Zejmowicz & Anor, R. v

On 5 December 2008, after a trial at Nottingham Crown Court before the Recorder of Nottingham (HHJ Stokes QC) and a jury, the appellants, Krzysztof Zejmowicz and Tomasz Ruskinski, were convicted of murder. They appeal against conviction, with leave granted by the full court.

There are three grounds of appeal. The first, common to both appellants, is that the presence on the jury of a prison officer who worked at the prison where the appellants and two prosecution witnesses were held for periods before or during the trial rendered the trial unfair. The second, pursued by Ruskinski alone, is that the trial judge erred in declining to discharge the jury after he had upheld a submission of no case to answer in respect of a third defendant, Tomasz Karbowski (known as “Little Tom”, whereas Ruskinski was known as “Big Tom”). A similar ground was originally advanced by Zejmowicz but in his case it was not renewed after leave to appeal was refused by the single judge. The third ground, also applicable to Ruskinski alone, is that the judge erred in allowing the prosecution to adduce hearsay evidence in the form of a video interview of a witness who was absent abroad.

The charge of murder related to the death of Leszek Milon, who was found dead in his flat in Radford Road, Hyson Green, Nottingham, on Saturday 19 January 2008. He had come from Poland to live in this country in 2005 and had separated from his partner in September 2007. He shared the flat with Zejmowicz and Little Tom.

Paramedics called to the flat on the Saturday evening confirmed that Mr Milon was dead. They observed that he had facial injuries and that his trousers were pulled down to just below the groin, exposing his genitals. It was accepted at trial that somebody had assaulted him in the course of the Saturday, probably in the afternoon, and had inflicted very severe injuries upon him. A post mortem found almost 60 recent injuries, including six broken ribs. He died from head injuries consistent with punches, kicks or stamping, during which he sustained sufficient impact to the head to cause both subdural and subarachnoid bleeding and traumatic injury to the brain. He also had a number of obviously older injuries.

The prosecution case was that the appellants and Little Tom had carried out a joint attack on Mr Milon, causing the injuries which led to his death on the Saturday, and that they had intended at the very least to cause him really serious harm.

There was evidence from a Pastor McKenzie, who owned a shop called “AFC Chicken” on Alfreton Road. He employed a man called Pawel Zygaj to carry out work of refurbishment there. He also allowed Ruskinski, who was homeless at the time, to live in a flat above the shop, in return for Ruskinski offering to repair and redecorate the flat. On 14 January, a few days before the death of Mr Milon, the pastor met two other Polish men at the premises: they were Zejmowicz and Little Tom. During that week several Polish men were working at the AFC premises. The pastor saw Mr Milon on Thursday 17 January and noticed that he had serious injuries to the face. He suggested that Mr Milon should go to hospital but Mr Milon refused. He told the pastor that he had been attacked by the Polish mafia. None of the others in the group appeared to be concerned by the injuries.

A South African builder by the name of Sydwell Mzamo, who knew the Polish group as a result of working with them at the AFC premises, went to Mr Milon’s flat in Radford Road on the Saturday morning to collect a drill. The appellants, Little Tom and the deceased were all present there. The deceased had an extremely injured face and was not allowed by the others to take a cigarette or a drink from Mr Mzamo. When Mr Mzamo left, all four men were in the flat drinking. Mr Mzamo returned that evening, a few minutes before the arrival of Roman Ksiazek and others as described below.

Roman Ksiazek had known the deceased for a couple of months and would occasionally join him in the flat for a drink. He had seen him a few days before his death and had noticed that he had a black eye. He had also been present at the AFC premises when the pastor wanted the deceased to go to hospital. Roman gave evidence that the appellants had been responsible for the deceased’s injuries during this period and that the deceased had been forced to perform oral sex. Much of this evidence, however, was based on what Roman had been told by Little Tom and was inadmissible against the appellants: we will have to return to this when considering the ground of appeal relating to the judge’s refusal to discharge the jury after he had ruled that there was no case to answer against Little Tom. Similar evidence, raising the same issue, was given by Pawel Zygaj.

Roman said that on the Saturday evening he went to the deceased’s flat to get the keys for the pastor’s shop. Nobody answered the door, so he broke the window. Little Tom then opened the door and said to him, “Roman, I think they’ve killed him”. Inside he saw Ruskinski sitting calmly in the room, the deceased lying on the floor next to the sofa, and Zejmowicz running round asking what they were going to do with the body. Two other friends, namely Pawel Zygaj and Piotr Dusczczak, had accompanied Roman to the flat. The three of them spent some time there before Roman and Piotr went to a local hairdressing salon and asked the owner to call for an ambulance. The owner and the owner’s partner accompanied the two men back to the deceased’s flat and awaited the arrival of the ambulance.

Zejmowicz was present in the flat when the police arrived. He was taken to the police station and was then arrested as a result of information given by Little Tom. He told the police in interview that he had left the flat after Mr Mzamo’s first visit, at approximately 2.00 pm, and had not re-entered it until after the arrival of the emergency services. That account, however, was not supported by CCTV footage from the area, which appeared to show him entering the flat at 12.33 pm, leaving at 5.38 pm, re-entering at 6.07 pm and leaving again at 8.43 pm, after the discovery of the body. Zejmowicz said that he was not involved in any violence on the deceased. Officers noted that he had an injury to his right ankle, which resulted in him being taken to hospital. On forensic examination, blood matching that of the deceased was found on his shoes and clothing. A back-calculation of his blood-alcohol level revealed that he had in excess of 300 mg of alcohol per 100 ml of blood at the material time.

