Gjikokaj, R v

Between 11.10 a.m. and 11.15 a.m. on the morning of Monday, 6 October 2008, Mr Cima Sogojeva (the deceased), an Albanian national from Kosovo living in a flat at Caroline Court, Golders Green, North London was fatally shot. He sustained six gunshot wounds to the head and torso as well as four stab wounds to the back of his neck. Some three years later the appellant was charged with his murder. On 25 October 2012 the appellant was convicted of that murder at the Central Criminal Court before HH Judge Nicholas Browne QC and a jury. He was sentenced to life imprisonment with a minimum term of 28 years less time on remand.

He appeals by leave of the Single Judge on a number of issues, including whether evidence of gunshot residue should have been admitted, whether the judge had given correct directions in respect of the appellant’s account as given in police interviews and whether a direction on alibi should have been given.

It is easiest first to set out the respective cases of the Crown and the appellant.

The Crown’s case was built entirely on circumstantial evidence.

The scene of the crime

There were no signs of forced entry to the flat. Large amounts of cash were left untouched in the flat - £18,600 in a box and £10,000 in a drawer. Two wallets were left untouched. Two bloodstained knives were found in the kitchen sink, one with the blade bent to almost 90 degrees. The deceased had been dressed in pyjamas. Hot drinks had been prepared for two, as if he was waiting for someone.

The deceased’s financial affairs

Although the deceased gave window cleaning as his occupation, he was in reality a professional criminal. He was actively engaged in large scale theft of cash from parking meters and was wanted by the authorities in Kosovo. In June 2008, a few months before he was murdered, the police had raided a safe deposit box which he had owned and £177,000 had been seized. In proceedings in respect of the proceeds of crime the deceased’s brother, Hashim Sogojeva, and the appellant, who was also an Albanian from Kosovo, had dishonestly attempted to assist the deceased in recovering this money.

The appellant’s motive

The appellant had borrowed money from the deceased. It was the Crown’s case that he had borrowed a total of £250,000; £110,000 of that had been lent in June 2008. The Crown’s case was that in the weeks before the murder the deceased was frustrated at the appellant’s failure to repay the money. The Crown relied on evidence from text messages, face to face confrontation and the evidence of the deceased’s girlfriend, Sarah O’Connor, as showing the deceased’s demands. It was the Crown’s case that the appellant murdered the deceased to avoid having to satisfy that debt.

The financial position of the appellant

The Crown relied on the fact that the appellant had substantial personal business debts; he had also sustained substantial gaming losses.

Evidence of opportunity

In the course of his interview the appellant accepted that he had driven to the deceased’s flat with his girlfriend, Barbora Andrejkonicova, in a hired black Chevrolet Captiva. He had parked the car near a drain at the junction of Highfield Road (the road in which the deceased’s flat at Caroline Court was) and Brookside Road. He had admitted visiting the deceased’s flat at about 11 a.m. on the morning of 6 October 2008 - the deceased being murdered shortly after that admitted time. The Crown relied on the fact that the appellant had with him Milk Tray chocolate boxes, double wrapped in two plastic bags. It was the Crown’s case that this was designed to look like a quantity of cash which the appellant had told the deceased he was repaying in a text message sent the day prior to the murder.

The finding of bullet shell casings

Some bullet shell casings matching the bullets that killed the deceased were left in the flat; some were found in the drain near where the appellant had parked his car.

Gunshot residue

Two gunshot residue particles were found in the hired Chevrolet Captiva which the appellant had rented and admitted driving that day. There was expert evidence from Dr Moynehan of LGC Forensics in relation to those particles. We refer to that in more detail at paragraph 26 and following as the admissibility of that evidence was challenged and the judge’s direction on the use the jury might make of the gunshot residue evidence was a main ground of the appeal.

Evidence of the appellant’s lies and bad character

It was the Crown’s case that the appellant had lied to the police when he said he only knew about the deceased’s death on the day following the murder. The Crown called the appellant’s ex-wife who said the appellant was aware of the death and had told her about it on the day of the murder.

