Holden, R v, Court of Appeal - Criminal Division, January 31, 2017, [2017] EWCA Crim 31

Resolution Date:January 31, 2017
Issuing Organization:Criminal Division
Actores:Holden, R v
 
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Case No: 201601133/B3

Neutral Citation Number: [2017] EWCA Crim 31

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM NOTTINGHAM CROWN COURT

MRS JUSTICE DOBBS

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/01/2017

Before:

LORD JUSTICE DAVIS

MR JUSTICE JAY

and

MR JUSTICE LAVENDER

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Between:

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Jonathan Mann QC for the Appellant

John Price QC for the Respondent

Hearing dates: 14th & 15th December 2016

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JudgmentLord Justice Davis:

Introduction

  1. The appellant, Kerry Holden, was on 8 March 2012 convicted by a majority verdict of murder, after a trial before Dobbs J and a jury at Nottingham Crown Court. The victim was a young man called Luke Moran. The appellant was sentenced to life imprisonment with a specified minimum term of 18 years (less time spent on remand in custody). A subsequent application for leave to appeal against conviction was first rejected on the papers by the single judge and then, on renewal, by the Full Court on 25 June 2013.

  2. This present appeal is brought on a reference by the Criminal Cases Review Commission (``CCRC''). It is based entirely on fresh evidence which the appellant seeks to adduce. The evidence is principally in the form of a subsequent confession by another individual, Stuart Murray, to the killing of Moran. Two particular features of the appeal are, first, that the confession sought to be relied upon was made at a time when Murray was undoubtedly mentally ill; and, second, that the confession has since been retracted by Murray (he having in the meantime been receiving medication and psychiatric treatment).

  3. The appellant was represented before us by Mr Jonathan Mann QC. The respondent Crown was represented before us by Mr John Price QC. Neither counsel had appeared in the proceedings below. We would like to acknowledge their careful and thorough presentation of their respective cases before us. Both counsel were agreed that the essential issue for this court was whether the confession of Murray sought to be relied upon is capable of belief. Mr Price fairly accepted that, if it was to be so assessed then he could not seek to argue that the conviction of the appellant was nevertheless safe.

    Background facts

  4. A party was held on the evening of 19 August 2011 by a woman called Kerry Lambert at her home address of 4 Eucalyptus Avenue on the Clifton Estate in Nottingham. There were a number of guests; it is clear enough that a lot was being drunk. The appellant was one of those who had been invited: she had arrived shortly after 7 pm.

  5. The party continued into the night. During the course of it a number of uninvited guests attended. These included Luke Moran, a 25 year old man, and two friends of his, Logan Buchanan and Kyle Batt. Moran and Batt each came by bicycle. Buchanan arrived separately. They arrived at around midnight, although the evidence of their time of arrival was not wholly clear.

  6. Until then there had been no unpleasantness at the party. The appellant immediately recognised Moran as someone who she considered had previously beaten up one of her brothers. There was an amount of evidence to the effect that by then she was drunk. She at all events became angry and confronted Moran in the house and shouted at him, standing close to him. He disputed her assertions, seemingly trying to laugh it off. She persisted. At one point, the appellant was seen to go into the kitchen before emerging and continuing with the argument with Moran.

  7. In the meantime, an argument had also developed between Logan Buchanan and his former girlfriend's sister, Debbie Billington. This too became heated. They both threw drinks over each other.

  8. Moran, Buchanan and Batt, at all events, together decided (encouraged to do so by Kerry Lambert) to leave the party. Moran went outside into the front garden to collect his bicycle. There was an amount of evidence to the effect that the appellant was also seen in the front garden, confronting Moran and continuing the argument whilst he was astride his bicycle.

  9. Buchanan and Batt had themselves already gone out into the front garden and sought to leave. This was shortly before 01.00 am. Batt said that he saw no one else in the street as he left. There was some discrepancy in their evidence as to whether Batt's bicycle was still in the front garden of 4 Eucalyptus Avenue or whether he could not find it there and it was only retrieved some distance away. Be that as it may, it was not in dispute that Buchanan and Batt left together, at a time when Moran was observed still to be arguing with the appellant in the garden. The appellant was still shouting at Moran. Buchanan and Batt turned right out of the front garden of 4 Eucalyptus Avenue and then immediately right again into Pieris Drive (styled by some witnesses at trial as a continuation of Eucalyptus Avenue). Pieris Drive then, after some 60 metres, bends sharp left leading up to Hartness Road to the north: which was the route they - and, it is to be inferred, Moran - were intending to take. At some stage, at any rate, Buchanan had got onto the back of Batt's bicycle by way of a ``croggy''.

