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Cite as: [2000] EWCA Crim 37

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KAMARA, R v. [2000] EWCA Crim 37 (9th May, 2000)

Case No: 9902769X4

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
(Mr Justice McCowan)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 9 May 2000
B e f o r e :
LORD JUSTICE OTT0N
MR JUSTICE DOUGLAS-BROWN
and
MR JUSTICE HOOPER

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	REGINA
	- v -
	MR JOHN KAMARA

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr Michael Birnbaum QC (400 1800) (instructed by Gabb and Co Powys, Solicitors for Mr Kamara)
Mr Bruce Houlder QC (583 0410) (instructed by CPS Central Casework, Solicitors for the Crown)
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Judgment
As Approved by the Court
Crown Copyright ©

On the 30 March at the end of the hearing of the appeal we announced our decision that the appeal was allowed and quashed the sentence of life imprisonment. We indicated that we would give our reasons in writing. These are the reasons.
LORD JUSTICE OTTON:
On the 16 December 1981 in the Crown Court of Liverpool before McCowan J the appellant was convicted of murder and robbery. He was sentenced to life imprisonment. The appellant was jointly indicted with Raymond David Gilbert, who pleaded guilty at a critical point in the trial. On 24 March 1983 the CACD heard and dismissed the appellant's renewed application for Leave to Appeal against conviction. He now appeals against conviction upon a Reference by the Criminal Cases Review Commission (CCRC) pursuant to section 9 Criminal Appeal Act 1995. Section 13 provides that a Reference should not be made unless the CCRC consider that there is a real possibility that the conviction would not be upheld were the reference to be made. The CCRC came to the conclusion that there was such a real possibility arising out of:
1. The potential unfairness of the identification evidence.
2. The failure of the police to disclose some 201 witness statements taken during the course of the investigation, which were deemed "non-material" despite the fact that some involved sightings of possible suspects outside the betting shop.
3. The failure to direct the jury as to the special need for caution in relation to the evidence of the remand prisoners.
Mr Michael Birnbaum QC, on behalf of the appellant, also identified several additional grounds of appeal. It is only necessary to refer to those parts of the evidence upon which the CCRC reached its conclusions and which concern the relevant grounds of appeal.
Background:
On Friday 13 March 1981 during the morning Mr John Suffield, the Manager of a Betting Shop on Lodge Lane in the Toxteth area of Liverpool, was robbed and stabbed to death in his shop by two (possibly) men. £176.00 was stolen from the safe. Mr Suffield had been tied up and apparently after failing to give the safe combination quickly enough because of a speech impediment, he was stabbed 19 times. The prosecution case was that the co-accused Gilbert did the stabbing, while the appellant was present and assisting. When Gilbert was arrested he made a written statement on the 17 March 1981 in which he admitted the offence and named Kamara as his accomplice. Later Gilbert denied he was involved in the offence in a statement made on the 15 May. Both Gilbert and Kamara pleaded not guilty. Soon after starting his evidence in chief, Gilbert unexpectedly changed his plea to guilty. The evidence against Kamara consisted of three principal matters: Identification, what he said during police interviews and evidence of admissions to fellow remand inmates. Kamara gave evidence during which he denied any involvement in either of the offences.
The issues for the jury were (i) whether the appellant had been correctly identified as the second man; (ii) if so, whether he had assisted in a joint enterprise to rob the shop, aware that Gilbert was carrying a knife and (iii) whether he had been present at and complicit in the stabbing of Mr Suffield.
Eight days after the jury's verdict, on 24 December 1981 and 6 January 1982, Gilbert made a statement to Kamara's solicitor, Mr O'Leary. In this statement, he exonerated Kamara and named his cousin, Roy Forrester as the other man involved. The statement was sent to the Director of Public Prosecutions, and on 16 March 1982, Gilbert was interviewed by police officers. On this occasion however, Gilbert retracted his statement to Mr O'Leary and made a statement to the police implicating himself and Kamara once again. On 11 May 1982, he was seen once more by Kamara's solicitor and expressed a wish to retract both of his statements and proceeded to re-assert his own innocence. Consequently, Junior Counsel at trial, Mr Alex Kennedy, felt unable to continue to support his draft grounds of application and the matter proceeded to the single judge on 28 June 1982, on the basis of Kamara's own grounds. Following the single judge's refusal, Mr Tom Sergeant of `Justice' took an interest in the case, and instructed new solicitors and junior counsel (Mr Michael Birnbaum) who composed a number of grounds of appeal, principally:
a. Following Gilbert's change of plea and during the defence case of Kamara references were made to Gilbert's statement (Exhibit 19), which may have led the jury to conclude this statement constituted evidence against Kamara.
b. Counsel invited the Court's attention to Gilbert's post trial statements exonerating Kamara and implicating Forrester and submitted that had these statements been available before the trial the jury would not have had attached any importance to Exhibit 19.
c. The balance of comment in the summing-up was more favourable to the prosecution than was warranted by the evidence.
On the 11 January 1983 the Court of Appeal (Waller LJ, Bristow J and Stocker J) refused the application. Waller LJ, delivering the decision of the Court, said that the Trial Judge had made it clear that Gilbert's written statement was not evidence against Kamara. The jury had been directed that although it was a difficult exercise, they should put out of their minds the statement of Gilbert. The Trial Judge had dealt with this problem fully and concluded his direction by emphasising that the statement was only admissible against Kamara if the jury was satisfied that he was present at the murder. Thus the summing-up could not be criticised in this respect. The Court did not specifically address the other grounds but concluded:
"We have considered the whole of the grounds put forward on behalf of the applicant Kamara and we are satisfied that there are no grounds for granting leave to appeal."
A. The Identification Evidence
The Witness
Mrs Edmunds, a 30-year old woman, was the only witness who identified Kamara. In her first witness statement, made on 14 March, she said she was on Lodge Lane on her way to do her shopping about 9.40 am to 9.45 am on 13 March. She was sure about the time because she checked the clock on leaving her house and it was 9.30. In evidence she said she left home at 9.30 am and would have been opposite the betting office 2 to 3 minutes later. She had walked up Lodge Lane from Smithdown Road and before she got to the Telegraph filling station she noticed 3 men. One was a half caste man who was slouched by the direction signpost just to the left of the betting office. Another half caste man was struggling with a white man and was taller than the other half caste man and at the identification parade she picked out Kamara as the taller man struggling with the white man. In her witness statement she described the taller man as wearing:
"a blue snorkel jacket with a fur collar. He was about 25, possibly half-cast; not very black, slim build with short cropped curly hair. He had a droopy moustache which was a thick one."

