Masih v R

This is an appeal against conviction brought with the leave of the single judge. It follows the appellant’s conviction for murder on 23 June 2014 before His Honour Judge Griffith Jones at Warwick Crown Court, sitting at Leamington Spa. The appellant was sentenced to life imprisonment. The minimum term set under section 269(2) of the Criminal Justice Act 2003 was 15 years less 198 days spent on remand in custody before sentence.

There is a single ground of appeal, namely that the trial judge should have acceded at the close of the evidence for the prosecution to a submission of no case to answer.

The prosecution case was based upon circumstantial evidence. There is no dispute between the appellant and the respondent as to the correct approach in law to a submission of no case to answer when all the critical evidence is indirect and inferential. The ultimate question for the trial judge is:

The appellant lived at Flat 44 Paradise House, Eden Street in Coventry. The appellant and the deceased man, Edwin Mazorodze, were friends and drug users who frequently took drugs together. At 10.17 pm on 4 December 2013 they were captured by a CCTV camera installed in the gable end lift at Paradise House taking the lift to the eighth floor to gain access to the appellant’s flat. There they consumed an unknown quantity of drugs. At 11.12 pm the same camera captured the appellant attempting to drag Mr Mazorodze by his foot into the lift on the eighth floor. Mr Mazorodze was scrambling on the floor but he was able to resist and the appellant was unsuccessful. At 11.12.55 pm Mr Mazorodze is to be seen, naked from the waist up, in a sitting position immediately outside the lift and plainly conscious; there is a bloodstain on his upper torso in the shoulder area. The lift door then closes. At 11.18 pm, five to six minutes later, a passer-by, having found Mr Mazorodze’s unconscious body on the ground outside the flats, immediately underneath a balcony outside the front door of Flat 44, telephoned the emergency services. He had fallen a distance of some 75 feet. At 11.28 pm the lift CCTV camera recorded the appellant leaving Paradise House. At that time paramedics and the police were tending to Mr Mazorodze and the appellant must have passed within 25 feet of them. Mr Mazorodze died from his injuries under an hour later.

Having spent the night with his girlfriend, the appellant surrendered to the police at 10.30 am on the following day, 5 December. At 5.07 pm he gave an account in interview under caution: Having taken drugs at his flat Mr Mazorodze reacted badly and became aggressive. When the appellant emerged from the bathroom, where he too was attempting to inject, he found Mr Mazorodze had fallen and cut his head. There was a struggle as the appellant attempted to eject Mr Mazorodze from the flat. In the course of the struggle the appellant had struck Mr Mazorodze’s hands with a metal vase to remove his grip on the banister of the stairs which descended to his front door. Eventually he succeeded in removing Mr Mazorodze from the flat. At the lift the appellant left Mr Mazorodze, ran back to his flat and locked the door behind him. He went upstairs, heard banging and opened a window immediately above the walkway outside his front door. The appellant shouted saying he was going to call security. He told Mr Mazorodze that he would throw down his jacket. At this point Mr Mazorodze climbed onto the metal rail of the balcony. He used the pillar to his left to support himself. The appellant suggested that if the police checked they might find blood on the pillar because Mr Mazorodze had been bleeding. Mr Mazordoze was standing on the balcony rail, leaning out while holding on to the pillar and saying “I’m coming up”. He could not have climbed up because there was nothing to hold on to. (This is confirmed by a photograph that the court has seen.) The appellant closed the window and almost immediately heard a bang. Mr Mazorodze had slipped and fallen to the ground below. The appellant said that he panicked. He thought he was going to get the blame. He tried to clean up with a wet towel and threw Mr Mazorodze’s missing trainer over the balcony. His jacket was still in the flat. Before he left, the appellant changed his shoes and later discarded his bloodstained trainers in a bin en route to his girlfriend’s house. He told the police where they could be found and they were recovered. When he left Paradise House he saw that an ambulance and police car had arrived. In the early hours of 5 December the appellant heard from his brother that the police had visited their mother’s house and he agreed to go to the police station.