Ruskinski left the flat at about the time the ambulance arrived. He was not arrested until the following Wednesday, 23 January. He told the police in interview that the deceased had regularly fallen over owing to his excessive drinking. He said that he himself was present in the flat on the Saturday afternoon but he was extremely drunk and slept for most of the day. He heard an argument between the deceased and Zejmowicz and had a vague recollection of Zejmowicz assaulting the deceased in the living room. Some blood matching that of the deceased was found on Ruskinski’s shoes but that evidence was of limited value in itself.

Part of the evidence against Ruskinski concerned admissions he had allegedly made when he visited a local shop on the Monday evening following Mr Milon’s death. This is addressed in the third of the grounds of appeal considered below.

Both appellants gave evidence in their own defence, in each case elaborating on the account they had given in interview.

That synopsis, though far from complete, provides a sufficient background for consideration of the three grounds of appeal.

The jury sworn in on the first day of the trial was discharged on the second day because one of the jurors had medical problems. A second jury was sworn in, consisting of nine of the original jurors and three new ones. One of the new jurors was a Mr Nightingale, who was a serving prison officer at HMP Nottingham. His occupation did not emerge until after the trial. It was then relied on by the appellants as giving rise to an appearance of bias and rendering the trial unfair.

It is unnecessary to rehearse in detail the law relating to jury bias. As the Court of Appeal said in R v Khan [2008] EWCA Crim 531, [2008] 2 Cr App R 13, at [7], the question of whether a jury is independent and impartial falls to be determined by an objective test: “whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased”. The court went on to consider the various forms that partiality can take, distinguishing at [9] between partiality towards the case of one of the parties and partiality towards a witness, and also referring at [12] to the situation, loosely described as bias, where a juror knows or learns of some matter prejudicial to the defendant, typically the fact that he has a criminal record when this has not been admitted in evidence.

One of the cases considered in Khan involved the presence of a serving prison officer on the jury. The court stated at [120] that “the mere suspicion that a juror might, by reason of having been employed as a prison officer in a prison where the defendant was held, have acquired knowledge of the defendant’s bad character could not, of itself, lead an objective observer to conclude that the juror had an appearance of bias”. In that case the Criminal Cases Review Commission had carried out an investigation at the request of the court and had ascertained that the juror had no knowledge of the defendant. In those circumstances the court concluded that there was no basis for contending that the fact that the prison officer had served on the jury was in any way prejudicial to the defendant, let alone that there was an appearance of bias.

The court did, however, refer at [131]-[132] to the desirability of precautionary measures so that any risk of jury bias was identified before the trial began. It did not think it appropriate to try to formulate detailed guidance as to the steps to be taken, which would involve instructions to be given by, among others, the prison authorities to their employees, coupled with guidance to court officials. But it referred to one matter that should receive attention without delay:

“It is essential that the trial judge should be aware at the stage of jury selection if any juror in waiting is, or has been, a police officer or a member of the prosecuting authority, or is a serving prison officer. Those called for jury service should be required to record on the appropriate form whether they fall into any of these categories, so that this information can be conveyed to the judge.”

Further, the court invited all relevant authorities, including the prison authorities and Her Majesty’s Court Service, to consider the implications of the judgment and to issue such directions as they considered appropriate.

In the present case, following the procedure adopted in Khan, a constitution of this court presided over by Stanley Burnton LJ exercised the powers of the court under s.23A of the Criminal Appeal Act 1968 to invite the Criminal Cases Review Commission to carry out an investigation in order to establish the relevant facts. The Commission produced a detailed report, dated 27 July 2010. A constitution of the court presided over by Pill LJ, having considered the report, granted leave to appeal on this ground.

The principal findings in the Commission’s report or to be derived from the documentary material exhibited to the report are as follows:

On the basis of that material Mr Wood QC, for Zejmowicz, submitted that the presence of the prison officer on the jury gave rise in this case to the appearance of bias. There were a number of significant features to the case. The procedures referred to at [131]-[132] of Khan had failed. Although the juror had clearly indicated on the expenses form that he was a prison officer, that information was not communicated to the judge. There had also been a failure by the Prison Service to bring to the juror’s attention the guidance issued by Her Majesty’s Court Service. Even when it became obvious to the juror that Zejmowicz and Duszczak were in custody at HMP Nottingham, he did nothing. His claim that he did not realise previously that they had been in custody there was extraordinary, given that there was a maximum of 130 prisoners on G wing at any one time. This raised a question-mark about what he told the Commission, though he could not be cross-examined on it. If the defence team had known at the time that he was a prison officer, they would have objected to him being empanelled or continuing as a juror. A particular concern related to the information that a prison officer could obtain about prisoners, such as their behaviour in prison or their security risk (though Mr Wood did not suggest that any adverse information of that kind might in fact have existed in relation to Zejmowicz).