He was wearing blue jeans and gloves which were dark either blue or black. The other half caste man was 20 to 21 years, 5' 8" to 5' 10" tall with his hair slightly bushier than the other man but it was not a full afro cut. He had a small beard which ran round from his hairline around the point of his jaw. The white man was 2 or 3 inches shorter than the man who had hold of him, His hair appeared to be a bit thin on top and was light brown but not fair. He was wearing a grey coloured suit type jacket and:
"I think a dark pair of trousers which may have been blue".

She helped to create an identikit picture of the taller struggling man and that showed a full moustache turned down. In evidence she said that the man she identified as Kamara had on a blue parka and jeans with grey gloves on his hands. She had a side view of his face and a full frontal as he looked at her as she walked down the road. He had short hair but not right to the head. He was not clean shaven but "I cannot now recall what he had".
In describing the smaller man she said he had a blue bomber jacket on and jeans:
"His hair was bushier than the first man. He was a half caste. I think he had a small beard."

When she was cross examined she said that this man had his back to her at first:
"He turned his head and looked back up the road for a second, I did not have a very good look at his face. I did not really notice him because I was watching the other two men struggling."

The Identification Parade
This took place on 27 March. At this early stage both Gilbert and Kamara were represented by the same Solicitor, Mr Rex Makin, who was and is very experienced in criminal work. The evidence was that there was some difficulty in assembling a parade consisting of similar men in sufficient numbers. However, in the end 20 men were obtained and for the first identity parade on which Gilbert stood there were 12 volunteers. Two witnesses, Mrs Wright and Mr Guidio picked out no-one but Mrs Edmunds picked out a volunteer, Mr Arthur Mairah. The identity of those who stood on the first parade is known because the list has survived. There would undoubtedly been a similar list of names for the second parade but it is not now available. This is unfortunate because there is a dispute, which was not raised at the trial, as to whether Mr Mairah, after the Gilbert parade, also stood on Kamara's parade. There is however, no dispute that five men from the first parade also stood on the second. Inspector Formby who gave evidence before us, who was in charge of the parades, had no recollection without seeing the lists of those attending the two parades. He accepted however, that the summing up makes it clear that this happened. He did not think that Mr Mairah would have gone on the second parade but without seeing the list of those on that parade he could not be certain. What the Judge said was this:
"Then Inspector Formby got together a second parade of the twenty volunteers remaining. He says that the solicitor acting for Mr Kamara and Mr Gilbert at the time objected to two of them, but left eighteen, twelve of whom had already been on a parade. He says he spoke to the solicitor about the composition of the second parade and the solicitor said he thought it would suffice if some shorter (sic) men were substituted on the second parade. In consequence Mr Gilbert plus five volunteers went off, and five shorter ones plus Mr Kamara went on. One of the ones who went off was the man who had been wrongly identified in the first parade."
We feel that the Judge meant that taller men were asked to go on the second parade. It was not suggested by counsel at the trial that the Judge was in error in saying that the man who had been wrongly identified in the first parade was one of those who left. Mr Mairah and Mr Phillip Kamara, John Kamara's brother, who gave evidence before us were insistent that Mr Mairah had been on the second parade. Having regard to the content of the summing up we think it extremely unlikely that Mr Mairah was on the second parade and that the recollection of Mr Mairah and Mr Phillip Kamara after 19 years is faulty although we do not doubt that they were honest witnesses. On Kamara's parade there were 6 new volunteers and 5 who had been on the earlier parade. Again Mrs Wright and Mr Guidio failed to identify anyone. Mrs Edmunds walked along the line to a point about half way along it and she then returned to Inspector Formby and asked him to ask them to turn round. The men turned round and faced the wall and Mrs Edmunds walked directly to Mr Kamara standing between No 7 and 8 and placed her hand on his shoulder. She said in evidence that she was certain it was Kamara but as a check she got them to turn round so that she could have another view of his face. This was because when she saw the man's face outside the betting office his face had been tilted towards her and she remembered, although the Inspector did not, asking him to tilt their faces towards her when they turned.
The Appellant's grounds on identification
1. The identification parade was held in breach of the identification rules in Home Office Circular Number 109/1978 in that
(i) A number of men on the first parade also stood on the second parade
(ii) Kamara stood out both in clothing and general appearance from the other members of his parade.
Excerpts from two rules are relied on. Rule 12
"The witnesses should be prevented from seeing any member of the parade before they are brought in for the purposes of making identification."
and Rule 14:
"In no circumstances should more than 2 suspects be included in one parade and where there are separate parades, they should be made up of different persons."