The Crown also relied upon the failure of the appellant to give evidence, his lies in interview and his bad character as evidenced by his money laundering and assistance to the deceased in relation to the safe deposit box.

The appellant did not give evidence and did not call any evidence. He relied upon the explanation given in 800 pages of police interviews which had taken place shortly after the murder.

His account in interview of his visit to the deceased

His account in the interviews was that he admitted driving in the black rented Chevrolet Captiva motor car with his girlfriend, from Reading and then along the North Circular Road in North London to Golders Green.

He had stopped at the Shell Service Station on the North Circular and bought the Milk Tray chocolates as a gift for the deceased’s child. That account was supported by CCTV footage showing him leaving the Shell petrol station on the North Circular at 10.51 a.m. That was 7-8 minutes from Caroline Court where the deceased had his flat.

His case was that he then went to the deceased’s flat. He gave the deceased £31,000 in cash which was the final instalment of the £110,000 that he admitted owing to the deceased. He also gave the chocolates to the deceased. His case was that he arrived at about 11 a.m. and left 5-10 minutes later.

The independent evidence of timing

His case was that the timing of his leaving the flat prior to the murder was supported by other evidence:

He also relied upon evidence from a witness called by the Crown that he had seen two unidentified men walking very quickly down the stairs from the deceased’s flat after 11.20 a.m.

In addition, although this does not appear to have played as significant a part at trial as it did on the appeal, there was cell site evidence which showed that the appellant’s mobile phone was used in Hayes at 11.38 a.m. The evidence of the police (which was agreed) was that it took 28 minutes driving time (exceeding the speed limit by as much as 20 m.p.h. at times) to get from Caroline Court to the appellant’s wife’s house in Hayes. His account was that he used the phone in the house which he had only got into after obtaining keys from the estate agent and charging the battery up.

There was evidence of two knives being used to stab the deceased which had been partially cleaned and evidence that the killers had taken time collecting the bullet cases and disposing of them in the drain where they were found. As it was accepted that the appellant was at Hayes at 11.38 a.m., he could not therefore have been the person who committed the murder at 11.15 a.m.; that must have been committed by the two persons seen walking down from the deceased’s flat after 11.20 a.m.

The defence case as to the killing

It was further contended that the probability was that the deceased was murdered as a result of his general criminal activity and a blood feud between two Albanian families in the course of which similar violent murders had occurred. The gun used to kill the deceased was not normally available in the UK; the deceased possessed a substantial number of weapons, fearing for his own safety.

The appellant also disputed the Crown’s case about his finances. He denied owing him £250,000 and the text referring to 250 was a mistake; it should have read as a much smaller figure. The fact that large sums of cash were left in the flat was inconsistent with the prosecution case that the crime was motivated by the appellant’s debts.

The appellant relied on the fact that throughout the proceedings he had answered his bail, consistently denied the offence and was of previous good character.

Against that background we turn to the issues in the appeal.

The primary evidence

The primary evidence given by Dr Moynehan, a forensic scientist employed by a private supplier of forensic services, LGC, in relation to gunshot residue was not in dispute.

The car which the appellant had admitted using on 6 October had been hired by him previously and continued to be used by him between 6 and 15 October. It was then kept at two police storage facilities until it was examined on 24 October. When examined two particles of gunshot residue were found. The one on the front nearside seat was type 1 and the particle on the front offside door handle was type 2. When the deceased’s body and clothing were sampled he had a very high level of gunshot residue type 2 and a small number of gunshot residue type 1 particles.

No gunshot residue particles were found on the appellant when he was examined on 17 October. Type 1 and Type 2 gunshot residue are very common types of gunshot residue.

There were three possibilities that might explain the presence of gunshot residue:

The evaluative opinion

Dr Moynehan would not give an evaluative opinion in relation to the three possibilities. Where only two particles were found, it was the policy of LGC Forensics that an evaluative opinion could not be given, as two particles were insufficient for that purpose. He was bound by that policy and he could therefore not give an opinion that evaluated the possibilities.

