R v Melusi Brian Madaweni

Upon referral to the full court by the Registrar of Criminal Appeals, the applicant applies for leave to appeal against both conviction and sentence and for extensions of time in which to do so. In the case of the application for leave to appeal against conviction, the extension of time sought is 635 days; in the case of the application for leave to appeal against sentence, the extension of time sought is 630 days.

The applicant also seeks leave to introduce fresh evidence in the form of psychiatric reports from Professor Inti Qurashi, as well as a statement from the applicant's mother, Angeline Madaweni, dated 27 December 2023, and a transcript of audio calls made by the applicant and recorded by his mother prior to the homicide.

On 15 February 2023, in the Crown Court at Derby, following a trial before His Honour Judge Egbuna and a jury, the applicant was convicted of murder. On 20 February 2023, he was sentenced to imprisonment for life. A period of 25 years was specified as the minimum term under section 322 of the Sentencing Act 2020 (less 197 days spent on remand).

The background facts, in summary, are that on the night of Saturday 6 August 2022, the deceased, Billy Pearson, had been out with friends and shortly before half past midnight became involved in an argument and then a fight with the applicant and others in the grounds of St Mary and All Saints Church, Chesterfield. Initially outnumbered, the applicant ran away. He returned home. It was the prosecution case that he then put on a pair of fingerless weightlifting gloves, collected a black balaclava, armed himself with two screwdrivers which he concealed in the back pocket of his jeans, and then set off back to the town centre looking for revenge. As he walked, he took off his T-shirt, tied it around his waist and put on the black balaclava. He ran to St Mary and All Saints Church. As Billy Pearson was walking through the churchyard, the applicant stabbed him in the left side of the head with one of the screwdrivers. The blow was delivered with such force that the screwdriver went straight through the side of his skull and into his brain. Billy Pearson collapsed instantly and died seven days later.

The applicant was detained by police a short time later. He was in a highly agitated state. He was restrained and handcuffed. He shouted: "They attacked me" and "(one of them) stabbed one of his own". The applicant claimed that he had been out for a jog and that he had done nothing wrong. He also denied that he had had a weapon. The police conducted a quick search of the area and found the discarded balaclava and screwdrivers. The applicant was arrested on suspicion of inflicting grievous bodily harm. Following caution, he stated: "Can I say my story? They tried to stab me with two screwdrivers and I grabbed one off him, yeah".

The applicant was taken to the police station. During the booking-in process he told the custody officers: "They were poking. They [had] two screwdrivers. And they actually tried to stab me with it. Luckily enough he stabbed himself. I remember. I remember. I remember".

The applicant was interviewed on 7 August 2022. Present were a legal representative and an appropriate adult. His account was that he had come upon two men and two women, who were drunk, in the churchyard. They seemed to be under the impression that he was a drug dealer and asked him whether he had anything on him. One of the men (the deceased) produced two screwdrivers and "poked" the applicant in the stomach with them while the second man stood behind the applicant preventing him from leaving. The applicant disarmed the man with the two screwdrivers and threw one away. One of the women then "bashed" him in the face, so he pushed her back. The deceased had picked up the discarded screwdriver and the two men pulled the applicant to the ground and kicked and punched him. The applicant managed to get away but the men assaulted him once more outside a bar. The applicant got away and returned to his flat.

He realised one of his phones was missing and so he decided to return to the town centre to retrieve it. He put on weightlifting gloves and a balaclava "… so they don't see me…". He still had the screwdriver in his pocket. On his way back to the town centre, he was assaulted by another group of men who had held him by his T-shirt and so he had taken it off.

He had returned to St Mary and All Saints Church and taken the screwdriver out of his pocket, as he suggested (rather implausibly), to return it to the two men who had attacked him. In the churchyard, he bumped into the man from the earlier altercation (the deceased). That man had been laughing and calling out, "Yo! The Feds is coming. The Feds is coming". The deceased had shouted to his friends, "He's here! He's here!" and the friends had shouted, "We've got him! We've got him!" The applicant said that he punched the deceased with his right hand, which was the hand in which he was holding the screwdriver. He accepted that he aimed the punch at the man's head, but claimed that he had not meant to punch the man to start a fight. He also claimed that he had not meant to hurt the man he struck. He thought he had "landed [the blow] with [his] knuckles" and that he had not realised that "what [he] had in [his] hands (the screwdriver) had actually caught him as well". He thought that the man was just drunk when he fell to the ground.