Mr Bruce Houlder QC on behalf of the Crown accepted that these requirements were not followed in Kamara's case. Rule 14 also provides this:
"The suspect should be placed among persons (at least 8 or if practicable, more) who are as far as possible of the same age, height, general appearance (including standard of dress and grooming) and position in life, as the suspect."

In their evidence Mr Mairah and Mr Phillip Kamara said that it was obvious that Kamara stood out like a "sore thumb" from the others on the parade and that it was so obvious as to be commented on by all taking part. He was wearing prison issue clothing of a blue striped shirt and brown trousers. The brown trousers did not fit him and ended 2 or 3 inches above his ankle and he wore either shoes without laces or slip-on shoes. He was unkempt and dishevelled whereas the others on the parade were wearing smart contemporary clothing and had well groomed hair. We also heard from Mr Anthony Akaraonye who was on Kamara's parade. He is now an Assistant Director of Social Services in Liverpool. He remembers Kamara as looking quite shabby in appearance. He was not wearing shoes but slip-ons or slippers. He had no socks on and his trousers were too short. His Afro hairstyle was not well combed or groomed. He could not remember anything about his shirt. He remembered discussion amongst those on the parade about Kamara's appearance and how it contrasted with the others on the parade. We also heard evidence from Mr Edward Mulrooney who was on both parades. He said that Kamara stood out on the parade. He was wearing the clothes of someone in custody. He had on a white shirt and black trousers which were too short and he was unkempt.

On this issue we are left unpersuaded that Kamara stood out to any appreciable extent on this parade. We have no doubt that those who have given evidence to assist us have done their best to give their honest recollection of the events of March 1981. We have already expressed the view that it is extremely unlikely that Mr Mairah was on this parade. Although the recollection of all now is that all or most on the Kamara parade expressed strong comment about his appearance and how it led to him being picked out, not one of these witnesses did anything about it. Mr Akaraonye was only 19 and it is perhaps understandable that he took no action. Mr Mairah on the other hand was 25 and in his witness statement made to the Criminal Cases Review Commission said that he was very concerned for Gilbert and Kamara and in fact took time off work in order to attend their trial each day at court during the trial. At no stage did he make any comment to Kamara's legal representatives about his profound unease at the conduct of the identification parade. Neither did Phillip Kamara. Mr Makin has refused to attend to give evidence before us and in view of the state of his recollection we did not insist on his attendance. He was however, asked to comment by the Commission on the suggestion that Kamara stood out from the parade because of his clothing and he said:
"I can't remember but I can emphatically say that I cannot accept that as it would have been contrary to my practice to arrange matters in the best interests of the client."

