Abstract
The Facts
On 23 August 2016, Mr Grzegorz Pietrycki was murdered in his flat in London (at [5]). The deceased shared a flat (Flat 10B) with the three co-accused jointly charged; they were Patryk Pachecka, Grzegorz Szal and Mr G (at [5–7]). The third co-defendant is referred to as Mr G in the interest of not influencing any future criminal charges that may be brought. On 29 December 2017, Pachecka and Szal were convicted of murder and sentenced to life imprisonment with a minimum 18-year sentence on majority verdict (10-2) (at [1]). The jury could not agree on a verdict for Mr G, and on retrial on July 2018, the second jury again failed to agree upon a verdict (at [2]).
The victim was stabbed in his bedroom in Flat 10B, he exited through the window at the front of the property, climbed onto the front stairs (at [7]), and then made his way 61 m down the road to another house. The victim was shouting in a foreign language and banging on a house door. While the home occupier called the emergency services, the victim died (at [6]). Blood was found in the bedroom of Flat 10B, and a trail followed the victim's path to where he had died at the front door stop at the home occupier's front door, where a substantial amount of blood was found (at [7]). The post-mortem examination showed that the deceased had several injuries (at [9]). The fatal injury was a stab wound to the left side of the neck which had passed through the neck muscles and bisected the trachea and the right carotid artery (at [9]). The police investigation focused exclusively on Flat 10B. The street of travel which the deceased took and was later found was excluded as the scene of another attack (Applicant Grounds of Appeal at [199]).
Pachecka and Szal appealed against their conviction at the Court of Appeal Criminal Division (CACD). They were granted a retrial because the evidence submitted to the jury was incorrect and could significantly impact the verdict (at [94]). Pachecka and Szal were acquitted unanimously of murder and manslaughter at the retrial in January 2021. Both defendants had spent five years in prison for a murder they did not commit.
Grounds of Appeal
For Pachecka, there were three grounds for appeal. Ground 1 related to the character evidence of Mr G (at [44]). Ground 2 related to hearsay evidence which will not be discussed (at [47]). Ground 3 related to fresh evidence from pathologists relating to how the injuries occured (at [50]).
Ground 1: The Character of Mr G
At the original trial, enquiries had been made to the Polish authorities regarding the criminal history of Mr G. ‘Under Polish Law, documentation cannot be disclosed to the lawyers on behalf of another individual’ (Applicant Grounds of Appeal at [12]). However, the prosecution could be provided with the history if a letter was written to the President of the Bedzin Court (Applicant Grounds of Appeal at [65–71]). Pachecka and Szal disclosed their criminal history to the jury in the first trial (at [31–32]), whereas Mr G did not (at [40], [43–46] and [60]). At the original trial, Mr G was presented as a man of good character (Applicant Grounds of Appeal [at 63]). Further, when Mr G was retried in July 2018, he relied on the convictions of the murder of Pachecka and Szal and their previous convictions in Poland (Applicant Grounds of Appeal at [8]). The judge directed the jury in the original trial that evidence of the previous convictions of appellants could be relevant in two ways (at [39]). First, it is capable of being relevant because counsel for Mr G says that you cannot rely on Mr Szal and Mr Pachecka as truthful witnesses, and you are entitled to have regard to a defendant's own character revealed by his previous convictions when deciding whether that is true. I say that you may have regard to his character. Whether and to what extent it assists you, you must judge…. The second way in which this evidence may be relevant is as follows. Mr Szal and Mr Pachecka say that there were not involved in the fatal attack. They both blame [Mr G]. In judging whether each defendant's case is or may be true, you are entitled to have regard to his own past behaviour. In the light of these convictions, the Crown say that these two defendants have a propensity for using unlawful violence and/or the unlawful possession of weapons. On behalf of [Mr G] it is claimed that this makes it more likely that it was Mr Szal and/or Mr Pachecka who was involved in the attack (at [39]).