The furthest he would go was to say that he would not expect gunshot residue to remain on the appellant in the lapse of time between 6 and 15 October. As to the car, the more the car was used the more opportunity there was for gunshot residue to be lost.

The admissibility of the evidence

Objection was taken on the appellant’s behalf to the admissibility of that evidence on a number of different bases. It was said that it had no probative value and did not allow for a reliable conclusion. It was also evidence that should be excluded under s.78 of the Police and Criminal Evidence Act 1984. In a ruling given on 3 October 2012 the judge held that the evidence was admissible.

In considering the question of admissibility of the evidence of gunshot residue, it is important to bear in mind the distinct tasks that a forensic scientist can perform. In this case Dr Moynehan was able to give a primary scientific opinion based on a recognised and reliable scientific method that the gunshot residue found in the car was of the same two types of gunshot residue that had been found on the body and the clothing of the deceased; and that there were three possibilities for the presence of the gunshot residue.

Given the fact that gunshot residue disperses quite quickly and the risks of contamination, LGC Forensics had adopted the policy of declining to provide an evaluative opinion in the circumstances which we have set out. Thus when determining whether the expert evidence should be admitted, it was essential to draw a distinction between the primary scientific opinion and an evaluative scientific opinion.

It is clear, in our view, that the primary scientific opinion was admissible. It was admissible to show, in a case where the evidence was circumstantial, that it was not open to the appellant to say there was an absence of scientific evidence connecting him with the crime. The scientific evidence was consistent with the appellant being there and he could not therefore claim that the absence of forensic evidence showed he could not have been there and fired the shot. The primary scientific evidence was therefore plainly admissible for that purpose.

In fact the use of the evidence was similar to the use in the second case heard with R v Dlugosz [2013] 1 Cr App R 32, namely the case of Pickering: see paragraphs 77-80 and paragraph 85 of that judgment.

As the only evidence that Dr Moynehan was prepared to give was the primary evidence which was not in dispute and, as it was plainly relevant, it is difficult to see how there could be any basis for excluding it under s.78 of the Police and Criminal Act 1984.

The direction of the judge on use the jury might make of the primary scientific evidence

As emerged during the course of argument on the appeal, the real issue related to the direction to the jury on the use that they might make of the primary scientific evidence. Before turning to examine the directions given by the judge, it is important to amplify our brief description of the other evidence relating to the three possibilities we have set out.

The directions the judge gave to the jury as to the way in which they might use the evidence was as follows:

“In the opinion of his [Dr Moynehan’s] laboratory you cannot reliably interpret two particles. They may be there quite by chance. In giving that opinion he does not consider other evidence in the case. He considers the two particles in isolation and his opinion is … looking at his two particles in isolation, no reliable interpretation can be given to the finding of a low level of GSR [gunshot residue] on the samples from the Chevrolet.”

It is clear that in that passage the judge was simply explaining to the jury that Dr Moynehan was not giving an evaluative opinion.

It was submitted to us by Mr Mendelle QC that Dr Moynehan had in fact looked at the whole of the surrounding circumstances, including the finding of the bullet casings in the drain. It was therefore impermissible for the judge to have directed the jury in the terms in which he did. The judge had therefore been quite wrong when he had gone on to say:

“The central point is this, is it not: bear in mind that Dr Moynehan can only give his opinion from the evidence only at his disposal. He cannot go beyond the evidence relating to the two particles, and because that is a low amount of particles, he must necessarily be cautious. You can go further, as I have already observed. You can add one limb of evidence relating to firearms to another limb of evidence relating to firearms. That is your privilege and your right. You can aggregate evidence, Dr Moynehan cannot. ….”

The judge had then added:

“But let me add this: if you think that either the possibility of innocent contamination by reason of the incident in Reading on 2 October or by the sheer chance of there being two particles in the vehicle are possibilities which you, the jury, cannot rule out, then my direction to you is absolutely clear, please ignore this evidence. It has no value in the case at all.