If Kamara had stood out in the way suggested it is very remarkable that this was not raised at the trial. Kamara's notes and comments on all the prosecution papers are, we were told by Mr Birnbaum, available to him and we invited him to show us any comment or criticism by Kamara relevant to this point and he was unable to do so. We think that the idea that he was at a disadvantage has germinated very slowly over the years. It did not surface at all for 10 years and we do not think this recollection is reliable.
Ground Two
The Judge failed to direct the jury as to:
1. The reasons why identification evidence should be scrutinised with particular care.
2. A number of Specific weaknesses in the evidence of Mrs Edmunds.
3. The efficacy of the parade as a means of testing fairly her ability to identify.
(I) Mr Birnbaum referred us to R -v- Turnbull & Others 63 Criminal Appeal Reports 132 at 137 where Lord Widgery CJ, giving the judgment of a Full Court, said:
"First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the Judge need not use any particular form of words."
The Judge having referred to Mrs Edmunds picking out Kamara on an identification parade said this at 16g:
"that is identification evidence, and I must tell you that there is a special need for caution before placing any reliance on it. Whenever a case against an accused man depends wholly or substantially on the correctness of identification evidence, whether you think the case here does depend wholly or substantially on that identification must in turn depend on the view you take of the admissions which Mr Kamara is alleged to have made to various witnesses, but when examining the identification evidence, that is to say Mrs Edmunds evidence, examine closely the circumstances in which it came to be made."
The Judge then, as required by Turnbull, dealt with the circumstances of the identification in some detail but he did not return to the need for caution and the reason for the need for caution. We think there is force in Mr Birnbaum's criticism of the summing up at this point. It does not appear to be a point argued by Mr Birnbaum in the application to this court in 1983. Turnbull, as can be seen from the passage we have cited, lays down three requirements at this stage of a summing up. The Judge should:
1. Warn the jury of the special need for caution before convicting on the identification evidence.
2. Instruct the jury as to the reason for such need.
3. Refer the jury to the fact that a mistaken witness can be a convincing witness and that a number of witnesses can be mistaken.
These requirements were described as "fundamental" in R- v - Pattinson and Exley [1996] 1 Criminal Appeal Reports 51 where at 53 Lord Justice Henry said:
"So the trial Judge, in any case where the case against the accused depends wholly or substantially on identification evidence must ensure that the fundamental requirements laid down in Turnbull are met - and they will not be met simply by paying lip service to that judgment. This court will look to see that the message of Turnbull has been made clear to the jury and the reason for that was given by the Full Court in Turnbull "In our judgment the dangers of miscarriage of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment."
I. Mr Birnbaum drew our attention to the difference between the description of Suffield's assailant in her witness statement and in her evidence. He also took us through her deposition and pointed to discrepancies there but it does not appear from the summing up that Mrs Edmunds was cross examined about her deposition. Mr Birnbaum says that further differences between the statement and her evidence were not identified by the Judge for the jury. The Judge had instructed them to look for any material discrepancy between the description she gave when first seen by the police and Kamara's actual appearance, but no reference was made to discrepancies between statement and evidence. The summing up was meticulous and we think that a likely explanation was that defending counsel concentrated on differences between Kamara's appearance as seen in the photograph taken in custody on 19 March and her descriptions to the police rather than discrepancies between statement and evidence. That is why we think the Judge spent some time dealing with the photo fit picture and comparing it with Kamara's photograph. It may be that defending counsel did not dwell on this as there was more than a passing resemblance between the photograph and the photo fit. The moustache could not be described as thick but it was a proper moustache and did turn down at the edges. We do not think that Mr Birnbaum has made out this part of his grounds for appeal. It is not clear to us from the summing up whether in fact Mrs Edmunds was cross examined in any detail on her witness statement and if the statement was not before the jury, this criticism loses its force. No full transcript of the evidence is now available.

II. The criticism that the Judge failed to direct the jury as to the efficacy of the parade is, we think, of more substance. The Judge referred to the recommendation of whether a separate parade should be made up of different persons, which did not happen in this case. The Judge reminded the jury of the evidence of Inspector Formby that this came about at Mr Makin's insistence because he wanted 12 on the parade plus the suspect. The Judge said the inspector said he had no alternative but to agree. The Judge continued:
"Members of the jury, if that is so you may think it is rather difficult to blame the police for that."
He referred to the evidence of Detective Sergeant Murray who had had the task of organising the men for the parade and the difficulty he had had in assembling them and continued:
"Again, if you accept that evidence can you blame the police for that? Was it reasonably fair, that is the question for you to consider."
Mr Birnbaum submits that was not the only question for the jury to consider, and that the Judge should at this point, have asked the jury to consider whether the reduced number of volunteers who had not been seen before by the witness in anyway rendered the parade less effective and less safe as a means of identification. One specific warning suggested by Mr Birnbaum which the Judge should have given to the jury was that they should ask themselves whether such a parade constituted a fair test of her ability to identify accurately. We think it would have been better if the Judge had instructed the jury to look at the evidence in that way.
Mr Birnbaum relied on a further ground which had its origins in a Home Office investigation some years ago. In 1980 or 1981, at all events before Kamara's trial at the end of 1981, Mrs Edmunds had given evidence on behalf of her brother who had been tried and convicted at Birkenhead Crown Court for burglary and aggravated burglary. She had given evidence in support of her brother's alibi. This information was not known to Kamara or his legal advisors at the time of the trial and Mr Birnbaum suggests that if it had been known it would have enabled Kamara's defence to investigate whether she had been dishonest, and even if honest, the rejection of her evidence by another jury could have been invoked to challenge her reliability. This matter was investigated by the Home Office and she made a statement in September 1992 maintaining that her evidence that her brother had been at home with her at the relevant time was correct. She was supported in that by her husband. The officer in the case, Inspector George Jones, in a statement, said that he was satisfied at the time that Mrs Edmunds was confused over dates and he did not consider that she was committing perjury. Neither prosecuting counsel nor the trial Judge raised the question of perjury so far as she was concerned. Mr Houlder relies on those statements and submits that this ground is misconceived. The Commission at paragraph 1168.68 in their statement of reasons say:
"There is no new information to support the allegations of dishonesty against Mrs Edmunds. This issue is not therefore considered to affect the safety of Mr Kamara's conviction."
We agree.
However, we think there is some force in the suggestion by the Appellant's solicitor that as Mrs Edmunds had visited her brother on remand she might have anticipated that the suspect she was to identify might also be wearing prisoner on remand clothing.
Mrs Edmunds was such a pivotal witness that we have come to the conclusion that the deficiencies in the identification procedure and the important omissions from summing up have considerably added to our view that this conviction is not safe.