  10. Very shortly after Buchanan and Batt left, Moran himself left 4 Eucalyptus Avenue on his bicycle. It is impossible to be precise as to timings but the appellant herself was to say in evidence, as recorded in the summing-up, that she accepted that Moran must have caught up with Batt and Buchanan ``within seconds''. There was evidence that Moran was observed to be smiling as he left on his bicycle.

  11. There is no dispute that Moran did catch up with Batt and Buchanan in Pieris Drive and in fact went past them on his bicycle. Quite where he passed them was not agreed by Batt and Buchanan. Buchanan thought that it was in that part of Pieris Drive shortly after the right turn from Eucalyptus Avenue. Batt thought that it was further on, in that part of Pieris Drive after it bent left towards Hartness Road. Both marked the respective locations, as they remembered them, on a map which was before the jury. Buchanan's evidence was that Moran passed them at the spot where they had retrieved Batt's bicycle and that it ``took no longer than a minute'' to walk there. (Subsequent calculations show that it can take about 34 seconds to walk to the spot). Buchanan was also to say in evidence at trial that he saw no one on Eucalyptus Avenue after he left 4 Ecualyptus Avenue and before Moran cycled past. As for Batt, he said that he saw Moran pass them ``about a minute down the road''.

  12. According to Buchanan, as Moran rode past them he was bicycling fast and was smiling. As he went past, Moran said ``I've been stabbed'': Buchanan thought that he was joking and did not take it seriously. According to Batt, he heard Moran say as he rode past ``I've been stabbed, I've been stabbed''. At all events, the two followed Moran on Batt's bicycle. Moran had now passed out of sight and had turned right onto Hartness Road. They also (after Buchanan had disposed of his wet T-shirt) turned right onto Hartness Road. A short distance after that they saw Moran lying on the ground next to his bicycle. Buchanan said that he saw blood coming from his chest. Moran did not seem conscious and never spoke. Buchanan was to say that at this stage he also saw one of the appellant's brothers on the other side of Hartness Road: when he asked what had happened to Moran Buchanan replied that it was his sister.

  13. Buchanan then rode back to 4 Eucalyptus Avenue for assistance, telling them that Moran had been stabbed and that an ambulance should be called. Everyone then ran towards the place in Hartness Road where Moran was lying: the group included the appellant. When they arrived there, the appellant was heard by various witnesses to say ``I didn't stab him'' (or ``I did not stab the bastard'') and ``I can't go down for this, I've got three kids''.

  14. Some passing motorists had made a 999 call timed at 01.09 am. An ambulance speedily arrived. No significant amount of blood was noted by the paramedics. Moran regained consciousness in the ambulance but he gave no information about his assailant. He was to die in hospital. Subsequent pathological evidence was to the effect that there had been a single stab wound to the heart. The depth of the wound was consistent with use of a knife with a blade length of 10 cms and width of 1.5 to 1.8 cms.

  15. After the ambulance had arrived, Buchanan went to the house of a friend and (not using his real name) made a 999 call: this was at 01.21 am. In the course of that, he stated that the appellant (whom he identified as of mixed race, alone of the female party guests) was the person who had stabbed Moran. He also stated to the operator that Moran had passed him on his bicycle saying ``I've been stabbed'' which he did not take seriously. Shortly after that, however, Buchanan stated to the operator that Moran had gone past him saying ``she's stabbed me, she's stabbed me''. At trial, his recollection was that he had said the former but he agreed that the 999 call was much closer in point of time and his memory may have been better then.

  16. In due course the appellant was arrested and interviewed. She denied all responsibility for the stabbing. During the course of the interviews, the appellant twice lied. First, she initially denied having followed Moran out into the front garden before he left on his bicycle (in due course, she was to accept that she had). Second, she initially denied saying words to the effect ``I have got three kids, I can't go to prison for this''. (Subsequently, she was to accept that she had said this). The trial judge in due course gave a full Lucas direction.

    The trial

  17. At trial, the appellant's two brothers were co-accused, on a count of...

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