence Act 1984 (as amended) the fact of the conviction created a rebuttable presumption that the appellant had committed the offence. After reminding the jury what the defence case was on the Polish court document the judge should have told the jury that if the appellant had proved, on the balance of probabilities, that she had not in fact committed the offence of theft in Poland (in other words that she was probably telling the truth about it) they should dismiss it from their minds; and that only if she had failed to do so could they take it into account at all on the issue of credibility.
26. However, this error by the judge comes nowhere near calling into question the safety of the conviction. By the time the evidence closed the jury had been presented not only with an overwhelming case based on circumstantial evidence, but also with evidence of persistently deceitful behaviour by the appellant in the period between 16^th and 30^th November at a time when on her own amended case she must have known or at least strongly suspected that Julia was dead. Whether she had also been guilty of an offence of theft in Poland some years ago seems to us, and must have seemed to the jury, a matter of no importance whatever.
27. We agree with Ms Bennett-Jenkins that it would have been preferable, and the error which we have identified might have been avoided, if the direction on this subject had been given in writing in the terms of a draft discussed beforehand with counsel. There are some directions of law which in our view it is usually essential to give in writing. It is not necessary in this judgment to give a definitive list: obvious examples include self-defence and diminished responsibility. But the issue of the Polish conviction in the present case was not as technical nor as significant as either of these. In any event, until and unless the Criminal Procedure Rules require directions to be given in writing this is not a free-standing ground of appeal.