B. Non-Disclosure of Unused Materials
This ground of appeal concerns 201 statements which were taken by the police in the course of the original enquiries and not discovered until recently. The Criminal Cases Review Commission concluded that the non-disclosure was a breach of the Attorney-General's Guidelines of 1976 (Hansard Vol. 912 No.115) Number 5 which were in place at the time and disadvantaged the Defence.
On 16 July 1981 the solicitors for Gilbert wrote a letter asking for the names and addresses of all persons interviewed during the investigation. On 13 August the DPP sent a letter to the Appellant's then solicitors and the solicitors for Gilbert setting out the names and addresses of 54 "known material witnesses not [to be] called by the prosecution". Gilbert's solicitors replied asking for copies of the statements. On about 19 August Mr John Kay, as he then was, received the brief as junior counsel for the prosecution. Included in the brief were the 54 statements in a bundle entitled "Statements of witnesses not tendered" and a further bundle number 16 entitled "Non material statement" which contained the 201 statements. On September 3 the DPP wrote a letter to Gilbert's solicitors offering them arrangements to read the 54 statements. Mr Kay looked at bundle 16 and made various annotations. He advised in writing on 15 September that:
"There are a number of witnesses in the non-material witnesses file whose evidence might in some circumstances be viewed as material. In the circumstances, I would normally list those witnesses and advise that a further letter be sent detailing their names and addresses to the Defence. However, one of requests made by Messrs. Canter Levin & Company on behalf of Gilbert in their letter dated the 7th August 1981 is to be given access to all the statements of people interviewed and not called. In the particular circumstances of this case, I can see no good reason why that facility should not be provided both as to those considered by the Crown material and those considered not to be material. Although such access will avoid the need to send a further letter and I advise that access should therefore be given to the solicitors. The other solicitors concerned, i.e. Messrs. E. Rex Makin & Co., should also be offered precisely the same facility."
Most regrettably, the existence those 201 statements was never disclosed. Mr Houlder accepts that they should have been disclosed. On the material available before us, it appears that the fault for that lies within the office of the DPP.
Mr Birnbaum submits that any competent defence team would have wished to call the makers of some of those statements and, at the least, to have further investigated matters raised in those statements.
The manner in which a court should approach non-disclosure was considered in Ward [1993] 96 Cr App R 1. Mr Langdale for the prosecution had conceded that there was a number of items of evidence which should have been disclosed but were not. In relation to most of them he argued that the undisclosed evidence may have been material to issues in the case, but that the non-disclosure was relatively insignificant in the context of the case viewed as a whole. He submitted that, therefore, the failure to disclose it did not amount to a "material irregularity". Giving the judgment of the Court, Glidewell L.J. said (at page 23):
"We would emphasise, however, that the scope for the application of Mr. Langdale's proposition is limited to matters which, at the end of the day, can be seen to have been of no real significance. The possibility that this view will ultimately be taken of any particular piece of disclosable evidence should be wholly excluded from the minds of the prosecution when the question of disclosure is being considered. Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence."
Consistent with this approach, we have examined the statements to decide whether "at the end of the day" they can be said to be "of no real significance". In doing so it seems to us that we are now entitled to take into account one undisputed fact- namely that Gilbert stabbed Mr Suffield to death during a robbery of the betting shop. Mr Birnbaum has drawn our attention to a number of the statements many of which he conceded did not meet the test. It is not necessary for us to go through the statements in detail because of our conclusion that at least some cannot be said to be "of no real significance".
The jury heard evidence from Mr Suffield's father that it was his son's normal practice to leave the house between 9.00 and 9.10 am to go to work. Mr and Mrs Jennings, whose statements were read to the jury, ran a newsagents around the corner from the betting shop. As was his practice, Mr Suffield arrived at the newsagents at about 9.20 am on his way to the betting shop to collect newspapers and a bottle of milk. He was unable to collect all the newspapers. Mrs Jennings said that, on the morning in question, his two copies of the Sporting Chronicle had not arrived and "her husband went to town for them and delivered them to the shop later in the morning". According to the trial judge:
"It is a reasonable deduction [Mr Suffield] would arrive at the betting shop somewhere around 9.25 or 9.30 that morning" (11G)."
Mrs Edmunds, who had made her first statement on 14 March, gave evidence that at about 9.33 she saw a struggle outside the betting shop between the man whom she was later to identify as the appellant and a white man, in the presence of another "half-caste". This man was said by the prosecution to be Gilbert, although she did not pick him out on the parade. In her first statement she timed the incident at 9.40-9.45.
Mr Jennings described how he had tried to deliver the two copies of the Sporting Chronicle at about 9.45 am and had obtained no answer. The learned judge referred, in his summing-up, to the reasonable inference that by 9.45 the crime had been committed and those responsible had left the shop (13E-F).
Mr Sims in a statement read to the jury described two "half caste" men running down nearby Maynard street in the direction of Kingsley Road, a direction that Gilbert and Kamara might well have taken to get to addresses with which they were associated. In his first statement, Mr Sims gave the time of this incident as 9.20 but, in his second statement, said that, on reflection, it was about 9.30 or that it may have been 9.45. The learned judge told the jury that the description of one of men given by Mr Sims was consistent with that of Kamara (a proposition which Mr Houlder doubted before us) and "that the direction in which he was running is not at least inconsistent with Mr Kamara being one of the runners" (13C).