Mr Evans QC, for Ruskinski, adopted Mr Wood’s submissions and added to them. He accepted that Ruskinski passed through the prison only for a short time. But he said that in Ruskinski’s case the concerns related not so much to the official information held about him but to the unofficial talk that might have been passing around the prison. There was a background of prolonged abuse of the deceased for some time before the events to which the charge against Ruskinski related. A significant number of Polish nationals passed through the prison and news of the ill-treatment of the victim must have gone round the Polish community there. Talk about it could have reached the ears of the prison officers (albeit Mr Evans accepted that any such talk would probably have been in Polish). This aspect was not explored with Mr Nightingale by the Commission. Nor was the significance of gossip in the prison considered in Khan. From the point of view of the objective bystander, the risk was huge.

We do not accept those submissions. We are satisfied that the fair-minded and informed observer, having considered the facts, would not consider there to have been a real possibility of bias in this case. It is of course very unfortunate that the declaration on Mr Nightingale’s expenses form that he was or had been a prison officer was not noticed or acted upon at the time, and that he himself had not seen or been aware of the relevant guidance and therefore did nothing further to bring the nature of his employment to the attention of the court. If his employment as a prison officer at HMP Nottingham had come to light at the beginning of the trial, there can be little doubt that he would have been asked to stand down as a precautionary measure and that this aspect of the present appeals, and the related cost of the investigation by the Criminal Cases Review Commission, would have been avoided. It does not follow, however, that his role as a juror gave rise in the event to an appearance of bias. That question must be assessed in the light of all the information now available; and on the basis of that information we can see no real cause for concern.

Mr Nightingale’s evidence to the Commission was clear, that he had no recollection of either appellant or of either of the two witnesses who had been held in HMP Nottingham; he had no knowledge of Zejmowicz or Duszczak that could affect his duty as a juror; and he had no knowledge of Ruskinski or Zygaj prior to the trial. Owing to the specific form of the questions put to him, there was not a precise symmetry between what he said about Zejmowicz and Duszczak and what he said about Ruskinski and Zygaj, but the net effect of his answers was that he was not aware of any of them from his employment on G wing. We do not accept the question-mark raised by Mr Wood about what Mr Nightingale told the Commission. The time spent by each of the appellants and witnesses on G wing was relatively short, and in Ruskinski’s case it was while Mr Nightingale was away at the trial. If, as Mr Evans told us, a significant number of Polish nationals pass through the prison, specific names would not necessarily stick in the memory of a prison officer. There is nothing to show that any of the men behaved in a way to attract attention to themselves while they were there. There is no reason for declining to accept or to act upon the information provided by Mr Nightingale.

Further, there is no reason to believe that Mr Nightingale, through his work as a prison officer, might have received prejudicial information about either appellant. His evidence was that he had not accessed the records of the appellants or of the witnesses, save that after the trial he checked on the computer that Zejmowicz was present at the prison. Even if he had accessed the records, they did not contain details of previous convictions. In any event Zejmowicz’s previous convictions for robbery and assault were put before the jury in the form of admissions, whilst it was accepted that Ruskinski had no previous convictions for violence or the threat of violence. Nor is either appellant said to have had an adverse disciplinary record or to have given rise to any security concerns while in prison.

That leaves the point raised by Mr Evans about the circulation of gossip about the case. The point was not explored in terms in the questions that the Commission put to Mr Nightingale, but it is covered by the generality of his answers that he had no dealings with or knowledge of any of the men. The suggestion that prejudicial talk about the case among Polish inmates may have reached the ears of Mr Nightingale (and, although probably in Polish, may have been understood and subsequently recalled by him) is met by those answers and is, moreover, highly speculative. It provides, in our view, a wholly inadequate basis for a finding of an appearance of bias.

For those reasons we reject this ground of appeal. In the case of Zejmowicz it is the only ground for which leave to appeal has been granted, and it follows that his appeal must be dismissed. In the case of Ruskinski it is necessary for us to go on to consider the two further grounds relied upon.

At the close of the prosecution case the judge ruled that there was no case to answer against the co-defendant Karbowski (Little Tom). The application was in fact made, by agreement, before Little Tom’s police interviews were read to the jury but on the basis that the judge should take those interviews into account. That procedure was adopted because the interviews were not admissible against the remaining defendants but contained material prejudicial to them, and it was better for the interviews not to be read to the jury unless it had first been determined that Little Tom had a case to answer.

Following the judge’s ruling in relation to Little Tom, there were applications on behalf of Zejmowicz and Ruskinski that the jury should be discharged and the trial should be re-started in front of a new jury. The applications were made on the basis that it had been foreseeable from the outset that a submission of no case to answer would be made in relation to Little Tom and would have a realistic prospect of success, yet the prosecution’s opening and the evidence adduced by the prosecution included material which would not have been put before the jury but for the continuation of the case against Little Tom and which was prejudicial to Zejmowicz or Ruskinski.

As to the prosecution opening, there was particular concern about points drawn from Little Tom’s interviews (that is to say, material that in the event the jury did not have read to them as part of the evidence), notably a suggestion that Ruskinski had been involved in urinating over the deceased while he was still alive and in spitting at or on him. On the other hand, in submissions on behalf of the Crown opposing the application to discharge, Mr Spencer QC pointed to the lapse of time (already almost 2 weeks) since his opening and to the fact that he had been very careful to underline to the jury in his opening that what one defendant said about another defendant in that defendant’s absence was not evidence against that other defendant.