The principal witnesses called by the prosecution were Justin Simon Barrow and Demi Parnell who lived with their two children at Flat 43 Paradise House. The front door to their flat was alongside the front door to Flat 44. They were the appellant’s next door neighbours. The balcony and walkway were immediately outside both front doors. Next to the front door of Flat 43 was the kitchen window which also looked out onto the walkway. The rest of the living accommodation in Flat 43 was accessed via an internal stairway down to the seventh floor. The living accommodation for Flat 44 was reversed. It was also accessed by an internal staircase but upstairs to the ninth floor.

Mr Barrow said that he arrived home from work at about 10.50 pm. Demi was downstairs in bed with the boys but she was still awake. He was in the kitchen when he heard noises from next door. It sounded like banging on next door’s stairs. He heard a voice he believed was the appellant’s saying, “Get out of my house”. A struggle or a fight seemed to be taking place. He then looked out of the kitchen window and saw one man dragging another by the foot along the walkway in the direction of the lift, that is from Mr Barrow’s left to his right as he looked out of the window. Although Mr Barrow did not recognise either man it was common ground that Mr Mazorodze was being dragged by the appellant. One of Mr Mazorodze’s trainers was off and he was being dragged by the stockinged foot and ankle. Mr Barlow from the top of the stairs aroused Demi to tell her what had happened and then went back to the kitchen. The next thing he saw was a body lying on the walkway outside his kitchen window. It did not appear to be moving. There was no-one else present. Again he turned away to talk to Demi who was still downstairs. When he returned to the window this time he saw the same man walk past his window from his right. He saw blood on what appeared to be his neck. There was a magazine on the floor that was bloodstained. It was situated where he had seen the man lying on the ground. Then he saw the man standing up. He was wearing trousers but nothing on his top. It was common ground that the man Mr Barrow was describing, lying on the ground and standing at the balcony rail, was Mr Mazorodze. When Mr Barrow last saw him he was facing outwards from the balcony and appeared to be looking out. In other words he had his back to Mr Barrow. Mr Barrow turned away from the window to go downstairs to speak to Demi again. As he was doing so Demi shouted that a body had fallen past the window.

Mr Barrow gave evidence that when the first man was dragging the second he saw a third man looking on but he had not seen him do anything and he did not see him again. The prosecution suggested that in this he was mistaken. Later, at some time after Demi told him that a body had fallen, he went back to the kitchen and saw that someone had swilled water into the bloodstains on the walkway and the magazine had gone. At some stage he heard the next door shut and lock but he could not recall whether that was before or after he heard the sirens of the emergency vehicles. Mr Barrow was asked by Mr Atkins QC whether he heard any more noises after he saw the man standing on the walkway looking out over the balcony. He replied that he had not.

Demi Parnell said that she was downstairs in the bedroom when she heard a bang and shouting from upstairs. She turned the light off in the living room. Justin had told her to ring the police but she wanted to speak to her mother first. While she was making her call a body fell past the window. She too heard nothing from outside immediately before the body fell.

Dr Hunt, the pathologist, gave evidence that although Mr Mazorodze suffered three blows to the head and injuries to his hand, none of them was life threatening and none of the blows to the head was sufficient to cause unconsciousness. They had split the skin in his scalp and caused copious bleeding but no underlying injury. However, Mr Mazorodze had suffered fatal head and brain injuries when he fell to the ground. His body had collided with a substantial metal rail just before it hit the ground. Dr Hunt found no injuries on the body that might be consistent with gripping of the deceased while an attempt was made to force him over the balcony, but he could not exclude the possibility that gripping had taken place without leaving a mark on the deceased’s body.

Scenes of Crime officers and Mr Whittaker, a forensic scientist, gave evidence about the distribution of blood within the appellant’s flat. It was apparent that there had been an incident of violence that had caused Mr Mazorodze to bleed profusely in various parts of the flat before he was dragged to the lift. A half-hearted attempt had been made to clean up blood staining within the flat.

