ON APPEAL FROM MERTHYR TYDFIL CROWN COURT
HHJ Curran QC
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SWEENEY
HH JUDGE CHRISTOPHER KINCH QC
(Sitting as a Judge of the CACD)
| David John Davies
|- and -
Mr Sefton for the Crown
Hearing date : 23 February 2018
Crown Copyright ©
Lord Justice Hamblen :
The outline facts
The prosecution case
(1) Automatic number plate recognition evidence – this led police to a VW Golf motor vehicle, LS06 KKO ("the car"), seen to be travelling in the general direction of the Higginbotham's home on the day of the robbery.
(2) Fingerprint evidence - the appellant's fingerprints which were found on the exterior of the front passenger door of the car.
(3) DNA evidence - a full DNA profile matching the appellant was found on the inside surface of a pair of black and brown gloves ("the gloves") found under the front passenger seat of the car. A mixed DNA profile with the appellant as a possible contributor was found on the inside surface of a single black glove, one of a pair also found under the front passenger seat.
(4) Evidence of fibres – fibres from the gloves matched fibres found on the duct tape recovered from a bin at the Higginbotham's address which had been used to restrain them.
(5) Cell site analysis - analysis of the appellant's mobile telephone was consistent with him travelling to the area of the robbery on 5 December 2014 (one week before the robbery). According to the Crown this visit was open to the interpretation of the scene being reconnoitred, and in any event connected the appellant with the area in which the robbery occurred. The phone was not in use for a period of time on 12 December 2014, the time period consistent in part with when the robbery was taking place.
(6) In interview the appellant said that he was not involved in the robbery then made no comment to all questions asked. The Crown said that adverse inferences should be drawn from the appellant's failure to mention the alibi defence later relied upon by him.
The defence case
The evidence at trial relating to Sam Davis and Lovering
"Ms Jenkins: Well can I have a little time to go and speak to Mr Davis because the difficulty, of course, is that if I make a submission that I don't think this jury can fairly determine this case and ought to be discharged, that, of course, has significant implications so far as Mr Davis is concerned if the trial can't be restarted straightaway. And I do need to take instructions from him before I go ahead and blunder into that application. But I do have concerns, your Honour.
Judge Curran: Very good, well you are perfectly entitled to take instructions about the matter, but I don't think that the consequences would be as devastating as you fear."
"I have taken instructions and considered how I can deal with that part of the evidence . . .
. . . with the officer in the case. I have discussed it with my learned friend and effectively given him indication of matters I would want the officer to deal with, which I understand will not be an issue at all.
"Simply in relation to the investigation of this offence, which I think will remedy that which was . . . "
. . . what I considered to be an issue yesterday. So I am content to proceed with the same jury."
The judge's directions
"Now the man, Sam Davis, you have heard a certain amount about Sam Davis, both from the prosecution witnesses and from the defendant. In particular you heard that he had certain features in common with the robber who wore dark sunglasses or was thought to have certain features in common with him. Sam Davis is not on trial, of course, but he is linked to the defendant in ways you know about and was strongly suspected by Geraint Higginbotham as being involved in the robbery. There was no identification of Sam Davis in any real sense; the man kept his face masked and wore the sunglasses. Even if there had been a positive identification of him, however, it would be necessary for me to warn you of the special need for caution in any case of disputed identity. One matter which was mentioned, the apparent attempt to mask his features to cover up his distinctive lips and eyes, as described by Geraint, is self-evidently insufficient, as, if they were masked, no one could tell if it was him or not or if they were particularly distinctive lips or eyes.
Another matter, Ian's description of the way in which he moved, is again quite insufficient for you to draw any positive conclusion at all. And upon the basis of those pieces of evidence, you could not draw any conclusion against Sam Davis at all. What the circumstantial evidence in general tells you about the possible involvement of Sam Davis is another thing which is quite separate from purported identification of him. And that is a matter entirely for you."
"He was asked, "On 12th December, did you think the men had the impression that you had money?" "Yes," he said. "You have said that Sam Davis was the only one I had a problem with and that he was the one with the crowbar?" "Yes," he said. "Did you think it was Sam Davis because you recognised him?" He said, "Well, Sam Davis has distinctive lips and eyes." "And because they were covered up, you thought it was him?" "Yes." He said, "I couldn't recognise him for definite." Well I have already indicated to you the way to approach that."