Ground 5: fresh evidence in relation to the call at 01:34 on 28^th November

28. One of the several calls or texts made using the deceased's SIM card in the period after her death was at 01:34 on 28^th November to the deceased's sister Mariola (call number 1804). This was the call (see paragraph 4 (16) above) in which she could hear a woman screaming and crying then a male voice (or at any rate a deep voice). The prosecution opened the case to the jury on the basis that the appellant and the deceased's two sisters Mariola and Alicja had gone to an address at or near Corsellis Square, Twickenham late that night to call on the deceased's ex-boyfriend George Willis. They rang the bell but there was no response. The appellant climbed the gate and went out of sight. It was while she was out of sight that the phone call was received by Mariola at 01:34. The prosecution case, as opened, was that this call was made by the appellant or by someone acting under her instruction, pretending to be the deceased and using her SIM card. When the appellant reappeared the sisters told her what had happened.
29. The prosecution's telephone expert, Mr Sexton, was called and produced a schedule in the familiar form indicating the "cell" site on which each relevant call was made or received. He stressed that matching a cell to the physical location where the call was made or received was not an absolute science. The deceased's SIM card was in the appellant's hand set (JOH/3) at the time of this 17 second call. At the start of the call the cell used was ID 22041 and at the end cell ID 21710. Both those cells are geographically close to The Towers, the block of flats where the deceased and the appellant lived, and where the appellant's brother Pawel and his partner were then staying. The issue was whether those cells could have been used if, for that call, the phone was not at The Towers but at Corsellis Square, where the appellant undoubtedly was at the material time. Mr Sexton's evidence was that he could not rule it out, but it was unlikely.
30. The effect of the fresh evidence is that it is impossible, rather than merely unlikely, that the call in question on the deceased's SIM card could have been made from Corsellis Square. The defence expert, Mr Banks has now conducted a thorough examination of the area in order to measure the "footprint" of the cells in question, something which the prosecution expert accepted at trial that he had not done.
31. The picture which emerges from Mr Banks' report (see para 8.6) is that the cells used by the appellant's own SIM (8459) were consistent with travel from The Towers to Corsellis Square at some point between 01:09 and 01:30. Then between 00:34 and 00:43 Pawel's SIM (8724) was removed from the handset JOH/3 and replaced with the deceased's SIM (0521). The SIM cards were swapped back again at some time between 01:40 and 04:28. Thus it is argued by Ms Bennett-Jenkins that the overwhelming inference is that it was Parval who switched the cards and made the call to Mariola at 01:34. By inference it would follow that the woman's voice was probably that of his partner, Klaudia.
32. In the summing up (at page 90A) the judge reminded the jury in detail of the calls and texts around the time the appellant and the two sisters were at Corsellis Square. The judge pointed out that the call at 01:34 used cells which were among the best sites for The Towers although Mr Sexton had said it was a possibility that the phone could have been over at Corsellis Square and produced that result. He could not rule it out, but it was unlikely. The judge said the jury would have to consider carefully where that call was made from.
33. It is important to see this call at 1:34 in context. Why had the appellant taken the sisters over to Willis's flat in Corsellis Square at all? The appellant had just learned that Alicja had reported the deceased missing earlier that night. The appellant said she should come to Willis's place with her to look for the deceased (see summing up, at page 87B). They met at The Towers, where the appellant showed her a text she had purportedly received from the deceased at 00:44 saying "I am OK, Szmulico, thank you. You did not do well by calling the police and telling Ala." "Szmulico" was a term of endearment which convinced Alicja that her sister was still alive and she called the police to inform them. At 00:45 the appellant had sent a text in reply to the decesased's number expressing concern that "….nobody can get through to you, everybody is worried, the children are asking where is mummy". On the way to Corsellis Square with the sisters the appellant went into a lot of detail about the deceased's relationship with Willis. The inference is that the appellant took the sisters there in order to demonstrate that she believed the deceased was still alive and they might find her there.
34. That must, however, be set against the appellant's own evidence (ibid, page 83B) that, as from the early hours of 16^th/17^th November, she knew that the deceased had been fatally injured. Her explanation to the jury for taking part in the pretence that the deceased was still alive was that she wanted to avoid any suspicion falling on her brother Pawel, who she realised must have been the killer. We observe, therefore, that when the appellant received the "Schimulkio" text from the deceased's SIM at 00:44 and replied at 00:49, long before setting off for Corsellis Square, she must have known that she was taking part in an elaborate pretence to enable her to deceive the sisters so they would call off the police, and she willingly went along with it.
35. We have set out how the prosecution opened the evidence about the call at 01:34. It was not suggested that the call could only have been made by the appellant, but rather that it was made either by her or someone acting under her instruction. We do not have a transcript of the prosecution's closing speech so we do not know precisely what was said in closing about this call. We noted that in Ms Bennett-Jenkins' perfected grounds of appeal, at paragraph 102 (vii), it was suggested that one of the pieces of evidence that weakened or destroyed the inference of guilt from the circumstantial evidence was the "abandonment" by the prosecution of the 01:34 call from the deceased's phone to Mariola. Ms Bennett-Jenkins qualified this in her oral submissions, explaining that the prosecution still left open the possibility that the appellant had made the call herself. However, it is clear to us that, as at the start of the case, the jury were not positively encouraged to conclude that the call must necessarily have been made by the appellant herself, rather than by someone with whom she was in cahoots.
36. In deciding whether to receive fresh evidence, we are required by section 23(2) of the Criminal Appeal Act 1968 to have regard in particular to: (a) whether the evidence appears to the court to be capable of belief; (b) whether it appears to the court that the evidence may afford any ground for allowing the appeal;(c) whether the evidence would have been admissible in the proceedings; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
37. Plainly the evidence is capable of belief, and plainly it would have been admissible at the trial. The issues are whether there is a reasonable explanation for the failure to adduce the evidence at trial, and whether it appears that the evidence affords a ground for allowing the appeal.
38. Ms Bennett-Jenkins submits that because service of the telephone evidence was "drip fed" by the prosecution, with no full disclosure of all the material the defence requested until the trial was well underway, it was not appreciated by the defence that the prosecution expert had not checked and measured the "footprint" of the cells in question. Although he had prepared a report which was served, and we assume he was present for the evidence of the prosecution expert and available to give evidence himself, he had not addressed the issue raised in the fresh evidence. On behalf of the prosecution, it is pointed out that Mr Sexton's report, which was served on 1^st May 2014, four weeks before the trial started, did make it clear what local survey data was relied on and made it clear that no survey measurements had been carried out.
39. We are not overly impressed by the explanation for failing to adduce this evidence at trial, despite the difficulties put forward. We strongly suspect that the main reason for not addressing the point sooner was the late change of instructions by the appellant in her amended defence statement (served mid-trial on 19^th June) that she was now blaming her brother Pawel for the murder and for the use of the deceased's SIM card on this and other occasions. Despite our reservations on this first issue, however, we think that the more important question is whether the fresh evidence may afford any ground for allowing the appeal.
40. Ms Bennett-Jenkins pitched the argument very high. She contended in her advice in support of funding for this expert evidence that, if the point was substantiated, it would destroy the inference the prosecution asked the jury to draw from the circumstantial evidence, namely that the appellant killed the deceased. Her case was that her brother was the killer. This evidence demonstrated that her brother had made the call. The prosecution called the brother as a witness of truth. Had it been known from the outset that he had made this call, demonstrating that he was complicit in the pretence that the deceased was still alive, the prosecution would never have called him because he could not have been put forward as a witness of truth. The defence cross-examined him using cell site evidence and had shown him to be lying about where he was on the night of the murder. If it was impossible for the appellant to have made this crucial telephone call, that would provide new evidence to demonstrate that the appellant's conviction is unsafe.
41. On behalf of the prosecution it is submitted that the call in question was a miniscule piece of evidence in an overwhelming case. It was not a crucial piece of evidence. It mattered not to the prosecution whether it was the appellant or someone acting on her instruction who made the call, and this had always been the prosecution's stance.
42. It is submitted by the prosecution that there was other much more compelling circumstantial evidence. We have already set out that evidence at paragraph 4 above.
43. We accept the prosecution's submissions. We do not think that this fresh evidence has the significance that is contended for. We do not think it is capable of affording a ground for allowing the appeal. The credibility of Pawel was much more effectively attacked by cross-examination about his movements on the night of the murder based upon the telephone schedule. The prosecution had never suggested that the call must have been made by the appellant herself and not by anyone else. It was perfectly open to the jury to conclude that the call had been made by her brother (or his partner) in pursuit of the common aim, with the appellant, of concealing the fact of the deceased's murder. The fresh evidence does no more than reinforce that possibility. It does not undermine the powerful circumstantial case against her that she was the murderer.

Conclusion

44. The appellant was rightly convicted of murder. The case against her, although circumstantial, was overwhelmingly strong. We are satisfied that none of the grounds advanced by Ms Bennett-Jenkins, individually or cumulatively, call into question the safety of her conviction. The appeal is dismissed.