WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
Neutral Citation Number: [2025] EWCA Crim 1232IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT WOLVERHAMPTON (MACDUFF J) [T20117201] CASE NO 202402217/B2 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE SINGH
MR JUSTICE LAVENDER
MR JUSTICE PEPPERALL
REX
V
IRENEUSZ MIKOLAJCZYK
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
_________
NON-COUNSEL APPLICATION
_________
JUDGMENT
(Approved)
LORD JUSTICE SINGH:
On 16 February 2012, in the Crown Court at Wolverhampton, the applicant was convicted unanimously by the jury of two counts of murder. On the same date, he was sentenced concurrently on each count to imprisonment for life, with a minimum term of 34 years less 294 days served on remand. The co-defendant, Ostolski, was acquitted by the jury of count 3, handling stolen goods.
In the present proceedings the applicant renews his application for an extension of time (4472 days), in which to seek leave to appeal against conviction following refusal by the Single Judge. In making that application he says that he was advised that he had no grounds of appeal. He received little help from legal representatives and was removed to Poland in 2016.
The facts can be briefly stated for present purposes. The victims were Giuseppe and Caterina Massaro who lived at 80 Woden Road, Wolverhampton. They were aged 80 and 77 years respectively. The applicant, a Polish national (then aged 21), arrived in the UK on 13 April 2011. He stayed with his sister and her family at 81 Woden Road, next door to the victims.
At the trial the prosecution's case was that on 21 April 2011 the applicant entered the victims' home and murdered them. Each suffered injuries during a sustained attack which involved the use of a hammer and knife. On 22 April 2011, the victims' daughter and granddaughter went to 80 Woden Road and found them dead. Their bodies were on the floor in the rear bedroom. Both were fully dressed. Giuseppe Massaro was partially covered by a duvet. The room was in a state of disarray with personal possessions and documents on the bed. Drawers and wardrobes were open.
There was a large amount of, indeed overwhelming, evidence adduced by the prosecution in support of its case. The Respondent's Notice in this case sets that evidence out by way of helpful summary.
The applicant has advanced 25 grounds of appeal although they can be categorised as essentially falling into the following five categories. First, he is not satisfied with the course of the entire investigation and the decisions taken by the prosecution. Secondly, his legal representatives failed to act in his best interests. Thirdly, his evidence was incorrectly translated. Fourthly, all witnesses "testified in his favour". Fifthly, he was intimidated by Ostolski.
In view of the criticisms made of trial representatives the applicant was invited to, and did, waive privilege in respect of his representatives. Trial counsel responded although there was no response from instructing solicitors. The applicant was invited to comment but did not provide a proper response except to serve the additional Defence Case Statement. We have found helpful the statement made by leading counsel who appeared for the applicant in his defence at the trial and accept what she has said was his conduct and his instructions at the time. We have also, as we have mentioned, been assisted by detailed grounds of opposition filed on behalf of the Crown in opposition to this application.
We have considered carefully the grounds of appeal and also the other matters to which we have referred. We find ourselves in complete agreement with the Single Judge, both in relation to the application for an extension of time and in relation to the merits of the underlying application for leave to appeal. We would reject the 25 grounds of appeal for the same reasons given by the Single Judge:
Extension of Time
Your letter of 12th April 2024 purports to explain the delay. Your stated reasons are:
You were advised by trial counsel that you had no grounds for an appeal;
You were unable to find alternative lawyers prepared to take on your case;
Ignorance of procedure and analysis of documentation took many years;
You were repatriated to Poland in January 2016, making things harder for you; and
The doubts about the safety of your conviction should lead the court to extend time to enable you to appeal.
It is well established that substantial grounds must be given before the court will exercise its power to extend time, and the longer the delay, the more onerous is this duty. In my judgment, your reasons stated above do not begin to justify a delay of over 12 years.
The guiding principle was stated in Thorsby [2015] EWCA Crim 1 as follows:
“… the principled approach to extensions of time is that the court will grant an extension if it is in the interests of justice to do so.”
Thus, it is necessary to consider the substantive grounds of appeal in order to ensure that, if an extension of time is refused, you will not suffer significant injustice and this is perhaps particularly the case where you still have many years of your sentence to serve. However, as I make clear below, I consider that there is no substantial merit on your appeal, and in those circumstances the extension of time is refused.
The Merits of Your Appeal
You were convicted on the basis of overwhelming evidence that you were in the house when Mr and Mrs Massaro were murdered, and your blood was found on both the murder weapons - the hammer and the knife. Furthermore, you changed your instructions as to what happened on several occasions, as indicated in the response to your application for leave to appeal provided by your counsel at trial, Ms Brand KC, necessitating the need for two amended defence case statements to be served.