Robert Bone examined a pillar to the left of the balcony looking outwards. He found marks in Mazorodze’s blood on the side of the pillar. From the position in which Mr Barrow had described Mr Mazorodze standing at the balcony they would have been immediately to Mr Mazordodze’s left. Mr Mazorodze was 182 cms (5 feet 11½ inches) in height. Some of the marks in blood were at a low level (less than 65 cms). Others were at heights between 130 cms (4 feet 3 inches) and 170.5 cms (5 feet 7 inches) above the level of the walkway. He also found a mark in blood on the rail where Mr Mazarodze was seen by Mr Barlow to be standing. Mr Bone could not interpret the cause of the blood marks because they had been diluted by driving rain that had entered the balcony area after the discovery of Mr Mazorodze’s body.

Evidence from a toxicologist established that Mr Mazorodze had consumed alcohol in the proportion 174 milligrammes per 100 litres of blood and had recently consumed heroin, cocaine and cannabis. An analysis of the appellant’s urine from a sample taken following his arrest showed that he had consumed cocaine, heroin and methadone.

A loose end was left by Mr Mazordoze’s missing mobile telephone which was never recovered by the police. Someone had used the phone with different SIM cards in the days following Mr Mazordze’s death and while the appellant was in custody. The defence suggested that someone must have recovered the phone and that person could have been the third man Mr Barrow had seen on the walkway while Mr Mazorodze was being dragged to the lift.

The prosecution invited the inferences that the appellant had subjected Mr Mazorodze to a severe beating in the flat; that he tried to drag him into the lift; and that when Mr Mazordoze followed him back to his door, he propelled him over the balcony rail to the ground below. The prosecution accepted that only if the final inference could be drawn would the jury be able to convict of murder.

The defence argued that the final inference could not safely be drawn from the evidence the jury had heard. What was missing was any evidence that the appellant was outside his flat at or about the time the deceased fell to his death or any evidence that the deceased was pushed, manhandled or propelled. Mr Atkins QC made a submission of no case to answer.

The judge, in his ruling given on 19 June 2014, expressed his opinion that the jury could properly conclude from the evidence they had heard that the appellant:

The jury was entitled, the judge ruled, to consider whether these were the actions of a man who thought there had been a dreadful accident. He concluded:

“There are perfectly properly listed in Mr Atkins’ helpful skeleton argument, many points that the jury will want to consider. There are, for example, pictures which they will have in their minds, from the evidence of Mr Barrow, the only real eyewitness, as to events shortly before the fall, which are strong images and eloquent images, which they may say to themselves are consistent with the explanation which the defendant was later to give, but these are matters for the jury. This is a case where the jury are entitled to look at what happened before and afterwards and it is not guesswork. They could perfectly properly draw an inference that the defendant was responsible for causing the deceased to fall to his death...”

The appellant elected not to give evidence but to rely on the explanations he had given in interview with the police. No complaint is made about the summing up. HH Judge Griffith Jones reminded the jury of the points made by Mr Atkins QC to the effect that other evidence in the case appeared to be consistent with the account given by the appellant in interview. The judge summarised the prosecution case as follows:

“The prosecution say to you, so far as the phone is concerned, you be careful with that, its last usage of it is at a time when we do not even know whether it was brought to the scene by the deceased. You are entitled to consider the circumstantial evidence here. You look at what happened before, look at what happens afterwards. Why clear out? If this was just an accident which he wasn’t responsible for, why does he behave in the way he does afterwards in trying to clear out and get away from the scene and walk past someone who...he’s been associating with...walk past...assuming that he was going to be all right after a fall like that. The prosecution say all this is nonsense. If you look at what happened before, what happened afterwards, the clear inference is that that man went over the balcony by reason of what the defendant did.”

We do not underestimate the probable effect on the minds of the jury of the judge’s perfectly proper invitation to consider drawing adverse inferences from the appellant’s election not to give evidence.

