Neutral Citation Number: [2009] EWCA Crim 969
 
No: 200803184/B1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Friday, 20th March 2009
 
B e f o r e:

LORD JUSTICE DYSON

MRS JUSTICE RAFFERTY DBE 
 
MR JUSTICE SWEENEY 
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R E G I N A 

v 

MAREK MIAZGA 
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Mr L Walker appeared on behalf of the Applicant
Miss Moore QC appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE DYSON:  On 12th May 2008 at Luton Crown Court the applicant was convicted on two counts of murder, (and sentenced to concurrent sentences of life imprisonment with a minimum term of 25 years); on four counts of theft, concurrent sentences of 12 months' imprisonment on each count) and on four counts of attempted theft, sentences of 12 months' imprisonment concurrent on each and concurrent with the other sentences of imprisonment.  He renews his application for leave to appeal against conviction following refusal by the single judge.
2.	The facts are these.  On 1st June 2005 at 5.45 in the afternoon the bodies of two brothers, Waldemar (Waldek) and Andrezej Markuszewski, were found in the lounge of their home address in Luton.  Both of them had been savagely beaten and their injuries were consistent with heavy blows delivered by way of stamping or the use of a heavy blunt weapon.  
3.	The prosecution case was that the applicant and one Remek Piotrowski, acting together in a joint enterprise, had carried out the attack.  The deceased brothers were last seen in the afternoon of 30th May, two days earlier.  A set of barbells was found at the scene which it was said were very likely to have been used as the murder weapon.  Following a forensic examination DNA profiles were obtained from the barbells which matched the DNA profiles of both the deceased and Piotrowski.  There was CCTV and other evidence in the light of which it was likely that the attacks had been carried out between 4.15 and 5.20 on the afternoon of 30th May.  The Crown relied on the fact that the two defendants were captured together on CCTV both before and after those times and that thereafter they were in frequent telephone contact.  A broken clock was also found at the scene showing the time at 5.15 pm.
4.	It was the Crown's case that immediately afterwards the two attackers stole Waldek's cash card and headed back into Luton town centre, where they began to empty his bank account.  That was the subject of counts 4, 6, 8 and 9. The applicant stayed in Luton and Piotrowski fled to London.  He returned briefly to Luton before leaving the country.  
5.	The defence case was that the applicant had had nothing to do with the murders and he had not been present when they were committed.  He had been drunk, so drunk that he was asleep in a park at the time.
6.	The issue for the jury was whether they could be sure that the applicant had participated in the attacks on the two brothers.  Between 30th May and 12th June 2005, approximately 23 fraudulent transactions were conducted on Waldek's bank account.  This period included three days which coincided with the applicant's detention in custody when no transactions took place.  These were the subject of counts 5, 7 and 10.
7.	The grounds of appeal included two groups of grounds, the first of which concern the decision of the judge to allow evidence to be adduced of some of the applicant's previous convictions, but Mr Walker has abandoned those grounds of appeal and we say no more about them.
8.	The other grounds of appeal concern an allegation of jury bias which arises in this way.  After conviction the applicant had a conference with Mr Walker, (who was representing him then as now) and his solicitor and an interpreter.  They discussed the case in general terms and the applicant informed his legal representatives that he had known one of the members of the jury.  He said that he had told the interpreter who was interpreting for him during the trial, one Marie Sochacz, that he knew one of the members of the jury.  He concedes in a statement which has been shown to us that he did not tell the interpreter full details of an incident which he described to his legal representatives and that he merely told the interpreter that he recognised the man.  He did not tell either his barrister or solicitor about this until after his conviction.
9.	We have a statement dated 17th July 2008 from the interpreter.  She says that on the day when the jury were sworn, on 14th April 2008, the applicant told her that he thought that he had seen a member of the jury in a shop in Luton.  He indicated the large built male sitting second from the left in the front row.  She says that the applicant said that he did not know the juror personally, so there was no need to object to this juror when he was sworn.  She says that she and the applicant did not discuss this issue further.
10.	It is on that material that Mr Walker submits that there is an arguable case that that the juror and therefore the entire jury were biased, such as to cast doubt on the fairness of the proceedings and therefore the safety of the convictions.  
11.	In our judgment, there is nothing in this point at all.  We take at face value and as correct what the interpreter says she was told by the applicant.  At one point Mr Walker seemed to be suggesting, that we should in some way interpret her statement as bearing a meaning different from what on its face it clearly says.  But, in our judgment, there is no warrant for that.  The interpreter had no axe to grind.  She had no reason for doing other than state what she was told by the applicant.  On the basis of what she was told by the applicant, the defendant did no more than say that he thought that he had seen a member of the jury in a public place.  That cannot form the basis of a successful argument of bias or apparent bias and, in our judgment, there is no substance in this proposed ground of appeal.  We refuse to grant leave to appeal against conviction.  
(Submissions re: sentence) 
12.	LORD JUSTICE DYSON:  Although until this morning there had been no application for leave to appeal against sentence, such an application has now been made. Mr Walker says that it has only been possible to make it now because it is only very recently that he became aware of the fact that the co‑accused, Piotrowski, was sentenced to life imprisonment with a minimum period of 23 years.  It is the disparity between the minimum period in the case of Piotrowski and the 25 year minimum period in the case of Miazga that forms the basis of the appeal for which Mr Walker seeks leave.  
13.	In our judgment, this application is wholly without merit.  Miss Moore has explained to us that there were two distinguishing features between the cases of the two co‑accused:  one was the fact that Piotrowski was 21 years of  age at the time of the offending, whereas the applicant was 39 years of age and Miazga was in a position of some influence over the younger man, they being work colleagues.  Secondly, although they both have previous convictions, the applicant has a worse previous record than has the co‑accused.  
14.	Those two features, in our judgment, provided ample material to support the relatively modest distinction drawn between the two by the judge when he came to decide the minimum terms that they should serve.  Accordingly we refuse this application for leave to appeal against sentence.