"And he was cross-examined. And he was asked whether, in view of what he had said about the third man, "You didn't give any name to the police?" And he said, "I can't remember. No." But then in re-examination he said thought it was, he said, "I believe it was a young lad called Sam Davis," but that, ladies and gentlemen, was apparently purely from the way he stood or moved, which is, you may think, wholly insufficient for anyone to form any definite identification."
"He said that if Ian Higginbotham had been asked if he knew Sam Davis, he thought he would have been asked that, if he knew him, but he had never said he was involved, he said there was simply an element of suspicion.
And he confirmed that Sam Davis had been spoken to and interviewed under caution and that, following that, the Crown Prosecution Service had decided there should be no further action taken."
The grounds of appeal
(1) Trial counsel (i) failed to apply to exclude any evidence of or reference to Sam Davis by Geraint H or Ian H (ii) failed to avoid Sam Davis' name being referred to as someone the Higginbothams had been involved in a dispute with some months earlier. The evidence was irrelevant and inadmissible.
(2) Trial counsel failed to prevent the leading of evidence from Ian of a description of male 3 (namely Sam Davis), especially with reference to his posture.
(3) Trial counsel wrongly adduced in evidence through the officer in the case that Sam Davis had been interviewed under caution and that the CPS had decided there should be no further action taken. This led to re-examination of the officer to establish that Lovering was also interviewed about the robbery.
(4) Trial counsel failed to advise the appellant properly about discharging the jury following the purported identification of Sam Davis.
(5) The judge's direction to the jury as to the purported identification of Sam Davis was insufficient to cure the prejudice caused thereby.
(6) In all the circumstances, the conviction is unsafe.
The fresh evidence
(1) The appellant's case was alibi and his alibi was presence with Sam Davis and Lovering;
(2) The prosecution established Sam Davis lived near the Higgingbothams and was known to the Higgingbothams;
(3) The prosecution established Sam Davis had acknowledged that the Higgingbothams dealt cocaine and the robbers demanded the money for "coke";
(4) Sam Davis provided the motive for the robbery.
(5) Geraint volunteered before the jury that Sam Davis had told people in the community that he had committed the robbery and that admission had been reported to him.
(6) Trial counsel's attempt to cure the admission of prejudicial identification evidence of Sam Davis by adducing in evidence through the officer in the case made matters worse as when the officer was asked to confirm that a decision was made not to prosecute Sam Davis he replied "Unfortunately not." This attempt to rectify the wrongful admission of the identification of Sam Davis led to the officer expressing his disagreement with the decision not to charge and would have risked confirming "no smoke without fire" prejudices. Further, this led to re-examination of the officer to establish that Lovering, the alibi witness of the appellant, was also interviewed about the robbery as well. This evidence should not have been adduced as it amounted to pure prejudice.
". .. And upon the basis of those pieces of evidence, you could not draw any conclusion against Sam Davis at all. What the circumstantial evidence in general tells you about the possible involvement of Sam Davis is another thing which is quite separate from the purported identification of him. And that is a matter for you".
(1) The case against the appellant was based upon forensic evidence directly linking the appellant to the robbery, with supporting circumstantial evidence. The defence was alibi yet the two alibi witnesses were not called to give evidence on the appellant's behalf. The jury were entitled to ask themselves why that was the case. The purported identification or lack thereof of Sam Davis could not have had any bearing upon the jury's decision in light of the evidence in the case and the judge's composite directions. The jury were entitled to discount the appellant's version of events which they did having been properly directed as to the law, including the appellant's failure to answer questions in interview save for an initial denial.
(2) The grounds of appeal amount to criticisms of trial counsel's approach to the case. The course of action adopted was upon the explicit instructions of the appellant, having been advised properly with reasoned, tactical decisions being undertaken on his behalf.
"The failings of counsel may directly or indirectly lead to the conclusion that a conviction is unsafe. What is clear, however, is that decisions made in good faith after proper consideration of the competing arguments, and, where appropriate, after due discussion with the defendant, will not without more render a conviction unsafe even though the court of Appeal may disagree with them; particularly does this apply to a decision as to whether or not to call the defendant. Conversely, if a decision was taken either in defiance of, or without proper instruction, or when all promptings of reason and good sense pointed the other way, this may render a conviction unsafe: see R. v Clinton, 97 Cr. App. R. 320, CA."