If you, on the other hand, are driven by other firearms evidence in the case and are satisfied and sure that the first possibility, namely that the two particles are on and in that Chevrolet because the defendant was in close proximity to the firearm which murdered the deceased, can you use this evidence as being consistent with and confirmatory of that other firearms evidence?”

We cannot accept the submission advanced by Mr Mendelle QC. Dr Moynehan had given primary evidence in relation to the gunshot residue and set out the three possibilities to explain its presence. The judge had then told the jury that they could, if two conditions were satisfied, use that primary evidence as evidence consistent with the appellant being in close proximity when the gun was fired. The two conditions were: (1) they were sure that the other firearms evidence in the case, particularly the finding of the bullet casings in the drain near to which the appellant had parked the Chevrolet, enabled them to conclude that the appellant was in close proximity to the firearm which murdered the deceased; and (2) they could rule out the possibility of contamination through the incident in Reading or sheer chance.

The judge was not inviting them to reach an evaluative opinion where the forensic scientist could not, but inviting them to consider this piece of primary forensic evidence as part of the circumstantial case. In our judgment for the reasons we have set out, the jury were entitled to conclude, if the conditions the judge had set out were satisfied, that the evidence was consistent with the appellant being present when the gun was fired at the deceased.

The judge, however, added that the jury could treat the evidence as “confirmatory”. It is evident from the context in which he used this term, that he meant that they could aggregate the primary scientific evidence to the other evidence as part of the circumstantial evidence in the case. It would have been better if he had not used the term “confirmatory” and had continued to use the term “aggregate”. Nonetheless we consider that the jury must have understood the term in the context in which it had been used – namely it was another part of the circumstantial evidence in the case which could be aggregated in the sense he explained.

Thus although the direction could have been better crafted, we do not consider there was a misdirection, viewed in the context as a whole.

As we have set out at paragraphs 14-15, the appellant was extensively interviewed by the police. An edited version of those interviews was put before the jury.

The first direction given by the judge

In his direction to the jury when the judge turned to the defence case he gave them the usual direction in a case where the defendant has not given evidence. He then continued:

“However, the defendant’s silence in court is relevant to your consideration of the case in two ways. One, there is no evidence before you from him capable of contradicting, undermining or explaining the evidence for the prosecution. Although what the defendant said in his many interviews is evidence of his reaction at the time, particularly to past events, it is simply a series of assertions made by a defendant on an occasion when he was not giving evidence.”

The submission of the appellant on the first direction

It was submitted by Mr Mendelle QC that, when the judge told the jury that his account in interview was only evidence of his reaction at the time and was otherwise simply a series of assertions, that was a clear misdirection. As the interviews had been relied upon by the Crown, the interviews were partly exculpatory and partly inculpatory. They therefore constituted a mixed interview and in accordance with the decisions in Duncan (1981) 73 Cr. App. R. 359, Sharp (1988) 86 Cr. App. R. 274 and Aziz (1995) 2 Cr. App. R. 478, the judge should have directed the jury that the whole statement, both the inculpatory parts and the exculpatory parts, must be considered by them in determining where the truth lay.

This point had been expressly raised with the judge at the conclusion of the summing-up. It was clear that what had been said by the judge had been taken from page 287 of the 2010 Bench Book. The Crown accepts that that passage in the Bench Book deals with a case where the whole of the interview was self-serving, not where there was a mixed statement of the type in this case.

When Mr Mendelle QC pointed out that the judge had failed to take into account Sharp and Aziz, the judge said:

“It is clearly what the bench book is telling judges to say. I am reading out my note, which I am pretty sure comes from the bench book:

“It is simply a series of assertions made by D on an occasion when he was not giving evidence.”

If you want to complain you have to complain to the Court of Appeal Criminal Division. Because that is what I routinely do and I have not had any indication from the higher court that that is wrong. Yes.”

Unfortunately no-one pointed out to the judge that an illustration of the correct direction on which the judge should have crafted his direction could be found at page 288 of the Bench Book.

