Expert evidence – Juries – Murder – Conflicting evidence

(1) Lon Trach Gian (2) Noor Azura Mohd-Yusoff v Crown Prosecution Service: CA (Crim Div) (Lord Justice Moses, Mr Justice Keith, Mr Justice Foskett): 3 December 2009

The appellants (G and M) appealed against their convictions of murder and, were that appeal to be unsuccessful, G appealed against sentence in respect of the minimum term imposed of 22 years’ imprisonment.

G and M had been accused of murdering the victim (X) at the house they had occupied. There was no dispute that X had taken a massive quantity of cocaine before her death. Attempts were then made to conceal her identity by decapitation and cutting off her hands, and G was alleged to have disposed of the remains of her body in different places. At trial, not only was there dispute as to whether X had been killed, but there was also an issue as to where she had been killed. Detailed forensic examination at G and M’s former residence revealed none of the signs which might be expected had X been murdered or decapitated there, although there was evidence which demonstrated that her body had been at the house and that G and M had engaged in vigorous cleaning. G and M had submitted to the judge that there was insufficient evidence on the basis of which a reasonable jury properly directed could convict. The judge rejected those submissions and, in due course, G and M were convicted. They were sentenced to life imprisonment with recommendations that they serve minimum terms of 22 and 15 years respectively. G’s longer sentence was based on his having a previous conviction for violence. G and M contended that the judge ought to have withdrawn the case from the jury as there was insufficient evidence either as to the cause of death or, if X was killed, that she had died at their former residence and consequently insufficient evidence to implicate either of them. G and M argued that no reasonable jury could conclude that X had died as a result of the injuries to her neck and attempts to cut off her head rather than as a result of the cocaine, particularly where, during cross-examination, the pathologist had not felt able to exclude what he described as a theoretical possibility that X had died after the infliction of the neck wounds from the amount of cocaine consumed, although that was not his medical opinion. G and M further submitted that the judge had summarised the evidence in a way which unfairly slanted it in favour of the prosecution. In respect of sentence, G contended that a minimum term of 22 years was manifestly excessive when compared with that of M, and that the disparity was not justified.

Held: (1) The mere fact that as a matter of scientific certainty it was not possible to rule out a proposition consistent with innocence did not justify withdrawing the case from a jury. Juries were required to consider expert evidence in the context of all other relevant evidence and make judgements based upon realistic possibilities, R v Bracewell (Michael Geoffrey) [1979] 68 Cr App R 44 CA (Crim Div), R v Dawson (Brian) [1985] 81 Cr App R 150 CA (Crim Div) and R v Kai-Whitewind (Chaha’oh Niyol) [2005] EWCA Crim 1092, [2005] 2 Cr App R 31 applied. It had been open to the jury to rely upon the pathologist’s medical opinion and to have rejected the possibility that X had died from cocaine. The judge had, therefore, been correct in refusing to withdraw the case from the jury on that basis. Moreover, powerful though the evidence of the absence of blood at G and M’s former residence was, it had to be set against the evidence that X’s body had been there. It was the function of the jury, not the judge, to choose between evidence powerfully in favour of the prosecution or the defence. The jury in the instant case had been faced with a stark choice between the rival arguments, but the fact that it was faced with such a choice did not afford any basis upon which the judge should have withdrawn the choice from them. Furthermore, while it was true that the judge had from time to time made comments adverse to G, in the context of his summing up as a whole, those comments could not sensibly be said to have led the jury to adopt an unjustified hostile approach to the evidence which implicated G. The summing up as a whole had fairly considered the essential points on which G and M had relied, and identified the evidence which went to those issues. It was not unfair and any criticism of it had to be rejected. In all the circumstances, there was no basis for a conclusion that the guilty verdicts were unsafe.

(2) The disparity between the minimum terms could not be justified on the basis of G’s previous conviction. The minimum term of 22 years was accordingly quashed and substituted by one of 19 years.

Appeals against convictions dismissed; appeal against sentence allowed.

J Humphryes QC (instructed by HGH) for the first appellant; P Carter QC (instructed by Edward Duthie) for the second appellant; B Altman QC, Z Johnson (instructed by CPS) for the respondent.