At trial, the defence case was that the applicant had acted in lawful self-defence and that he had not intended to kill the deceased or to cause him serious harm.

The applicant gave evidence. He said that he was on prescription drugs for depression, anxiety and insomnia. He kept himself fit by shadowboxing, weights and running. On the night in question, he was going to the town hall where he usually shadowboxed. He had come across the group in the churchyard and they asked him if he had any cocaine. One of the females of the group accused him of selling fake drugs to one of her friends. Things became heated. The deceased "poked" the applicant with two screwdrivers which the deceased had taken from his shorts. The deceased said, "We are gonna stab you". The applicant managed to take possession of the two screwdrivers. Punches were exchanged and the applicant was kicked while he was on the ground. The applicant got away and returned home. There was blood on his hands, jeans and the screwdriver. He realised that he had dropped his phone and cash, and so decided to go back to the churchyard to look for them. He took the balaclava with him to put fear in the same individuals who had beaten him up. The screwdrivers were in his pocket.

Once in the churchyard, he recognised the deceased as the person who had beaten him up before. He panicked and hit the deceased because he was not willing to be beaten up again. He believed that if he did not hit the deceased, the rest of the group would have joined in to beat him up. He did not intend to hit him with the screwdriver in his hand. He then ran because he did not want to get beaten up. He did not realise that the deceased had suffered a traumatic injury.

The applicant confirmed that the reference he had made in his police interview to taking one screwdriver off the group was a mistake. He said that he was in a state of shock at the time.

The basis for the application for leave to appeal against conviction is that the reports of Dr Qurashi provide compelling evidence that the defence of diminished responsibility was available to the applicant at trial and would have been likely to have succeeded. However, the pre-trial investigations into the applicant's mental health history were inadequate; no psychiatric evidence was relied upon at trial; and no defence of diminished responsibility was raised. It is principally in order to adduce the evidence of Dr Qurashi that the application for leaver to adduce fresh evidence is made.

The basis for the application for leave to appeal against sentence is that if the murder conviction remains, the minimum term should be reduced significantly to take into account the impact of the applicant's disordered mental state at the time of the killing and the consequent reduction in his culpability. No psychiatric evidence was relied on at the sentencing hearing.

The extensions of time are sought on the basis that, following his conviction and sentence, the applicant's family contacted present counsel and expressed concern that the applicant's disordered mental state had not been adequately investigated for the purposes of the trial and that since his sentence it had deteriorated significantly. Thereafter, steps were taken to obtain material relating to the applicant's mental health history and to instruct an expert to assess him and to prepare the psychiatric reports.

As a result of the applicant's severely disordered mental state post trial, his change of legal representation (arranged by his family), the investigations carried out by the new solicitors, the need to instruct and obtain the opinion of Dr Qurashi, and the difficulties in arranging visits to Whitemoor Prison to enable the psychiatric assessment to be completed, there has been an unavoidable significant delay in seeking leave to appeal, none of which is the applicant's fault and all of which is explainable by reference to the above steps which have needed to be taken.

Despite the considerable and significant delay, we have taken the view that if there is such merit it the appeal that leave to appeal should be granted, the applicant should in all the circumstances, including the nature of the offence and the length of the term of imprisonment, be given the necessary extensions of time in order to do so. Thus, the applications for extensions of time should, in our judgment, be wholly dependent on the merits of the applications for leave to appeal, to which we now turn.

The applicant has waived legal professional privilege, which has enabled his originally instructed solicitor and counsel to respond to this matter. Mr Justin Ablott (his solicitor) records that he originally instructed a senior junior, Mr Whitehead and that they had a conference with the applicant on 30 September 2022, when no concerns were raised about the applicant's mental health in that conference, either in terms of fitness to plead and stand trial, or in terms of any partial defences.