Florence McCoy made two statements dated 19 and 31 March 1981 neither of which were disclosed. In the index to the bundle Mr Kay placed a small arrow against her name. In her first statement she said:
"... as I walked past the Coral Betting Office again, I saw John the manager opening the wire gate at the front of the betting office. I'm not sure if he was taking padlocks off the gate. I can't really say. As I walked past I said Hello to him and he said Hello back. I then carried on walking past and walked to the Liver Launderette in Upper Parliament Street. When I got back to the launderette I asked the man and woman in there the time. They said to me it was twenty five to ten. I asked them this because my watch had stopped at 9.10 am that morning.
I recognised that it was John who was opening the betting office because I have been in there on several occasions, and I know him as the manager. I can't be sure what he was wearing on that morning but I think he had a dark jacket on [which he was]. I think he may have worn a tie [which he was]. I'm not sure if he was carrying anything, he may have done, because of the way he was bending down, he may have been carrying something in his right arm."
During the hearing counsel were asked how far the Liver Launderette was from the betting officer. Upper Parliament Street adjoins Lodge Lane, where the betting office was situated. We received no satisfactory answer and shall assume that it was reasonably close by. It follows that, on her evidence, she would have been outside the betting shop at about 9.30. consistent with the evidence of Mrs Jennings.
In her second statement she said that she was almost certain that John "was not carrying any newspapers" and that she did not notice any bottles of milk outside the shop. Because her evidence was unknown to the defence, there was no enquiry as to how it was she had "modified" her original statement from "he may have been carrying something" to being certain that he was not carrying any newspapers. It is worthy of note that Mr Sims had also made a second statement which, as we have shown, varied considerably from the first.
Florence McCoy's evidence was consistent with Mr Suffield having entered the betting shop before he was first attacked. The photographs of the scene inside the betting shop show newspapers and a bottle of milk on a table. Mrs Harrison, who worked in the betting shop gave evidence. She arrived at the betting shop at about 10.05 and shortly afterwards, having become anxious, she called the police. According to her statement, Mr Suffield would place the newspapers and milk on a small table on entering the betting shop and later put the racing papers on the wall in the front part of the shop. It is a reasonable inference that the table to which she was referring was the table in the photo. A Det. Sgt. Hope described in his statement that the newspapers were placed "neatly" there. The evidence of Florence McCoy also finds support in the first version that Gilbert gave in interview. He said (at pages 58-59) that he did not see the deceased arrive and that when they reached the betting shop he was inside. "We went across, pushed the door open and went in". "I went over to the other door that goes to the back where the staff work". "We knocked on the door" and he came to the grill. "I told him to open up or else". "He shit man opened the door". Gilbert then repeated this account (page 61). A few hours later he gave a different account of the manner of entry and repeated that account in the early hours of 17 March in the statement under caution, Ex. 19, with which the jury retired. According to the statement:
".... at 9.00 am we went up to the Lodge Lane, where we hid in the toilet's where we were waiting for the guy to come, at exactly 9.20 am the feller was outside the betting shop, and I shouted to Johnny let's get him now, we ran across the road, and I grabbed hold of the fellow by the neck we were bustling in the doorway. He was elbowing me in stomach to make me let go, and he was also shouting for the police, I then took out the knife I had hid up my sleeve and prodded it into his back and told him to be quiet and open the door, he took the keys out of his pocket and open the door, and Johnny was standing there watching in case anybody came to his aid, we then slipped into the betting shop and made him open the back door while Johnny closed the front door"
It is perhaps difficult to see why he would have lied about the method of entry in his first account of what occurred. It is also worth noting that, on this account, the man involved in the struggle was Gilbert and not Kamara, contrary to what Mrs Edmunds was saying.
During the summing-up a member of the jury asked two very pertinent questions. The judge set out the first question and answered it in this way:
"Members of the jury, I have had a note from one of your number asking the following questions: "Has it been established how the milk and papers for the morning of the murder came to be on the table in photograph `F', if they were that mornings milk and papers, in the usual place". I sought the assistance of Counsel on that and we believe that there is no evidence as to how they came to be on that table or whether that is their usual place or whether indeed it was that mornings milk or papers."
There was no dispute before us that the newspapers on the table must have been that day's newspapers and, as we have seen, there was evidence in Mrs Harrison's statement which tended to support this. Not only did he put the newspapers on a small table but he would, on the day before, have put that day's racing papers on the wall. Mrs Harrison may well not have been asked about this matter. DS Hope's evidence about the papers being placed neatly does not appear to have been before the jury. Without Florence McCoy the grounds for challenging Mrs Edmunds were not strong and it is understandable that the challenge to Mrs Edmunds was not as to whether incident had occurred in the manner and at the time described but whether the appellant was there.
The learned judge went on:
"Secondly, you ask: "If struggle took place on pavement prior to murdered man entering the premises what is happening to milk bottle and papers he collected or did murdered man take them in, put them in usual place and later answer door to the accused."
