Olejarczyk, R. v [2018] EWCA Crim 788

[2018] EWCA Crim 788Case No 201700111 C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 20 March 2018
Strand
London, WC2A 2LL
B e f o r e:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE SWEENEY
MR JUSTICE LEWIS
Between
R E G I N ACrownv
Between
PIOTR OLEJARCZYK
Computer Aided Transcript of the Stenograph Notes ofWordWave International Ltd trading as DTI,165 Fleet Street London EC4A 2DY,Tel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr NJ Lumley QC appeared for AppellantMr A Thomas QC and Mr P Dobson appeared for Crown
J U D G M E N T (Approved)

SIR BRIAN LEVESON: On 22 December 2016 in the Crown Court at Manchester before the Recorder of Manchester, HHJ Stockdale QC, and a jury this applicant, who is now aged 30, was convicted of murder by majority verdict, eleven to one. On the following day he was sentenced to imprisonment for life, with the period specified as a minimum term pursuant to section 269(2) of the Criminal Justice Act 2003 of twenty-one years less time spent on remand.

[2]On that day one of the jurors passed a note to the sentencing judge concerning the conduct of the foreman of the jury. As a result of that note the foreman was himself arrested and the subject of a police investigation. He later pleaded guilty to two offences contrary to the Juries Act 1974 as amended, that is to say offences of conducting research in relation to the case which he was then trying and thereafter communicating that research to another or other jurors. On 13 September 2017 the foreman of the jury was sentenced to a term of four months' imprisonment. It is in those circumstances initiated by the note passed by the juror to the sentencing judge that this applicant applies for leave to appeal against conviction, which application has been referred to the full court by the Registrar.[3]It is important to know something of the facts of the alleged murder. The applicant and Jakub Gorski (the deceased) were both Polish nationals and were known to one another. On the evening of 9 June 2016 they had a disagreement at the applicant's home in Salford, whereupon the applicant threatened and chased the deceased with a knife. On the following day the deceased and his brother went looking for the applicant at his address. Coincidentally they saw him in Hope Street, Salford, whereupon the deceased shouted angrily in Polish and the applicant went into his friend's house at 2A Hope Street, armed himself with a kitchen knife and returned. In the confrontation which followed the deceased sustained a single stab wound to the chest which fatally penetrated his heart. The blade passed between the ribs and penetrated to a depth of about 12 centimetres, passing through the heart and out the other side.[4]Paramedics were called and the deceased was conveyed to hospital where emergency surgery was not effective, such that at 2.30 am on 11 June the deceased died. Meanwhile, the applicant had fled the scene but 24 hours thereafter he handed himself in to the police and was arrested.[5]He was interviewed on 12 June on a number of occasions. In the first interview he said that he had defended himself as the deceased and his brother had tried to rob him. The deceased had struck and kicked him and the deceased's brother had taken his phone, which he had dropped. He said that he had the knife on him as he used it at work to cut sandwiches. He said that he used the knife to scare the deceased off, had no intention of hurting anyone and had wanted to get back to his friend's house and wait for the deceased to go away. The day before the fatal incident the deceased had asked him to get some cocaine. He had said it would take 20 minutes and the deceased had hit him. He had told the deceased to leave his home.[6]In the second interview the applicant essentially amplified the account that he had given. He had stated the deceased lunged at him and had stabbed himself on the knife. In the third interview the applicant was told that there was evidence that he had obtained the knife from his friend's address. The applicant then asked to consult with his solicitor, and in the fourth interview he admitted that he had been lying about the knife and said that he had done so because he was scared. He said that he had obtained the knife in order to scare the men so that they would let him go home.[7]The prosecution case was that the applicant murdered the deceased by deliberately stabbing him to the chest with a forward thrust of the knife. The applicant's conduct, it was argued by the Crown, had not been reasonable. He had been in a place of safety (namely his friend's home) and was not in imminent danger when he returned to the scene armed with a knife seeking out a confrontation with a man unarmed who had been 100 to 150 metres down the road.[8]The evidence that the prosecution relied upon consisted of CCTV which captured the applicant chasing the deceased on 9 June, the evidence of the deceased's brother describing the fatal blow as deliberate, the evidence of two residents in Hope Street: the first spoke of "the applicant attending his home and asking for a knife before going to the kitchen and then leaving the address"; the second who acknowledged a statement which he had made to the effect that there was "an agitated man in the street shouting and swearing about being threatened with a knife by the applicant".[9]A taxi driver said that he had "witnessed one man with a knife attempting to 'hit the other guy with the knife, he was basically attacking him.' The other man was defending himself." Another eyewitness who was unavailable to attend saw the deceased and the applicant shouting at each other, whereupon the deceased attacked the applicant. This evidence was not agreed. There were other witnesses whose evidence was not agreed but read to the jury.[10]The applicant admitted lying in his police interview in respect of the source of the knife and in respect of his visit to his friend's home after the first confrontation to collect the knife. That also was evidence relied upon, as was the evidence of the pathologist who confirmed the death as consequent upon blood loss and cardiac arrest caused by a stab wound which had required mild to moderate force. The pathologist observed the knife would have had to have been held very firmly for the deceased to have tripped and fallen onto it.[11]The defence case was that the applicant had acted in lawful self-defence and lacked the requisite intent. The deceased and his brother had been waiting in the street and the applicant had retreated to his friend's house and armed himself to scare the men so he could return home. He had pointed the knife at the deceased and backed away when the deceased lunged forward and stumbled or tripped onto the knife, causing injuries which were fatal.[12]The issue for the jury therefore was whether they were sure the applicant had deliberately stabbed and killed the deceased other than in lawful self-defence, with the requisite intention. It is clear from what subsequently emerged that there was no doubt that the jury rejected both the defences of accident and self-defence. The issue therefore turned upon the intention of the applicant when he deliberately injured the deceased with the knife.[13]The jury retired after a summing-up in respect of which no complaint whatsoever is made. They twice returned with notes to the effect that they had not reached unanimity, although it is clear from the language used by the judge that they had indeed revealed material which he could not impart to the jury. Ultimately the judge provided a majority verdict direction. After a further 21 minutes had elapsed the jury returned to convict the applicant of murder by a majority verdict of eleven to one.[14]What happened thereafter was that one of the jurors (who was the dissenting juror) passed a note to the sentencing

judge in these terms:

"During the last session before the Jury came down with the verdict one of the jury told me he had previous (sic) read about this case in a newspaper report about June, this year. Should he have mentioned this at the time he was selected to go on the Jury?! During our deliberations, he made strong suggestions 'I have a Hunch' that the accused was a violent person, that knew how to handle a knife or may have been in the army. These comments POSSIBLE (sic) affected some of the other jury member's decision."
The police were alerted and the relevant juror, who had been the foreman, was spoken to by the police under caution. Seized from his possession were his mobile phone, his laptop and his iPad.[15]The investigation revealed that towards the end of the trial the foreman had conducted internet research to find out about compulsory military service in Poland. An article was revealed (which we have seen) which identified that military service in Poland ended in 2008. That search was repeated after the deliberations had begun. An investigation conducted with the authority of the Registrar revealed that no other juror remembered a conversation about national service, although the one juror who reported the matter had speculated that the applicant "may have been in the army".[16]The juror, during the course of his interviews under caution, accepted that he had made some comment to another juror about Poland and national service. He also accepted, as had been the complaint, that he had asserted that the applicant was a nasty man who knew how to handle himself, but he said that had been based on the evidence he had heard during the trial.[17]We observe that all members of the jury were approached as a result of the authority granted by the Registrar. Only two jurors were prepared to make statements. The first said nothing at all about the question of national service. The second observed that the foreman had said that he knew how to use a knife, but observed he thought this was his opinion, not based on something he knew about personally.[18]The offences of which the juror was convicted do not, of course, require that the information obtained undermines or may undermine the trial. It is sufficient to be guilty of an offence under the Juries Act as amended that the research is undertaken, contrary to the strictest instructions provided by the judge not merely at the beginning of the trial but consistently throughout it.[19]In this court Mr Lumley has argued that the foreman will have exercised a degree of authority with others potentially turning to him for advice and direction, with the result that he wielded unfair power having regard to the information which he had found out. That information, as was observed, was no more than that national service in Poland had ceased in 2008. He argues that although that is all the information that is known about the juror's researches, this court cannot be sure about what is unknown of his researches, and that having ignored the judge's direction in one regard it is inappropriate to assume that he did not disregard it in any other fashion. In our judgment, there is no basis for that contention in the light of the investigation conducted by the police with the authority of the Registrar.[20]It is against that background that we consider the law and the general principle that investigation of what takes place in a jury room is entirely forbidden save only where extraneous material is produced or the jury have demonstrated that they have totally repudiated their oaths in the way in which they conduct their deliberations (see, for example, the famous case concerning the ouija board, R v Young [1995] 2 Cr App R 379). The position in relation to extraneous material has been the subject of considerable discussion in the authorities. In Thompson [2010] 2 Cr App R 27,

Lord Judge Chief Justice, citing McDonnell [2011] 1 Cr App R 28 said at paragraph 11:

"Just as it would in any other instance where it was satisfied that extraneous material had been introduced, the approach of this court is to make inquiries into the material. If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe ... If the material does not affect the safety of the conviction, the appeal will fail."
That case was followed in R v Deny [2013] EWCA Crim 481 in which it was made clear by Mitting J at paragraph 45:
"[We wish to emphasise] there is no rule that because material has been introduced to the jury after retirement a conviction must be quashed as unsafe."
[21]It is against that background that we return to the issues which were left for the jury in this case. The issue effectively for the jury from the outset was first to decide accident; second, self-defence; and third, whether the intention to cause really serious harm had been proved. In our judgment, whether or not military service in Poland had been abolished, irrespective of the unasked question whether this applicant had ever undertaken military service, does not assist the jury in the context of their deliberations in this particular case. In our judgment, following entirely the approach identified by Lord Judge in Thompson, we do not accept that the material affects the safety of the conviction. In those circumstances, this application is refused.