Mr Whitehead was replaced by leading and junior counsel, Richard Atkins KC and Matthew Cullen. Following a consultation on 28 December 2022, counsel advised that a psychiatrist should be instructed to consider the following issues in relation to the applicant: his fitness to plead; his fitness to give instructions; his fitness to stand trial; whether he was fit to be interviewed; and whether his mental health may have been affected at the time of the incident.

Mr Atkins KC has explained:

Dr Jon Kenedy was accordingly instructed and he assessed the applicant via video link on 19 January 2023. On the same day he sent an email to Mr Ablott (the applicant's then solicitor), in which he stated:

Mr Ablott replied:

Dr Kenedy's email was forwarded by Mr Ablott to Mr Atkins a few days later. Mr Atkins has explained:

Due to Mr Atkins' unavailability, Kevin Hegarty KC was instructed in his place. He represented the applicant, together with Mr Cullen, at trial, which started on 2 February 2023. By the time that the trial started, no report had been received from Dr Kennedy.

On 8 February 2023, the trial had reached the stage when the prosecution were calling an officer, Detective Constable Beer, to give evidence of the applicant's interview. Whilst that evidence was being given, and during a comfort break, at 12.43 pm a juror passed up a note which read:

The learned judge responded:

This caused the applicant's junior counsel, Mr Cullen, to send an email to Mr Ablott at 12.46 pm in the following terms:

In response, at 2.55 pm, Mr Ablott wrote:

The psychiatric report of Dr Kennedy, dated 7 February 2023, was attached. The psychiatric report of Dr Kennedy included the applicant's account of the incident in question. It repeated his assertion that he had punched the victim to the head; that he did not realise that he had a screwdriver in his hands; and that he did not intend to stab the man or to cause him serious harm. He said that he was very scared and anxious at the time. Dr Kennedy expressed his opinion as follows:

As far as Mr Cullen and Mr Hegarty KC were concerned, Dr Kennedy's report resolved the issues in relation to the applicant's mental health and the matter was not further investigated; nor was the report deployed.

In the course of his legal directions, the learned judge returned to the question of the applicant's mental health. He directed the jury as follows:

The jury in due course convicted the applicant of murder, thereby rejecting his defence that he had stabbed the victim in self-defence; alternatively, that he lacked the necessary intent for murder.

As stated, the basis for this application is that, in his reports dated 7 October 2024 and 4 December 2024, Professor Qurashi has provided "compelling evidence that the defence of diminished responsibility was available to [the applicant] at trial and would have been likely to have succeeded".

In his report of 7 October 2024, Professor Qurashi records being given the applicant's account of the incident in the following terms:

Professor Qurashi reports asking the applicant why he was holding a screwdriver in his right hand at that time, to which the applicant replied: "It was to protect myself. After I had hit him I turned around and ran away. I was then stopped by the police."

We note that this account was not materially different from that which the applicant gave at trial. Professor Qurashi then states his opinion as follows:

In reliance on this opinion, it is submitted on behalf of the applicant that there is now compelling psychiatric evidence that the applicant's substantial impairment of mental responsibility at the time of the killing was such that he was in fact guilty of manslaughter, not murder, pursuant to the provisions of section 2 of the Homicide Act 1957. It is further submitted that the applicant's mental health was inadequately investigated prior to his trial in February 2023. Had it been, the defence of diminished responsibility would, or should have been recognised and used to afford the applicant a defence to murder.

In submissions to us today, Mr Taylor KC on behalf of the applicant, has fortified and supported those submissions by reference to the events that occurred when the applicant was in custody when he committed an offence of causing grievously bodily harm to a prison officer. Mr Taylor points to the fact that, in relation to that assault, the prosecution accepted a causal connection between the applicant's mental health condition and his actions in assaulting the prison officer. He suggests that the attitude of the prosecution in that case should be taken to be indicative of the attitude which the court should have taken in relation to the homicide with which we are concerned.

For the respondent, it is submitted by Mr Aspden KC that the application for leave to appeal should be refused because the conviction for murder is safe and that the admission of the proposed fresh evidence would by contrary to the interests of justice within the meaning of section 23 of the Criminal Appeal Act 1968. It is pointed out that neither diminished responsibility, nor loss of control was relied on at trial. Instead, at trial the applicant "gave evidence about his actions and thought processes on the night of the murder. He did not suggest that he had been unable to form a rational judgment and to exercise self-control, as is now suggested by Dr Qurashi. Instead, the applicant provided a coherent, but dishonest and self-serving, narrative of the events which culminated in the murder. The applicant's evidence and Dr Qurashi's conclusions are therefore irreconcilable. The Crown's case was that the murder was a premeditated revenge attack with a screwdriver on an unarmed man who was taken by surprise by the applicant and killed".

Referring to Dr Kenedy's report, the Crown observed that, by reference to paragraphs 6 and 7 of his Opinion section, he concluded that diminished responsibility was not available because even if the applicant had been suffering from an abnormality of mental functioning with a substantial impairment, this did not provide an explanation for the killing (as required by section 2(1)(c) of the Homicide Act 1957). This opinion was reached even upon an interpretation of the evidence that was most favourable to the applicant and an assumption that the applicant had been suffering from an abnormality of mental functioning which caused substantial impairment.

In reliance upon R v Erskin [2009] EWCA Crim 1425, at paragraph 3, it is submitted that it is not usually in the interests of justice to admit fresh evidence when the matter in issue was investigated by the defence before trial, and that this case is no exception. Further, the fact that there is a disagreement between an expert originally instructed and one instructed post-trial is not usually a proper basis for admitting fresh evidence. Reliance is placed upon R v Evans [2009] EWCA Crim 2243, at paragraph 71.

We agree with the submissions of the Crown. In our judgment, although Professor Qurashi's report gives a much fuller basis for the diagnosis that the applicant was suffering from an abnormality of mental functioning which caused substantial impairment, that was also the basis upon which Dr Kennedy gave his opinion and there is therefore in fact little or no difference between them so far as the diagnosis is concerned.

However, the difficulty, in our judgment, is that Professor Qurashi has not set out in his report a basis upon which this court could conclude that the applicant's mental state provides an explanation for his actions on the night in question, and in particular his actions in killing Billy Pearson. We cannot identify any basis in Professor Qurashi's report for the suggestion that the abnormality of mind substantially impaired his ability to understand the nature of his conduct, or to exercise self-control. Failing that, we surmise that Professor Qurashi is referring to a substantial impairment of his ability to form a rational judgment. But that is not, and was not, the issue. The defence here was self-defence and/or lack of intent, with the prosecution alleging that the applicant deliberately armed himself for the purpose of revenge following the earlier fight. We do not understand the defence case at any point to have been that, due to his abnormality of mental functioning, the applicant had some sort of delusional thinking or hallucinations about Billy Pearson or his group.

Furthermore, we agree with the Crown that this case is not so compelling as to take it outside the principle enunciated in Erskin that "save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been but were not put before the jury, our trial process would be subverted".

Whilst it is unfortunate that the opinion of Dr Kennedy was received as late as it was, and in circumstances where he had not had a chance to peruse the applicant's medical records and counsel did not have the opportunity to discuss the report with him, we accept and agree with the Crown's submission that counsel were justified in accepting Dr Kennedy's opinion at face value and in particular his opinion that the applicant's mental state did not "provide an explanation for his conduct since he describes not being aware of the screwdriver or of intending to cause serious harm". For counsel to have pursued a defence of diminished responsibility would, in the circumstances, have been contrary to the instructions they were being given by the applicant and would potentially have undermined the defence which he was wanting to put forward.

We therefore refuse the application for leave to appeal against conviction.

We are of the view that the opinion of Dr Kenndy should have been before the court for the purposes of sentence. We take the view that it is arguable that the applicant's mental health disorder was a matter relevant to sentence, and that it is arguable on behalf of the applicant that had the opinion of Dr Kennedy been before the court, that could have had a significant effect upon the minimum term ordered to be served by the applicant.

In those circumstances, we will give directions in relation to the further hearing of this application and for the full court to consider the admission of the opinion of Dr Qurashi for the sole purpose of an appeal against sentence and for the full court to consider whether leave to appeal against sentence should be granted in the light of the evidence which the full court decides to admit.