"Well, members of the jury, again there is no evidence about that and if you think about it is difficult to see how there could be evidence save from the attackers whoever they are. At any rate there is no evidence about it and what we must not ever do is speculate, because you have to decide the case on the evidence that you heard and really I cannot assist you further, because Counsel agree there is no evidence that assists on that. You may think if you knew the answer it would not assist you very much as to the identity of the attackers and I cannot help you further."
If Florence McCoy had been called as a witness, the question could not have been answered in that way. If the jury had heard her evidence coupled with the other evidence about the newspapers and with, possibly, the evidence of Gilbert's change of account, the jury might have reached a different conclusion about the crucial evidence of Mrs Edmunds.
For these reasons, we have no doubt that the failure to disclose her statement makes the appellant's conviction unsafe.
We have already mentioned Mr Jennings' evidence that he tried to deliver the newspapers at 9.45 and how the judge used that evidence to suggest that the attackers must have fled by then. That was important from the point of view of the prosecution because it tied in with the evidence of Mr Sims' second statement, used by the judge in the manner to which we have already referred. Amongst the 201 statements was a statement of James Harding, being a second statement dated 21 April. He described Mr Jennings coming to the betting shop at 10.20 am with the missing papers. Harding said that he kept them. The failure to disclose that statement supports our conclusion that the conviction was unsafe.
Amongst the other witnesses upon whom Mr Birnbaum relies are the Fendick brothers. They were working on the roof of a church in Earle Road not far the betting shop at about 9.50-10.00. They saw two young "half caste" men trotting/running away from the general area of the betting shop. As Mr Birnbaum submits, any competent solicitor would have wished to follow up that information. Their evidence potentially undermined Mr Sims' evidence in that the two men were going in a quite different direction. The non-disclosure of this statement offers further support for our conclusion.
C. The Remand Prisoners
At trial, the prosecution called a number of remand witnesses to give evidence against Kamara. They were: June Bannan, Michael Reardon, Paul McMahon, Thomas Pickett, David Lloyd and Joseph Jones. The CCRC rejected the suggestion by Mr Kamara in his personal representation to them that there were significant differences between the evidence of McMahon and Jones gave at committal and that given at trial suggested that they were offered inducements in exchange for giving evidence against him. So do we. We also emphatically reject the suggestion in the Grounds (at para 144) that:
"The police set out to obtain evidence from as many fellow remand prisoners as possible."
This was a serious allegation of misconduct against the police: It had no foundation or substance and should never have been made. We do not accept the brief analysis of the CCRC at paras 11.52 - .53:
"However, the jury in this case were not advised that the evidence of the remand prisoners should be treated differently to that of any other witnesses."
"The Jury in this case were not advised that the evidence of the remand prisoners should be treated differently to (Sic) that of any of the other witnesses."
During the summing-up of David Lloyd's evidence for instance, having reminded the jury that Mr Lloyd was resident in a mental hospital and did not have a "deep brain", (the Judge) suggested that:
"No doubt, members of the jury, you would not rely on his evidence alone, but you have to put it alongside the other admissions which other prisoners say Kamara made to them."
Paragraph 11.53. From this, the jury may have gained the impression that the evidence of the remand prisoners was strengthened when considered as a whole, rather than requiring a cautious approach both individually and collectively.
This summary is not justified when the evidence is considered more fully, as the judge did in his summing-up.
The judge dealt first with June Bannan, Gilbert's girl friend. Most of her evidence affected Gilbert. The judge again reminded the jury that this was no evidence against the appellant. He reminded them that she had been charged with impeding the prosecution of Gilbert. He then dealt with two aspects which affected Kamara. She said that Gilbert had asked her around the time of the murder whether she had been to bed with the appellant. She had eventually admitted that she had had sexual intercourse with the appellant on one occasion. This was a matter of considerable concern to Gilbert. The judge pointed out that the purpose of this cross-examination on behalf of the appellant was "to suggest that Gilbert may have had some sort of grudge against his friend, John Kamara". June Bannan also related a conversation that the appellant had with her in a prison van on the 18 March, on their way to Risley Remand Centre. She said that the appellant told her that Gilbert had admitted the murder and that he (Kamara) did not know whether Gilbert had done it or not. The appellant then told her that he had been with his brother that day, that he was his "alibi" and complained that Gilbert had "landed him in it". The judge then posed the question for the jury:
"Is it that he was hoping at that time to get together a false alibi via his brother, because on what we have heard now there is no question of his having been with his brother in truth that morning. That is the point you have to consider."
We note that neither the Commission nor leading counsel makes a complaint about this part of the summing up or the manner in which the judge dealt with this witness. Nor could there be.
The argument advanced in respect of the remaining five prisoner witnesses is that the prosecution failed to research fully the character and antecedents with the Criminal Records Office and the Prison authorities. Once the decision was taken to call the prisoners as witnesses these details should have been made available to the defence. In accordance with the decision of this Court in R v Hickey and Robinson (unreported but see summary in Archbold News, Issue 8 1997). We are not persuaded that there is any substance in this criticism. From the material before us we are satisfied that there was sufficient disclosure of criminal records and that if any further information had been required the prosecution would undoubtedly (if asked) have conformed with any reasonable request (and for all we know, they did).