Mr Grieves-Smith submits that the account given by the appellant in interview could properly have been rejected by the following line of reasoning: The appellant had, after attacking Mr Mazorodze, attempted to eject him not just from his flat but also from the building. Mr Barrow had heard nothing to suggest that Mr Mazorodze had attempted to regain entry to Flat 44. The design of the building, which the jury saw for themselves at a view, made it highly improbable that even a man affected by drink and drugs would attempt to scale it from the balcony. It was unlikely that the appellant knew of the fall only because he heard a bang through his closed upstairs window. Knowing that his friend had fallen 75 feet to the pavement below the appellant set about cleaning the flat and the balcony of bloodstains. He also threw his trainer after him. He then left Paradise House passing within feet of Mr Mazorodze’s prostrate body without enquiry and shortly afterwards disposed of his own trainers. The jury could safely conclude that the appellant’s later actions were designed to avoid detection of the fact that he had pushed, manhandled or thrown Mr Mazorodze off the balcony to his death.

The reasonably possible alternative to deliberate, unlawful action by the appellant was accident. It was this possibility that the circumstantial evidence was required to exclude before the appellant could be convicted of murder. The issue for the judge was whether on the evidence a reasonable jury could safely exclude the possibility of accident and draw the inference of guilt so that they were sure.

For present purposes it must be assumed in favour of the prosecution’s case that the third man and the use of the deceased’s telephone were irrelevant distractions. It must also be assumed that the appellant lied in his interview under caution about the degree of violence to which he had subjected his victim inside his flat. Finally, we shall assume that there were other features of the appellant’s account in interview that the jury had cause to doubt, including that an attempt to climb the exterior of the building was palpably dangerous. Nonetheless, the question for the judge was whether the jury could safely exclude an accidental fall whether it took place precisely as the appellant claimed or not.

We are troubled by the following features of the evidence: First, Mr Mazorodze had resisted the appellant’s attempts to remove him from the flat and into the lift. He did return to the vicinity of the appellant’s flat. The only purpose of doing so could have been to regain entry or to confront the appellant, perhaps to retrieve his clothing or other property. Second, no-one saw or heard the appellant on the walkway outside the flat during the critical minutes after the lift incident. Had the appellant been outside when Mr Mazorodze was lying on the ground or standing on the walkway looking out over the balcony rail, Mr Barrow could hardly have missed him. The walkway was just over a metre wide and there was no obvious hiding place. Third, there was blood at a high level on the left hand pillar where you would expect to find it if Mr Mazorodze had needed leverage to climb onto the balcony rail or to hold his balance while standing on it. There may have been other possible explanations but none could unequivocally exclude the appellant’s account. Fourth, Mr Mazorodze had suffered a head injury and had consumed a quantity of alcohol and narcotic drugs. It could not be assumed that he would be responding rationally to his ejection from the flat. Fifth, there was no evidence adduced that might have cast doubt on the appellant’s claim to have heard Mr Mazorodze’s fall. Unlike Mr Barrow and Ms Parnell, if his claim was true, the appellant had seen Mr Mazorodze in a precarious stance on the balcony rail and was anticipating the very accident that befell him. Sixth, while the behaviour of the appellant after the fall was consistent with the actions of a man who was guilty of murder it was also consistent with a man who knew he had committed a serious offence of violence and might well be blamed for his victim’s death. Either way, he was engaged in a hopeless quest for self-preservation. There was nothing about the evidence that tended to exclude the motive the appellant gave in preference to that suggested by the prosecution.

In our judgment, it is the absence of the appellant from the walkway once, which was not disputed, he had regained his flat that created a lacuna in the evidence that inference could not fill. The jury was being invited to infer that, at the very moment Mr Barrow turned away from his window to speak to Ms Parnell, the appellant had emerged from Flat 44 and propelled his victim over the balcony. That was, of course, a theoretical possibility but as a conclusion we consider that it was no more than speculation that filled a critical gap in the evidence.

In our opinion this case should have been withdrawn from the jury. The jury could not safely exclude the possibility that Mr Mazorodze’s death was an accident. For that reason the conviction was unsafe. The appeal is allowed and the conviction is quashed.