After the first trial, investigative journalists in Poland made inquiries as to Mr G's criminal history, and they found that Mr G had a criminal history of robbery, (at [43], [87] and [90]), violence, and making threats, as well as involvement in organised crime (Applicant Grounds of Appeal at [65] & [71]). Mr G's criminal history was previously unavailable because criminal offences are erased from the Polish National Register after five years post-completion of the sentence (Applicant Grounds of Appeal at [65]). Therefore, the character of Mr G was misrepresented to the jury in the first trial, which gave Mr G an advantage over Pachecka and Szal relating to propensity (at [44–46]). This ground was successful.
Ground 3: Fresh Evidence from Pathologists
Pathologists Prof Jack Crane and Dr Claus Buschmann submitted that the fatal wound was unlikely to have occurred in Flat 10B where the assault began (at [50]). Blood spatter forensic expert Jo Millington questioned whether the blood in Flat 10B could be because of non-arterial injuries (Applicant Grounds of Appeal at [202]). The bloodstaining inside Flat 10B was not diagnostic of the fatal wound and could be explained by bleeding from the other injuries that he sustained for example, to the back of the head, which would have bled profusely, as it was less widespread and extremely unlikely that the victim could have climbed, ran or shouted after the stab wound to the left side of the neck as it had passed through the neck muscles and bisected the trachea and the right carotid artery (at [51–52]). The bloodstaining on the doorstop supported the victim being fatally stabbed at or around this location and not Flat 10B. This is important as Pachecka and Szal were seen on CCTV elsewhere during this time (at [50]), whereas Mr G could be seen on CCTV following the victim on his escape from Flat 10B. The crime scene officer on the case had not considered additional locations as part of the attack and had not been instructed by an expert to examine beyond Flat 10B. Therefore, scientific analysis was not conducted, and any retrospective examination could only refer to the photographic record of the crime scene (at [53]).
Ground 3 was not successful as it failed to meet the criteria under s 23(2)(d) of the Criminal Appeal Act 1968 (CAA) as there was no reasonable or adequate explanation as to why this evidence was not adduced in the original trial (at [74–80]). The judges relied upon the principle of finality as discussed in Foy [2020] EWCA Crim 270 (at [76]). However, it was at the discretion of the judges to apply the exception developed by Lundy v The Queen [2013] UKPC 28, which allows for complex expert evidence to be admitted to avoid a miscarriage of justice even though it cannot be regarded as fresh. The judges readily accepted that the evidence of Prof Crane and Dr Buschmann was capable of belief and would have been admissible at trial, but they held that the criteria under s 23 of the CAA were not satisfied (at [78–80]). In those circumstances, we are satisfied that it is neither necessary nor expedient in the interests of justice to receive this fresh evidence. To do so would subvert the trial process. We are unable to accept that there is a reasonable explanation for the failure to adduce this evidence at trial…. The application to adduce fresh evidence is, in our view, an attempt to re-run the case on a substantially different basis (at [79]).
Held
It was held that Pachecka and Szal's convictions were unsafe and must be quashed. There were three grounds for appeal for Pachecka. Ground 1 related to the character evidence of Mr G, which was successful as it could have misled the jury (at [60] and [86]). Ground 2 related to hearsay evidence which was found to be admissible in the first trial and was therefore rejected (at [61] and [66–73]). Ground 3 related to fresh evidence from pathologists relating to how the crime occurred; this was not successful as it was not considered ‘fresh’ evidence (at [62] and [79–80]). A retrial was held where the new scientific evidence was adduced, and Pachecka and Szal were acquitted.
Commentary
CAA s 23 provides the details allowing fresh evidence to be admitted in the CACD. There is an important distinction to be made between new and fresh evidence. Fresh evidence is that which was not available at the time of the original trial through reasonable diligence and could affect the safety of the conviction. If the evidence was available at the original trial (adduced or not) then the courts will not accept this new evidence unless the exception under Lundy can be applied.