The whole of the judge’s direction

However, it is necessary to see what the judge said overall. After giving the direction in relation to a defendant not giving evidence as we have set out at paragraph 47, he turned to give the direction in relation to good character. He based his direction on a standard form of the direction saying:

“Good character … is relevant to your consideration of this case in two ways. Firstly the defendant answered all the questions put to him by the police. His good character is a positive feature about him which you should take into account when considering whether you accept what he said in his interviews …

I must make this qualification as to his good character which is relevant to the issue on whether or not you believe his account to the police. He has in his account to the police and in the documents which we have seen and looked at admitted a conspiracy to pervert the course of public justice in relation to the safety deposit box matter …”

It is clear from this second passage that the judge was plainly directing the jury that they could consider whether they accepted and believed what the appellant said in the interviews. The jury must have understood from that that they were to consider the interviews as part of the evidence in the case in deciding where the truth lay.

The judge then told the jury that it was his duty, as the appellant had not given evidence, to give them some assistance about what the appellant had told the police. He then went through the 200 page summary, highlighting the important parts of the appellant’s account of the events.

Looking therefore at the whole of the summing up, it is clear that the judge put the whole of the appellant’s account before the jury and that, save in the one passage to which Mr Mendelle QC referred, told them to consider whether they believed that account in deciding where the truth lay. Viewed as a whole, therefore, we have concluded that the obvious error made by the judge in the direction set out at paragraph 47 did not amount to a material misdirection, when the whole of the directions and the summing up is considered.

Ground 3: Should the judge have given an “alibi” direction

The appellant’s case was that he had left the deceased’s flat at Caroline Court between 11.05 a.m. and 11.07 a.m. and, as we have said, was driving back to Hayes at the time the deceased was murdered.

The appellant’s defence statement did not refer to this an “alibi”. No evidence was called in support of any alibi. The draft directions given to counsel for the Crown and the defence did not refer to alibi. No objection was taken. It was not pointed out that such a direction should have been given.

At the conclusion of the summing-up, Mr Mendelle QC submitted that an alibi direction should have been given on the basis that it was the appellant’s case that he was elsewhere at the time; that was an alibi and that the Crown had to disprove it.

It was accepted by Mr Mendelle QC that the judge had not understood that alibi formed the central feature of the defence case; and that there was no rule of law requiring a judge to give such a direction where a defendant relied on an alibi.

In our judgment there was plainly no need to give any alibi direction in this case. The defence case was that the appellant had left the deceased’s flat shortly before the murder was committed. This was not evidence in support of an alibi: see Johnson [1995] 2 Cr App R 1. This was not a case where the jury seemed in danger of supposing that, because an alibi had been put forward by the defence, the burden must be on the defence to prove it. It is plain that the jury understood that it was for the Crown to prove that the appellant was present at the time the deceased was murdered and had not left at the time he contended and before the murder occurred.

As we have set out at paragraph 22, it was the defence case that the deceased had various enemies due to his criminal activities. It was suggested that prime amongst the likely alternative persons who might have murdered the deceased were members of a rival criminal family – the Muqiqis, who were involved in a blood feud and turf war with the deceased.

Evidence was admitted of three incidents agreed to be related to the feud as evidence relating to the background motive under s.98 of the Criminal Justice Act 2003 and following the decision of this court in Sule [2012] EWCA Crim 1130.

The defence sought to refer to another incident said to have been linked to the feud which had occurred on 18 November 2002 in Kilburn, North London. It was said that two members of the Muqiqi family, including Xhevat Muqiqi, had shot and beaten a man known as Esat Haziri who was shown in police intelligence to be linked as a known associate of the deceased. The deceased’s brother, Hashim, had, when asked by the police about the deceased’s death, volunteered the information about the 2002 attack in Kilburn in the context of a blood feud existing between the two families. It was contended that this incident was part of the feud, that it showed the feud was of long standing and that it was not limited to the matters in 2005.