As to the evidence, the main concern related to repeated hearsay given in the course of the evidence of the witnesses Roman Ksiazek and Pawel Zygaj. There was an issue before us as to the purpose for which those two men were called as witnesses. We are satisfied that the prosecution had proper reason for calling them, both in support of the case against Little Tom and because it appeared that they could give direct evidence of what Zejmowicz and Ruskinski themselves had said which was relevant to those defendants’ general attitude to the deceased and to whether they had abused him sexually and had used violence on him. There was no defence objection to the evidence of Roman or Pawel at the time. They were, however, very difficult and poor witnesses (Mr Evans described the evidence of Roman as bizarre, and the judge noted in his summing-up that Mr Evans was not able properly to complete his cross-examination).

More importantly, their evidence also included extensive passages in which they recounted what they had been told by Little Tom about the behaviour of the appellants towards the deceased. For example, Roman gave evidence that he had been told by Little Tom of an occasion, apparently in the week before Mr Milon’s death, when the deceased was lying on the floor and the appellants were kicking him on the head as if they were playing football, standing one on each side of him; they were both laughing and kicking him. Similarly, Pawel gave evidence that he had been told by Little Tom that the appellants were beating Mr Milon. The witnesses also gave evidence of what Little Tom had said about the deceased being forced by the appellants to engage in sexual acts. This hearsay evidence was admissible against Little Tom but not against either of the appellants and was submitted to be highly prejudicial to them.

In ruling against the application to discharge, the judge said that he had concluded that it was perfectly safe and proper for the trial to continue against the remaining defendants. His reasons, in summary, were these. First, the evidence about which complaint was made was never admissible against either Zejmowicz or Ruskinski and the jury would have received, and would receive, a direction to that effect, which the jury could be expected to follow. Secondly, the jury would have to grapple with directions of the same kind in any event, since it was evident from Ruskinski’s interview that it was his case that it was his co-accused, not he, who carried out the attack on Mr Milon. The judge finished by saying that he would give appropriate directions to the jury when they were directed to acquit Little Tom and would remind them at that stage that any evidence of what Little Tom may have said was not admissible against either remaining defendant, and the jury would also receive appropriate directions in the summing-up.

We do not have a transcript of what the judge said to the jury at the time when he directed them to acquit Little Tom, but there is no suggestion that he failed to give them directions of the kind he had indicated in his ruling.

In the course of his summing-up, about which no complaint is made, the judge gave the jury strong directions along the lines he had foreshadowed in his ruling on the application to discharge. He gave a repeated warning that they must put out of their minds any evidence as to things said by Little Tom about the appellants. He also went further, stressing the risk that the evidence of Roman Ksiazek and Pawel Zygaj about things that the appellants had said directly to them may have been influenced by what Little Tom had told them. Thus, having referred to Pastor McKenzie’s evidence of what he had seen or heard on the Wednesday or Thursday before Milon’s death, including remarks attributed to Ruskinski, the judge continued:

“But Roman says the remarks, whichever day it was, went further than that: there was a remark about Leszek [Milon] being unable to peel the potatoes because he could not see from his eyes. There were remarks, he says coming from both defendants, that Leszek had been ‘kicked round like a football, bounced like a ball’. …

When he was cross-examined, Roman was unable to be precise or anything like precise about the words a particular defendant used. Do you remember? He kept saying ‘they’. Although when he was re-examined to a degree and in his evidence generally, he was saying that both of them were saying these things.

Well, you will have to proceed with caution about both Roman and Pawel, because Pawel said similar things were said. You must satisfy yourselves, before you act on what they say, that they have not shifted their accounts in order to achieve consistency with each other. You remember that Pawel gave his evidence some time after Roman. …

You must also carefully consider whether they have been influenced in their recollection of events or their evidence about what was said by what Little Tom had told one or other of them. You will remember, Roman said that Little Tom had told them things of what had been happening quietly, presumably so that the defendants would not hear what he was saying and you know perfectly well from your own experience of life, if somebody tells you about an event and you have to decide something, you can be influenced, not only by way you learn directly from what is then said to you by the participants in the event, but you might be influenced in some way by what someone else had told you in advance. So Mr Evans invites you to, and Mr Wood, not to accept what Roman and Pawel say about these matters, particularly when we come to the sexual content of any comments made. So if the foundation for what their evidence is has come from Little Tom, then you would have to approach it with tremendous caution and you would have to be sure, before you acted on what they say either defendant said, that they are absolutely right when they said ‘This is what I heard directly from the defendant’ and not something which they have picked up from elsewhere.”

Before us, Mr Evans repeated the substance of the submissions he made to the trial judge in support of his application for the jury to be discharged following Little Tom’s dismissal from the case. He pointed to the background circumstances: most of the witnesses had been comprehensively drunk during the relevant period, nobody had a clear recollection of what happened on particular days and nobody could say how the injuries that led to the death of Mr Milon occurred. The main evidence against Ruskinski came from Roman and Pawel, together with the admissions allegedly made by Ruskinski to the shopkeepers (see below), but the evidence of Roman and Pawel was hopelessly unreliable and included a large amount of inadmissible and gravely prejudicial hearsay. This was not realistically curable by directions in the summing-up. In such unusual circumstances the judge should have discharged the jury.