Despite the above, you set out some 25 grounds of appeal which, you say, bring the safety of your conviction into question. Having considered all your grounds of appeal, I have concluded that there is no merit in any of them such as to lead me to doubt the safety of your conviction. I shall deal with each of them, albeit relatively briefly:
“The testimony which I gave in the HMP Woodhill for investigators was twisted to undermine my credibility”. This is not specific: it is unclear to what it is referring, but it appears to relate to the quality of the translation of a document from Polish, and you suggest that prosecuting counsel deliberately presented the incorrectly translated version to the jury, knowing that it was incorrect. There is no basis for this assertion.
“All the witnesses gave evidence in your favour, indicating that your co-defendant, Ostolski, and the prosecutor were testifying untruthfully”. Apart from the fact that prosecuting counsel never testifies, you and your counsel had every opportunity to exploit at trial any weaknesses in the evidence of prosecution witnesses: you cannot impugn the decision of the jury on this basis.
You seek to call evidence from a fresh witness, Mr Kus, who you say was with you throughout. However, you could have applied to adduce Mr Kus’ evidence, and there were agreed facts in respect of Mr Kus. You refer to testimony received 4 years after trial but you have delayed a further 8 years in bringing this forward. It appears that, in any event, Mr Kus’ evidence would not exculpate you.
You complain about the unavailability of CCTV evidence from certain cameras: if there were such evidential gaps, they were known at the time and your counsel had the opportunity to exploit them: the prosecution say that all CCTV evidence was served at trial.
You argue that you could not have been the driver of Mr Massaro’s stolen Peugeot motor car: this was a point available at trial, and in any event does not undermine the case against you in relation to the events in the house when the Massaros were murdered.
The fact that only your fingerprints and DNA were found in Mr Massaro’s car, and not that of Ostolski or Kus, only goes to prove your guilt, it does not exculpate you.
The unidentified shoe print was, again, a matter known at trial and was before the jury. It is no part of the function of the Court of Appeal to re-try the case and second guess the jury’s verdicts.
The time you had been staying next door is, again, a matter within your knowledge at trial and an argument fully available before the jury. It was rightly regarded as significant that, even in the short time you were there, you had the opportunity to observe the Massaros.
Your point about the finding of a balaclava, gloves and shoes at Mr Ostolski’s house is not understood.
The timing of the murder was not proved by the forensic evidence: you seek to cast doubt on that evidence, but have no substantive basis upon which to do so.
This point is not understood: Mr and Mrs Massaro could have been in their bedroom still fully clothed and before they went to bed. In the end, whether you were already in the house when the Massaros returned, having broken in, or you broke in after they returned did not matter: the important point is that you were present in the house when they were murdered, as you accept.
You claim, without adducing substantive evidence to this effect, that Ostolski framed you for these murders: this is bare assertion and of no value.
You claim, without justification or grounds to do so, that the prosecution were determined to blame you rather than Ostolski. The reality is that you were blamed because the evidence pointed inexorably in your direction.
It is normal procedure for the jury to be asked to leave court whilst matters of law are discussed.
This is repetition of ground (ii) above.
You seek to explain that you returned to the house twice after the murders because you were intimidated by Ostolski: if this was true, it was available to you to put before the jury at trial.
If you were under the influence of drugs/alcohol at the time, this was known to you and it would not, in any event, have been a defence or have assisted you.
As the learned judge explained to the jury in his summing-up, it is perfectly normal in cases such as these for the prosecution to rely on circumstantial evidence and the case is not necessarily any the weaker for that reason.
There is no evidence that this case was under-investigated because of the publicity: the contrary is likely to have been the case.
You do not explain how the fact that you and Ostolski were initially on the same prison wing affected the trial or the safety of your convictions.
Your lack of knowledge of the English language was known from when you were interviewed and was a peripheral issue: you were able to communicate with Ostolski in Polish.
This is repetition of ground (xviii) above.
Your point about the finding of documentation relating to the car is not understood.
Your explanation for your blood being on the murder weapons was put before the jury and they rejected it.
Your explanation for your blood being in Mr Massaro’s pocket was put before the jury and they rejected it.
In the end, you were convicted because the jury were sure of your guilt, and they had ample grounds upon which they could be sure. Your appeal does no more than seek to re-litigate the matter, using arguments which were fully available at trial and were rejected by the jury. It is not reasonably arguable that your convictions are unsafe."
In conclusion therefore, we agree with the Single Judge that the applicant was convicted of these murders because the jury were sure of his guilt. They had ample grounds on which they could be sure. The applicant's appeal does no more than seek to re-litigate the matter using arguments which were fully available at trial but were rejected by the jury. It is not reasonably arguable that these convictions are unsafe.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE
Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk