R v Dedan Smith

On 15 February 2024 in the Crown Court at Woolwich before His Honour Judge Andrew Lees, the applicant (then aged 40) was convicted of murder. On 4 April 2024 he was sentenced to life imprisonment with a minimum term of 16 years less 398 days spent on remand. He applies for an extension of time (6 days) in which to renew his application for an extension of time (1 week) for leave to appeal against conviction.

Shaun McEvoy lived in a flat in London. The flat formed part of hostel accommodation and support for individuals with complex needs, including substance abuse. The property had communal bathrooms and kitchens, and self-contained flats. It was agreed that Mr McEvoy could stay at the flat even though the registered occupant was someone else. Dean Lewis, Christopher Flynn and Rebecca Poole lived in the same congested flat. All four of them were drug addicts.

It was not in dispute at trial that the applicant had attended the flat on 15 February 2023. On that date, Mr Lewis called 999 and the emergency services attended. Mr McEvoy was in a collapsed state of cardiac arrest. Despite the best efforts of the emergency services at the scene and medical staff at the hospital to which Mr McEvoy was transferred, his life could not be saved and he died a few hours later. The Home Office pathologist confirmed that he had multiple rib fractures, a ruptured spleen, deep internal bruising to his chest wall, and 2 litres of blood had collected in his peritoneal cavity. The cause of death was blunt force trauma to the torso. While some injuries could be explained by CPR, the number and distribution of the fractures and the internal injuries suggested a non-accidental cause such as stamping.

The applicant was arrested on 1 March 2023. He was interviewed by the police on the following day in three stages. At the first stage, he declined the services of a solicitor and answered questions. In the second interview, he indicated that he wished to have a solicitor and so the interview was terminated. In the third interview he was represented and answered some but not all questions. He provided, essentially, the same account in that interview, when he had a solicitor, as he had in the first interview when he did not.

The Prosecution case was that the applicant had attended the flat to enforce a drug debt and that he had smashed up and thrown various items in the property, attacked Mr McEvoy and stamped with a shod foot on his torso. The applicant had also tried to punch Mr Flynn and threatened Mr Lewis with a knife before leaving.

The Prosecution relied on multiple sources of evidence including eye witness accounts from Mr Lewis, Mr Flynn and Ms Poole, evidence of the Home Office pathologist as to the injuries and cause of death, telephone evidence, call data, cell site analysis and CCTV evidence showing the applicant arriving at the hostel and leaving it and later changing his clothes.

It is worth us summarising briefly the effect of the eyewitness evidence from the others who lived in the flat. This is conveniently summarised in the Respondent's Notice. Each of the eyewitnesses provided witness statements and gave evidence at trial. Mr Lewis and Mr Flynn positively identified the applicant as the assailant and as the drug dealer "Elvis" on a video identification procedure. These witnesses confirmed:

The subsequent forensic examination of the scene confirmed among other things that, consistent with the eyewitnesses' accounts of a glass item being smashed, there were glass fragments on the floor. The applicant's DNA was on one of them. A kitchen knife was in close proximity on the work top in the communal kitchen.

The applicant did not admit to being "Elvis" until service of an Addendum Defence Statement the week before the trial commenced. He gave evidence at trial that he had learning difficulties. He admitted that he had known Mr McEvoy, Ms Poole and Mr Flynn for a year-and-a-half but said that he did not know Mr Lewis. He accepted that he was a drug dealer and had been supplying drugs to them. He had attended the flat to supply drugs. He said that Mr Flynn and Mr Lewis had been angry with Mr McEvoy. He had left the flat while they were arguing with each other and had not got involved in the argument. The defence relied on previous convictions of Mr Lewis and Mr Flynn for violent offending as demonstrating that they had a propensity to be violent.

The judge gave a number of rulings during the trial. The majority of the lengthy grounds of appeal relate to those rulings.