The Crown opposed any evidence being given in relation to the 2002 incident in Kilburn. In a ruling given on 4 October 2012 the judge, after considering the CHIS report, concluded that there was not a scintilla of evidence which lent support to the proposition there was any connection between the death of the deceased in 2008 and that incident. Everything pointed to the incidents being unconnected.

We see no reason to question the correctness of the ruling of the judge on this issue; there was ample material on which he could have formed the view that the incident was unconnected with the subsequent violence in 2005 or to the killing of the deceased in 2008.

We have referred at paragraphs 8 and 23 to the role of the appellant’s finances as part of the circumstantial evidence in the case. Evidence was given by the appellant’s ex-wife, a police financial investigator and Mr Nilesh Patel, the appellant’s ex business partner in a business venture in relation to the LV Lounge, part of the George Hotel in Reading. The evidence in relation to the LV Lounge was not as clear as it should have been, as the financial investigator looked at records which Mr Patel said were not the complete records.

The evidence given also included evidence of gambling by the appellant at casinos; he used his credit cards to finance these.

In his summing-up the judge reviewed the evidence in relation to financial matters. As he explained there were sub-headings: (i) the LV Lounge in Reading; (ii) the safe deposit box; (iii) the £100,000 gift or loan; (iv) the gambling habit; (v) credit card debt; (vi) money in the bank account; (vii) the evidence suggesting that the defendant owed the deceased a very significant sum of money. He then reviewed the evidence under each of those headings in turn.

Under the fourth heading, when looking at gambling, the judge set out the evidence of substantial betting. He then referred to the fifth heading, credit car debt, and set out the details of that. He summarised the credit card debt as £34-35,000 and then added:

“Add that to the gambling. This is now, on any view, members of the jury, a six-figure debt. It is £100,000 basically. Whichever, being charitable to the defendant, it is a significant sum. Those figures and you can see, they are taken at the time which we need to concentrate on, and put under the microscope. That is autumn 2008.”

The point raised by the appellant was that the judge had failed to appreciate that the sum the appellant lost gambling was not a debt, but expenditure that was accounted for in the money flows from his bank account and charged to his credit card. The judge was asked to clarify that matter and said to the jury:

“Do bear in mind the point about double counting for gambling. If it reduces the figure, so be it. You have heard the argument put to the witness by Mr Lyons on the defendant’s behalf. I do not resile from telling you yesterday that the debt is still substantial.”

It is said on behalf of the appellant that this did not sufficiently correct the error.

It is evident that the evidence in relation to the LV lounge was not clear; the judge summarised the conflicting evidence as to whether the venture was profitable or not. He told the jury that it was for them to decide, but they might regard it as the least important part of the evidence. On one reading of the summing up, the judge may not have dealt as clearly as he might have done with the relationship between the credit cards and the gambling debts, but what he said to the jury in the passage we have set out at paragraph 70 was sufficient to clarify the matter.

The course of this appeal demonstrates again the need in a complex and serious case of this kind for clear directions; the Bench Book is extraordinarily useful, but as it itself makes clear, directions have to be crafted to suit the circumstances of each case.

Although for the reasons set out, each of the specific grounds relied on fails, it is necessary for us in the circumstances, particularly because of our conclusions in respect of grounds 1 and 2, to consider the overall safety of the conviction.

In our judgment, the whole of the evidence, the case for the Crown and for the appellant was fairly put before the jury. There was strong evidence against the appellant, but there were issues on the timing of the events between 10.51 a.m. when the appellant was shown leaving the Shell service station on the North Circular and the use of the phone in the vicinity of Hayes at 11.38 a.m. that had to be carefully considered. We have very carefully ourselves considered that evidence and in particular the location of the cell site evidence that simply shows a call was made in Hayes at 11.38 a.m.; it does not show that he was at his wife’s home. We consider that the evidence of the timings is sufficiently consistent with the remainder of the evidence, that the evidence of the timings in the period between 10.51 a.m. and 11.38 a.m. as relied upon by the appellant cannot cast doubt on the safety of the conviction.

We therefore dismiss the appeal.