Fresh evidence is not admitted as a matter of course, otherwise there would be a risk of retrying a case (Roberts, 2017)
1
. ‘Under section 23, there is a duty to admit evidence if certain criteria of credibility, relevance, and an adequate explanation for not adducing it at the original trial are fulfilled’ (Roberts, 2017: 309). Therefore the discretion is left to the courts to decide what would satisfy ‘a reasonable explanation’ for failure to adduce the evidence (Roberts, 2017). If it were credible evidence that was not “fresh” it could still be admitted if there was a risk of miscarriage of justice. Where a case against an accused rests exclusively or principally on scientific evidence, when on appeal, application is made to have admitted new scientific material which presents a significant challenge to that evidence, the court should not be astute to exclude the new material solely because it might have been obtained before the trial (Lundy v The Queen [2013] UKPC 28 at [120–122]).
If Ground 1 was not available, it is impossible to know for certain what would have happened to Pachecka and Szal. The CACD selected the least contentious ground of appeal to overturn their convictions. What is known is that their convictions were quashed, and they were acquitted on retrial because of the work of the investigative journalists who obtained the criminal history of Mr G; the defence counsel who made a substantial investment to find new expert witnesses, including Prof Jack Crane and Dr Claus Buschmann; and, Inside Justice who assisted in funding and providing an introduction to forensic expert Jo Millington. This case is an example of a serious risk of a miscarriage of justice. The new scientific evidence presented an alternative and more accurate view on how the offence occurred, which had been improperly analysed in the first trial. This was partly due to the failure to manage the crime scene appropriately and in not instructing scientists to examine blood staining outside Flat 10B closer to the collapse site. Further it was also a failure of the scientists not to ask for examination of those areas of bloodstaining even though they were aware of them. The appeal courts must be ‘astute’ to where new scientific material challenges the original finding and use discretion in applying the exception under Lundy. The CACD are in a difficult position, if the first ground of appeal was not available it is possible that they may have decided to apply the Lundy exception.
There are practical reasons why limitations on new versus fresh evidence ought to be in place. Applicants cannot use this process as a way of retrying their case, and there needs to be finality to the process for offenders, victims of crime and the community (Roberts, 2017). However, the ‘finality of justice’ should not supersede the exercise of discretion for factually innocent persons (Shorter, Cobain & Madland, 2022) 2 in adducing new evidence when it cannot be classified as fresh. However, this is taking an overly narrow approach to the Lundy exception.
If Pachecka and Szal were unsuccessful in their appeal, they could have made an application to the Criminal Cases Review Commission (CCRC). The CCRC can refer a case back to the CACD, but the threshold is high. Under the CAA s 13, the Commission ‘shall not’ refer unless there is a ‘real possibility that the conviction would not be upheld’ by the CACD. No application was made to the CCRC to review this case however the CCRC are limited by resources (like most of the criminal justice system) and the parameters of the law. The CCRC need to act in the public interest in the distribution of resources and what cases are likely to succeed. Given the parameters of new versus fresh evidence and the narrow approach taken to Lundy, it is not unreasonable to suspect that the CCRC would not believe appeal Ground 3 would succeed.
Conclusion
Only one of the three grounds of appeal submitted by Pachecka was successful. Without the criminal history of Mr G, it is possible that Pachecka and Szal may have failed to have their matter reheard and be proven innocent. The distinction between new and fresh evidence is important in law but not in the consequence of factual innocence. The CACD has taken a narrow approach to the exception under Lundy. To not allow new evidence when it cannot be classified as fresh creates a serious risk of a miscarriage of justice.
Footnotes
Acknowledgements
The author would like to thank the very thoughtful comments and reviews by Dr Marianne Doherty, Jo Millington and those from Inside Justice - in particular those who worked so hard on this appeal.
Declaration of Conflicting Interests
The author(s) declared the following potential conflicts of interest with respect to the research, authorship, and/or publication of this article: The author is a trustee of Inside Justice.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.