First, the applicant contends that the judge erred in refusing to grant an intermediary during his evidence and failed to intervene during the cross-examination to ensure that the applicant gave his best evidence. The defence applied at trial for the use of an intermediary for the entire duration of the trial based on a report of a Communicourt intermediary. The judge refused the application. The applicant now maintains that, in circumstances where he had spent the majority of his education in a special school, with an Education, Health and Care Plan, or Statement, it is likely that his cognitive and other vulnerabilities have been found to be deficient over a number of years. On this basis, it is submitted that an intermediary was necessary for the fairness of the trial.

We reject this submission which fails to grasp the realities of what happened before the judge. As the Single Judge emphasised when refusing leave, the judge spent two days hearing expert evidence on the question of the need for an intermediary and the related question of the exclusion of the applicant's police interviews. As his detailed ruling demonstrates, the judge considered all the relevant legal questions. The Communicourt intermediary cannot possibly be regarded as able to provide expert evidence on the applicant's cognitive or learning difficulties. She is simply not qualified to do so and, in fairness to her, she expressly stated in her report that she was not to be treated as an expert witness. The grounds of appeal fail to persuade us that any of the psychological evidence from the expert witnesses who were called by the parties demonstrated the need for an intermediary. We see no error in the judge's approach or conclusion.

Nor is there any foundation for the contention that either the court or counsel failed to ensure that questions were put to the applicant fairly and in a way that he could understand. The applicant was represented at trial by leading and junior counsel. There is no reason to suppose that they would not have raised any difficulties with the judge at the time.

The second ground of appeal is that the judge should have excluded the first police interview under section 78 of the Police and Criminal Evidence Act 1984 and Code C as the interview had been conducted in the absence of a solicitor and appropriate adult.

During the two-day hearing that we have mentioned, the judge heard evidence from two psychologists and took into account the written evidence of a further psychologist instructed by the defence. The judge also heard from the custody sergeant and interviewing officer who was also the officer in the case, DC Clough. The judge was therefore well placed to determine the admissibility of the interview on the full evidence that he carefully considered. The applicant had asserted at the start of his first interview that he had autism and that this could affect his ability to answer questions. The judge held:

Furthermore, as we have indicated, when represented by a solicitor at the third interview, he maintained the account that he had given in his first interview. His solicitor expressed no concerns about the applicant's cognitive ability or need for an appropriate adult. The judge reached a fair and balanced decision on the material available to him. There is no arguable basis for this Court to interfere.

In his third ground of appeal it is contended that, in light of the applicant's cognitive abilities, the judge should not have given an adverse inference direction about the applicant's failure to mention facts in interview that were relied upon in evidence. It is submitted that the direction given to the jury was unfair to the applicant as it did not deal with the applicant's explanation for his failure to mention things in interview. It is asserted that the combination of the adverse inference direction and the lies direction that was also given to the jury undermined the fairness of the trial.

As the Single Judge stated, there can be no dispute that the applicant lied about certain parts of the evidence in the case. On the facts of this case it was only fair to him to give a "lies direction". As set out in detail in the Respondent's Notice, there were instances in which lies were mixed in with points not mentioned by the applicant. In our view, if the applicant had wanted an addition to the adverse inference direction, such as the inclusion of his explanation for failing to mention any particular matter, he should have raised this with the judge and doubtless his trial counsel would have done so. In any event, any omission in this regard cannot even arguably render the conviction unsafe.

Finally, it is contended that the prosecution failed to make all reasonable lines of inquiry to find out whether Mr Lewis had been diagnosed with schizophrenia which was relevant to whether he could have killed Mr McEvoy. We agree with the Single Judge that if the defence case was that Mr Lewis was, or might have been the murderer, then that should have been included in a Defence Statement.

We agree with the Single Judge also that no proper link has been established between Mr Lewis' mental health condition and the killing. There could be no other purpose in seeking to adduce this evidence than to seek to suggest that his condition would lead him to be violent and therefore be more likely to be the killer. We agree with the Single Judge that that is clearly bad character evidence and the judge rightly refused its admission.

We have given independent consideration to all the grounds advanced by the applicant but find ourselves in entire agreement with the Single Judge.

For these reasons the grounds of appeal are not reasonably arguable. The conviction is not arguably unsafe. We refuse to extend time which would serve no purpose and we would refuse leave to appeal.