It will be for the full court to consider the application for the extension of time in the context of its consideration of whether there should be leave to appeal against sentence.

LORD JUSTICE EDIS: Mr Taylor, the aim will be that the next hearing will be in effect a rolled up hearing. The reason we are not dealing with it by the grant of leave in the usual way is because of the fresh evidence angle. It will be for the court to decide whether to receive the evidence, even on the question of sentence. But if they do receive the evidence, it will be because they think the appeal is arguable, so they will give leave and then they will decide what to do.

So, you will need Dr Qurashi's report. We will speak to Mr Aspden in a minute about what the prosecution might wish to do. Is there anything else you would need to do? Would you need to have him present to give evidence?

MR TAYLOR: My Lord, the only question that I am wondering about is whether in light of your Lordships' and my Lady's judgment restricting it to the sentence issue and, in effect, rejecting Dr Qurashi's opinion about what he says were the links between that and the offending, whether he could be invited to do a further and short report just addressing sentence?

LORD JUSTICE EDIS: Yes, I think that would be helpful. Yes, we do. We think that would be a good idea. It is about culpability ---

MR TAYLOR: Yes.

LORD JUSTICE EDIS: --- and mental illness, short of justifying the diminished responsibility defence, is a statutory factor, is it not ---

MR TAYLOR: Yes.

LORD JUSTICE EDIS: --- in Schedule 21? So, that is where it rests.

MR TAYLOR: Yes. So, if I could invite the court to direct now, in terms of whether Dr Qurashi needs to attend, or whether I can invite the court to – well, it really depends on what he says in that report and what the Crown's response is.

LORD JUSTICE EDIS: Yes.

MR TAYLOR: The issue has clearly been narrowed considerably.

LORD JUSTICE EDIS: Yes.

MR TAYLOR: It may not be necessary for him to addend. But, my Lord, could I ask that we are allowed to obtain a further report and then for the Crown and myself to notify the court as to our effective reasons ---

LORD JUSTICE EDIS: Yes.

MR TAYLOR: --- for Dr Qurashi's attendance.

LORD JUSTICE EDIS: Yes, I think that is the way forward, and we can give any necessary – or I can give any necessary further directions on the papers. There will not need to be another hearing once you have both had an opportunity to consider Dr Qurashi's further report.

MR TAYLOR: Yes. Thank you very much. Thank you.

LORD JUSTICE EDIS: Mr Aspden, does that seem appropriate?

MR ASPDEN: My Lords, my Lady, there is nothing I would wish to add.

LORD JUSTICE EDIS: Thank you very much. So, I do not know how long it will take to prepare the report. It will take quite a little while to get the case listed again.

MR TAYLOR: Yes.

LORD JUSTICE EDIS: So there is time to do that.

MR TAYLOR: My Lord, the only other matters – if leave had been granted in terms of the conviction, then I would have invited the court to direct that up to date medical records are obtained for Dr Quareshi. It seems that it may be slightly artificial for him to do a further report at this stage without perhaps having seen the former records for the past 12 months.

LORD JUSTICE EDIS: Yes. Well, I think that is a matter for you. We are going to give you leave to secure a further report from Dr Quareshi, to serve it on the court and the prosecution. What it deals with is, I think, up to you.

MR TAYLOR: Thank you. And just finally, I know we are in effect in the same position as we are today, but the next hearing will be a leave hearing and it will be rolled up?

LORD JUSTICE EDIS: Yes, it will.

MR TAYLOR: Then could I ask that Mr Madaweni be permitted to attend by video if that can be arranged?

LORD JUSTICE EDIS: Yes. Yes, absolutely.

MR TAYLOR: Thank you.

LORD JUSTICE EDIS: Everybody should attend ready for the appeal, and that should include, obviously, the concerned relatives of the victim who will also probably wish to be present and all the rest of it, so that there is no obstacle to the court simply hearing the whole case and deciding the final outcome on the next occasion.

MR TAYLOR: Thank you, my Lord.

LORD JUSTICE EDIS: Thank you very much. Thank you both very much for your help.