We are not persuaded by those submissions. In our judgment, the judge’s decision not to discharge the jury following Little Tom’s dismissal from the case cannot be faulted. He was right to consider that Little Tom’s presence as a defendant in the case had not given rise to incurable unfairness and, in particular, that the prejudice it had caused to Zejmowicz and Ruskinski was capable of being cured by appropriate directions at the time of the directed verdict in respect of Little Tom himself and in the summing-up at the conclusion of the trial.

As to the extent of the prejudice to Zejmowicz and Ruskinski, we think that little weight is to be placed on what had been said in the course of the prosecution opening, both because of the lapse of time and because an appropriate warning had been given in the course of the opening that what Little Tom had said in interview was not admissible against the other defendants. The procedure subsequently adopted at trial, of hearing the submission of no case in relation to Little Tom before his interviews were read to the jury, avoided any repetition of the content of the interviews.

The evidence of the witnesses Roman Ksiazek and Pawel Zygaj was plainly of much greater concern, since it included highly prejudicial statements of what Little Tom had said to the witnesses about the conduct of the appellants. But a problem of the same kind, albeit not of the same degree, would have existed even if Little Tom had not been a defendant in the trial in the first place or if the trial had been started afresh without him. It is likely that the prosecution would still have called both witnesses, since they appeared to have relevant evidence to give in relation to Zejmowicz and Ruskinski. Given the problems encountered when the witnesses actually gave evidence, we doubt very much whether it would have been possible to cut out altogether what they had been told by Little Tom or to eliminate the risk that the evidence they were giving was influenced by what they had been told by Little Tom. So there would still have been a need for the jury, with the aid of appropriate directions, to distinguish between admissible and inadmissible evidence from these witnesses and to apply appropriate caution to the evaluation of the evidence of both witnesses.

In any event, the directions actually given by the judge in his summing-up were not only full and correct but were positively favourable to the defendants. The judge was correct to proceed, in ruling against the discharge of the jury, that directions along those lines were capable of curing the prejudice caused to Zejmowicz and Ruskinski by the presence of Little Tom as a defendant in the case. As he observed in his ruling, the jury had to engage in a similar exercise in relation to the contents of Ruskinski’s interview, which was admissible against Ruskinski but not against Zejmowicz (a point on which appropriate directions were also given in the summing-up). The jury could be relied upon to understand and act on the directions given to them.

We therefore reject the contention that the judge exercised his discretion wrongly or unreasonably in declining to discharge the jury.

On the Monday after Mr Milon’s death, Ruskinski went into a local shop, Solens Off-Licence, just after 9 p.m. There were two shopkeepers present: Ali Zmnako, who owned the shop, and Mr Zmnako’s cousin, Shamal Mohammed, who assisted him. They were both from Kurdish Iraq. Coincidentally, the police had visited the shop only a few minutes beforehand as part of their investigation into the death.

The exchanges that took place between Ruskinski and the shopkeepers were recorded on the shop’s CCTV and the recording was in evidence at the trial. The recording shows Ruskinski making various gestures to the shopkeepers, apparently demonstrating punches and kicking and an act of oral sex.

Mr Zmnako was called as a witness at the trial. The gist of his evidence in chief was that Ruskinski came into the shop with some cheese which he wanted to swap for cider, and that in the course of his exchanges with the shopkeepers Ruskinski made admissions of participation in the killing of Mr Milon: he suggested that he was going to prison for 25 years, and when asked why, he said it was because he and two friends had killed a man, by punching and kicking, as the man had been seen doing sex with someone else.

In cross-examination, however, Mr Evans made considerable progress in eliciting Mr Zmnako’s agreement that he was relying heavily on his interpretation of Ruskinski’s gestures rather than on anything that Ruskinski actually said. For example, early in the cross-examination the following exchange took place:

“Q. … As far as the words that he used, there were very, very few, if any, words that were comprehensible to you. Do you understand what I mean?

A. Not actually.

Q. He did not speak English?

A. Yes.

Q. Very, very few English words, if any?

A. Yeah.

…

Q. … So what you have to do is to try to understand what he is trying to say with his hands, yes?

A. Yes.

Q. Because what he says with his mouth you cannot understand?

A. No.

Q. No. So what you are doing is interpreting his sign language. Do you understand what I mean?

A. Yes, yes.”

Mr Evans then took Mr Zmnako through the detail of the CCTV recording, seeking to bring out the point that the witness was basing himself on an interpretation of the gestures, and in some cases putting an alternative interpretation to the witness. For example, in relation to Ruskinski’s demonstration of kicking, Mr Evans secured Mr Zmnako’s agreement that Ruskinski did not actually say in words that he had done the kicking. Thus, the following exchange took place towards the close of the cross-examination:

“Q. He didn’t say he did it. He did not actually say with words that he did it?

A. No, saying by show.

Q. By show?

A. Yes.

Q. And you have interpreted –

A. Yes.

Q. – what his actions are to say ‘I did it’?

A. When it’s by show you can see how he’s touching his self and he do that and two friends and everything. You can see.

Q. Well, he points to himself, but you don’t know actually what he is trying to convey when he is pointing to himself?

A. Well, I mean –

Q. You are guessing?

A. Just, yeah. Well, I mean you can see, when he’s saying kicking and he did it.

Q. Well, we have just been through it, Mr Ali. When we went though it there, at no stage did you say there ‘There he’s saying ‘I did it’.’ It is interpretation, is it not?

A.

Yes.”

The prosecution had intended in addition to call Mr Mohammed as a witness. Relatively shortly before the trial they were informed that Mr Mohammed was going to travel to Iraq and could not guarantee when he would return. Although a witness summons was obtained, it was not possible to stop him leaving the country; nor was it known when he would return. Understandably, there was no application by prosecution or defence for the trial to be adjourned pending his return. In the course of the trial, however, the prosecution sought to have hearsay evidence of Mr Mohammed admitted pursuant to s.116 of the Criminal Justice Act 2003. The proposal was not to read his statement but to play relevant parts of the significant witness interview which had been video recorded: this would enable the jury to assess not just his evidence but also his demeanour and to judge for themselves his command of the English language.

The account given by Mr Mohammed in that interview was similar but not identical to that given by Mr Zmnako in his evidence in chief. Like the trial judge, we have seen the video of the interview as well as reading the transcript, which is not a very good transcription and does not do full justice to Mr Mohammed’s command of English as it appears from the video. The flavour of Mr Mohammed’s evidence is given by this passage from the transcript, which follows his account of Ruskinski’s entry into the shop and Ruskinski’s request to swap some cheese for cider:

“… I said no, and then my cousin gave him telled me, go away. And then he said okay. No see you 25 years, like that. It means jail, something like that …

… I don’t know what that means. And then my cousin ask him why. He said because me and my two friends they’re (inaud) kill. My cousin say, aw, killed him. He said: yeah, I kill him

…

The guy said that. And I said, we were asking him: how did you kill him by knife or punch him, kick him? He said yeah, punch him on the floor, kick him, everything.”

Later in the interview Mr Mohammed said that Ruskinski had asked Mr Zmnako for cigarettes. Then:

“He say okay, go away. Why did you kill your friend? Why did you do that? He said because I actually he did that. He’s seen them, they are gay, sucking or something like that. You know and then he get mad and he say that.”

The application to have Mr Mohammed’s interview admitted into evidence was opposed on behalf of Ruskinski. Mr Evans accepted that the conditions in s.116 for the admissibility of the interview were met, in particular that “the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance” (s.116(2)(c)). He contended, however, that the evidence should be excluded on grounds of fairness. Mr Zmnako had made it clear in cross-examination that nothing of the sort stated in his evidence in chief (or, therefore, in Mr Mohammed’s interview) had actually been said by Ruskinski, and the potential for misunderstanding the true meaning of his gestures had been demonstrated by the cross-examination; and that to put in Mr Mohammed’s interview as hearsay evidence in those circumstances can have had only one purpose, namely to undermine and contradict Mr Zmnako’s evidence.

In his ruling, the judge acknowledged that Mr Evans had made progress in cross-examining Mr Zmnako, but said that “it is equally the case that he still maintained that certain words had been used and it is a matter for the jury, it seems to me, what they make of Mr Zmnako’s evidence”. Although it was not strictly necessary for him to do so, he considered the factors set out in s.114(2) of the 2003 Act. He concluded that it was in the interests of justice for the jury to receive the material in question, stating:

“They are constitutionally the tribunal who should be deciding what the appropriate inferences are to be drawn from this particular incident and it seems to me that in order to permit them and to allow them to proceed with that exercise, they ought to have before them probative, or potentially probative, material, including the evidence of Mr Shamal Mohammed.”

He observed that, having watched the whole of the video of the interview and having watched the relevant parts more than once, he was satisfied that the material was potentially probative and that Mr Mohammed’s knowledge of English was better than that demonstrated by Mr Zmnako. It was important material. The jury would be directed about the need to approach it with caution. In particular, the judge referred to the fact that the absence of Mr Mohammed meant that he could not be cross-examined, but said that the jury would be directed to give very close scrutiny to the evidence for that reason and, in so far as relevant progress had been made by the defence in the cross-examination of Mr Zmnako, to bear in mind the possibility that similar progress might have been made in cross-examination of Mr Mohammed.

Before we consider how the judge actually dealt with it in his summing up, we should refer to Ruskinski’s own account of his visit to the shop. By way of background, it should be recalled that Ruskinski left the scene of Mr Milon’s death around the time that the ambulance arrived on the Saturday evening. He was arrested some days afterwards, in the early afternoon of Wednesday 23 January. He was carefully questioned by the police as to his movements from leaving the scene until his arrest: this is important for one of the explanations he subsequently gave of what happened in the shop.

