Martyna Ogonowska v R

The partial defence of loss of control requires sufficient evidence from which a properly directed jury could reasonably conclude that it might apply. A qualifying trigger does not itself establish loss of self-control. A reaction after the killing is probative only when combined with evidence of loss immediately before and during the act. A single stab, even if delivered in anger, and subsequent shock or hysteria may be consistent with a considered act followed by distress. The judge must rigorously assess the statutory elements sequentially, using the evidence most favourable to the defendant. Under section 54(3) of the Coroners and Justice Act 2009, PTSD is irrelevant to the objective comparison where its only relevance is general tolerance or restraint. Expert psychiatrists may assess disputed histories but may not decide whether an alleged assault occurred. Fresh evidence that merely re-runs the trial does not undermine a safe conviction.

At the Crown Court at Cambridge, the appellant, aged 18, was convicted of murder and possession of a bladed article. She received custody for life with a minimum term of 17 years, reduced by 121 days, and a concurrent sentence of 18 months for the bladed article offence. Her application for leave to appeal against conviction was 717 days out of time. The single judge refused an extension, but the renewed application was heard with the sentence application.

The conviction challenge concerned loss of control, self-defence directions, diminished responsibility, psychiatric evidence and fresh evidence concerning Dr Ho and other experts. The central questions were whether the evidence required the partial defences to be left to the jury, whether the trial evidence had been mishandled, and whether the fresh material rendered the conviction unsafe.

The renewed application for leave to appeal against conviction was refused. The application relating to sentence was left to be heard on a future date.

1. Loss of control. Sections 54(5) and 54(6) of the Coroners and Justice Act 2009 require the judge to leave the defence to the jury only where sufficient evidence exists on which a properly directed jury could reasonably conclude that it might apply. The assessment is a common-sense but rigorous evaluation of the evidence, with the statutory components considered sequentially and separately. The appellate court gives due weight to the trial judge’s evaluation, although the decision is whether the evaluation was right or wrong. The court applied the guidance in R v Goodwin [2018] EWCA Crim 2287.
2. The evidence did not show loss of self-control immediately before or during the stabbing. A qualifying trigger did not itself establish loss of control. Post-event shaking, hysteria and shock were consistent with reacting to the stabbing and had no sufficient probative force without contemporaneous evidence. Even assuming loss of control, there was insufficient evidence that a person of normal tolerance and restraint might have reacted by stabbing the victim. PTSD was irrelevant to that objective comparison under section 54(3), applying the interpretation explained in R v Rejmanski [2017] EWCA Crim 2061.
3. Self-defence. Evidence that the appellant had armed herself could be relevant to whether the knife was used deliberately and whether the force was reasonable. A separate direction that intent to cause really serious harm might bear on reasonableness was not required where the jury had been directed to consider whether the appellant honestly believed the force necessary. A passing observation that she could have left the vehicle caused, at most, marginal imbalance and could not affect the safety of the conviction.
4. Diminished responsibility and expert evidence. Evidence about the alleged rape relied on as the cause of PTSD concerned the facts of the murder and was not subject to the bad-character provisions of the Criminal Justice Act 2003. A psychiatrist could consider the patient’s history, contemporaneous material and disputed evidence when assessing symptoms and the trauma necessary to produce them. Whether the alleged rape occurred was for the jury, not the expert. Dr Ho’s impermissible opinion on that factual question was materially undermined in cross-examination and did not render the conviction unsafe.
5. Fresh evidence. The criticism of Dr Ho in R v Choudhuri [2019] EWCA Crim 2341 was case-specific and did not question his integrity. The disclosure failings and unresolved competence concerns arising from Grusza did not establish that he was a discredited witness in this case. The additional expert evidence was largely confirmatory or marginal. Section 23 of the Criminal Appeal Act 1968 did not permit the defence to be re-run with different expert evidence.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against conviction was refused. The sentence application was adjourned for a future hearing. [2023] EWCA Crim 1021.
• Crown Court at Cambridge: The appellant was convicted of murder and possession of a bladed article on 25 April 2019 and sentenced accordingly. The lower court judgment citation was not stated in the judgment.