In his interviews he at first denied ever discussing Mr Milon’s death with the people in the shop. Later in the interviews he was shown the CCTV recording from the shop and gave, as the judge put it in summing-up, “what are now conceded, I think, to be rather stupid explanations for his actions; the sexual movement was apparently him asking for a cigarette”. He did not suggest in interview that what he was doing in the shop was merely to relate what he had heard from another person about the events surrounding Mr Milon’s death. That, however, was the explanation he gave in his evidence at the trial. He referred to a conversation he had had with Roman Ksiazek, and he told the jury that what he was doing in the shop was demonstrating what he understood the police were saying had happened. That evidence faced the formidable difficulty that in his interviews he had told the police that his conversation with Roman took place outside Asda on the Tuesday evening (whereas the visit to the shop was on the Monday evening); and, moreover, he had said that the conversation was mainly about changing his jacket and that Roman did not tell him about what the police had said to him.

Some of this evidence, of course, post-dated the ruling that Mr Mohammed’s video interview could be put before the jury, but it is interwoven into one of the passages in the judge’s summing-up where he gave directions to the jury on how they should approach Mr Mohammed’s evidence. It is also relevant to a wider submission by Mr Spencer as to the strength of the case against Ruskinski and as to the safety of his conviction.

In the first part of his summing-up the judge said this about Mr Mohammed’s video interview:

“The fourth category of witness in this case is Mr Shamal Mohammed. He is the witness who could not be here for reasons that need not concern you and I decided, as a matter of law, that you should be able to receive his evidence, particularly as it was not simply a question of reading a statement out to you, but because he had been video-interviewed, you could see the relevant parts of that interview so at least you saw what he looked like, you had a good impression of his use and knowledge of English and you heard the questions that he was asked and the way that he answered them. But what you did not hear, unlike in the case of his fellow Kurdish shopkeeper cousin, was Mr Evans or anyone else cross-examine him and that is something you must bear in mind when you assess Mr Mohammed’s evidence. I will, when we look at his evidence tomorrow, have one or two other comments to make about how you should approach that video evidence. Mr Evans, you may think, made some progress in cross-examining Mr Zmnako, his cousin, and what may have looked clearer when he was examined by Mr Spencer, may have looked less clear by the time Mr Evans had cross-examined him and it may well be, had Mr Evans had the opportunity of cross-examining Mr Mohammed, similar progress may have been made, it may not have been quite so clear-cut, insofar as it is clear-cut anyway, after Mr Evans had finished with him. So these are matters you must bear in mind when you consider the evidence which you saw over the video of Mr Mohammed.”

The judge later came back, as indicated in that passage, to how the jury should approach the evidence of what happened in the shop:

“The two gentlemen in the shop, the two Kurdish cousins, one of whom, Mr Zmnako, has given evidence before you and Mr Mohammed, you saw part of his videoed interview because he is not able to give evidence. I am going to say to you, members of the jury, that you should approach this video with considerable caution. Let us look at the surrounding circumstances first of all ….”

He then referred to Ruskinski’s explanation for leaving the flat, his account that he was communicating in the shop what he had learned from his meeting with Roman Ksiazek, and the problems in relation to that account. He continued:

“… but that is not the end of it, members of the jury. Look at the circumstances. This was a shop which Tomasz Ruskinski had visited on, I think he even said, ‘hundreds of occasions’ to buy cider or beer. He was well-known in the shop. He knew perfectly well that there was a video camera in that shop. Is it likely that he would have gone in there, as it were, and made a full confession by demonstration [and] broken English? Or is what he was about susceptible of another interpretation? Unfortunately there is no sound on the video. What you must not do is try and lip-read anything he was saying …. [B]ut certain things he admits. He admits that he did the demonstration with his fingers about prison, he admits he said ‘25 years’ in English as well as indicating it, he now admits that his demonstrations, in relation to punches and kicking and the sexual movement, related to events which you are particularly concerned with and his explanation to you, remember, is that is what Roman had told him. Not only was there no sound, but Mr Zmnako and Mr Mohammed are themselves not Polish speakers, understandably as they are Kurdish and their English is not very good either and although they both got the impression that Tomasz Ruskinski was admitting that he was involved in the events he was seeking to demonstrate, you will have to be very careful, very careful indeed, will you not, before you accept that what occurs on that video amounts to an admission of the serious crime of murder, or, alternatively, manslaughter.

When Mr Zmnako was cross-examined, he made it perfectly plain that he was not saying that Tomasz Ruskinski was saying ‘I did it’ and even though he had been drinking, it would be very odd, would it not, for someone like Ruskinski to go into a shop, yards away from where the events in question occurred, and start making a confession to two shopkeepers who knew him very well indeed by sight and where he knew there was a video camera?”

The judge then made further reference to the rival submissions concerning the evidence of what happened in the shop, concluding that passage by again emphasising the need to look at the matter with care.

In his submissions to us, Mr Evans suggested that the shopkeepers’ conclusions about what Ruskinski was demonstrating to them would have been informed by preconceptions based on what they had been told by the police only minutes beforehand. In any event, Mr Zmnako’s evidence was that there was no real conversation with Ruskinski but simply a series of gestures; and if that was correct and it was necessary for the prosecution to rely on the interpretation of Ruskinski’s gestures, which can be seen on the CCTV recording, that evidence was at best ambiguous and could not sustain a conviction. Mr Mohammed referred in his interview to a conversation in English between Mr Zmnako and Ruskinski, which was entirely inconsistent with what Mr Zmnako himself said about it. Mr Mohammed’s evidence on that could not in any way be regarded as reliable. The prosecution were seeking to introduce it so as to undermine and contradict the evidence given by Mr Zmnako. The judge was wrong to allow it in.

In his reply, Mr Evans made the further point that, given that there was evidence that Mr Milon had been subject to violence and sexual acts over a period of time before the day of his death, it could not be assumed that what Ruskinski was describing to the shopkeepers was the fatal assault. The problem about that submission, however, is that Ruskinski said in evidence at the trial that he was describing to the shopkeepers what the police said had happened on the day of the death.

For the prosecution, Mr Spencer supported the judge’s ruling, pointing out that the judge had viewed the recording of Mr Mohammed’s interview with care before reaching his decision. It was for the jury to decide what they made of the evidence of Mr Zmnako. It is not the law that, because the defence has made progress with one witness, the evidence of another witness about the same event is inadmissible or cannot fairly be admitted. It must always be for the jury to assess the effect of relevant and important evidence. It is commonplace for evidence of an absent witness to be read. In this case the jury had the additional advantage of being able to see the witness on the video and to assess his demeanour and command of English. It was open to the jury to decide that Mr Mohammed and Ruskinski were saying things in English beyond those understood and attested to by Mr Zmnako. And whatever the arguments about language difficulties, Ruskinski said he was conveying details about events which led to Mr Milon’s death; and if one discounts, as one can, that he was relaying what someone else had told him, the jury were entitled to conclude that he was recounting events at which he himself was present and that Mr Mohammed was likely to be right when he said that Ruskinski was recounting his own participation in those events.

Mr Spencer also advanced arguments to the effect that the case against Ruskinski was very strong and that the conviction was safe in any event. There was a core of admissible evidence from Roman and Pawel, and to some extent from Pastor McKenzie, that Ruskinski had demonstrated hostility towards Mr Milon prior to Mr Milon’s death. Ruskinski was in Mr Milon’s flat at the time of the death and then fled the scene: it was open to the jury to infer that this was out of a sense of guilt. Ruskinski adopted the initial and absurd position in interview that Mr Milon was not hit by anybody, and here too the jury could infer that he was lying out of a sense of guilt. There was then a change of position in interview, including the absurd answers he gave about what he was saying to the shopkeepers. Further, Mr Milon’s blood was found on his shoes.

We are satisfied that the judge’s decision to allow Mr Mohammed’s video interview to be admitted into evidence was a proper exercise of discretion on his part. We stress that it was a matter of discretion. The statutory conditions as to admissibility were satisfied. The judge had to form a view on whether the evidence should nonetheless be excluded on grounds of fairness. For that purpose he gave careful consideration to the factors set out in s.114(2) of the Criminal Justice Act 2003 and concluded, for the reasons he gave, that it was in the interests of justice for the jury to receive the material in question. That was a reasonable conclusion for him to reach. He displayed meticulous care in reaching it.

The account given by Mr Mohammed was not identical to that given by Mr Zmnako in his evidence in chief, and Mr Mohammed’s own account of the conversation that took place between Ruskinski and the shopkeepers was potentially important, especially as the judge was satisfied from viewing the video that Mr Mohammed’s knowledge of English was better than that of Mr Zmnako (whom the judge had heard give evidence). It was right in principle that both accounts should be before the jury. The lack of an opportunity to cross-examine Mr Mohammed was of course a very serious drawback, but the judge was correct in his view that this could be dealt with by appropriate directions to the jury. Indeed, the point could be brought home to the jury particularly forcefully in this case by reference to the progress that had been made by the defence in cross-examination of Mr Zmnako. In the circumstances we do not accept that the admission of Mr Mohammed’s evidence had no proper purpose or that it gave rise to fundamental unfairness as submitted by Mr Evans.

In the event, the directions given by the judge went considerably further than to remind the jury that the defence had not had the opportunity to cross-examine Mr Mohammed and to draw their attention to the progress that might have been made if there had been cross-examination. The judge emphasised the implausibility of Ruskinski making admissions to the shopkeepers of involvement in murder or manslaughter; and, whilst pointing out that both shopkeepers had got the impression that Ruskinski was admitting involvement in the events he was seeking to demonstrate, he pointed out that neither of them spoke Polish or had very good English and that the jury needed to be very careful indeed before accepting that what occurred on the video amounted to an admission of involvement. Those directions serve to underline the correctness of the judge’s view, at the time of the ruling under challenge, that if appropriate directions were given to the jury the evidence of Mr Mohammed could be admitted without unfairness to the defence.

Our conclusion that Mr Mohammed’s video interview was properly admitted into evidence makes it unnecessary for us to give further consideration to the prosecution submissions as to the strength of the other evidence against Ruskinski.

We have already indicated our rejection of the ground of appeal common to the two appellants, relating to the presence of a serving prison officer on the jury. For the reasons given above, we also reject the two further grounds advanced on behalf of Ruskinski alone. None of the matters advanced on behalf of either appellant provides any reason for doubting the safety of the convictions. Accordingly, both appeals are dismissed.