The principal complaint, and one of more substance, is that the judge failed to direct the jury in terms, that they should approach the evidence of these witnesses with caution. It is submitted that in a case depending on a combination of identification evidence and "jail-house confessions", there was a special need for a specific caution before convicting on these types of evidence, both of which are inherently weak. In support, leading counsel referred to R v Prater [1959] 44 CAR 83, where the Court of Appeal held that it was desirable to give a corroboration warning in the case of a witness who might be regarded as having a purpose of his own to serve. We make two observations: First, there was no evidence to suggest that any of the witnesses had such an interest or that he had a motive to lie; second, it was later held in R v Knowlden [1981] 77 CAR 94 at p100, that Prater declared no more than a rule of practice whose application was at the discretion of the trial judge. In R v Beck the Court of Appeal held that a judge should advise the jury to proceed with caution where there is material to suggest a witness's evidence might be tainted by improper motive but added at p.469:
"While we in no way wish to detract from the obligation upon a judge to advise a jury to proceed with caution where there is material to suggest that a witness's evidence may be tainted by an improper motive, and the strength of that advice must vary according to the facts of the case, we cannot accept that there is any obligation to give the accomplice warning with all that entails, when it is common ground that there is no basis for suggesting that the witness is a participant or in any way involved in the crime the subject matter of the trial."
Consequently, we are satisfied that there was no obligation upon the Learned Judge to give a corroboration warning. We observe in passing, that if he had done so, it might well have been to the prejudice of the appellant, the Judge might have pointed to other parts of the evidence which were capable of corroborating parts of the prisoners' evidence.
It is also inherently unlikely that any of these witnesses stood to gain by giving false evidence. Accordingly we do not consider there was any need to give a specific direction as to the need for caution. We accept the submission on behalf of the respondent that the judge did what was in fact required of him and in doing so he used differing formulae to suit the evidence of each witness.
Michael Reardon was held in custody the same time as the appellant and Gilbert were on remand at Risley. His evidence was that Gilbert had told him in the presence of Kamara that he (Gilbert) had been held for the Lodge Lane murder. Gilbert was planning to rob the Bingo hall when he saw the manager opening the betting shop and took the opportunity to push him into the shop and rob him. He then described the attack and robbery in some detail. The appellant commented, "you've shitted and if you know who done it with you, you better tell the police". Gilbert then described their escape, how he had knocked over a young child and went to his cousin's house. The appellant repeated, "You've shitted, you've got no alibi".
Reardon's evidence was that the appellant then gave an account of his movements (consistent with his defence at trial). The appellant apparently believed that he had been "roped into" the murder because he was involved with Gilbert in another matter. Thus Kamara's contribution to this conversation amounted to a clear denial. The only evidence which could possibly be considered contrary to the appellant's interests was his remark to Gilbert that Gilbert had no alibi. The judge dealt with the matter thus (page 44 P):
"Was this, in other words, a man who was repeatedly saying, "I'm all right, I've got an alibi?". If he were was he telling the truth, because it is quite obvious he has no alibi."
Although there was no specific reference to Reardon's criminal record, for reasons already given, we safely infer that this was disclosed to, or was available to the defence and defence counsel would have deployed this material in cross-examination and in his final address to the jury. We can see no fault in the matter in which the judge dealt with this part of this witness's evidence.
Paul McMahon was a convicted prisoner with a 13-year record of offending and was then serving a prison sentence of 18 months for dishonesty. He said that he had travelled to Risley Remand Centre in the same prison van as the appellant (whom he know) and overheard part of the conversation between June Bannan and the appellant. He described how at Risley he had a private conversation with Gilbert, at the end of which Kamara joined them and said to Gilbert "Shut up, you dick head". Later, McMahon and the appellant were together in the hospital wing. The appellant admitted at one point that he had been involved in the murder, but later said that he had been at his Uncle's house at the time of the murder. The appellant told McMahon that Gilbert had come to his Uncle's house while he (the appellant) was waiting for his Giro cheque. He referred to the knife (the murder weapon) having been concealed in Gilbert's sleeve, wrapped in paper. Subsequently, there was a further discussion during which the appellant described how the victim had been tied up and stabbed in the head, chest and face and commented, "you should have seen the state of him" but then added "That's what I was told anyway". Much more significant was McMahon's evidence that the appellant had drawn a map on the back of an envelope to indicate the position of the betting shop. McMahon handed this to the authorities and it became an exhibit at trial (Exhibit 22).
Later, following a conversation with Gilbert alone, McMahon put to the appellant that Gilbert was saying that the appellant was present at the murder. According to McMahon the appellant then said things which indicated a knowledge of the scene of the crime and the crime itself in such detail that could only have been known to a person who had been present. When McMahon queried this Kamara claimed that Gilbert had told him those things. Kamara then claimed an alibi, that he was at a school with his sister and the Headmaster. This was not the alibi the appellant was later to maintain. The thrust of McMahon's evidence against the appellant was that "a number of times Kamara was saying he was not involved and a number of times he was saying he was". This account was carefully noted by the Judge from which he was able to remind the jury how, in cross-examination, McMahon had admitted "I have made a practice of deceiving people", and that he admitted he wanted to go to prison for the shortest possible time. He reminded the jury of suggestions made on behalf of Kamara by Mr Houlker QC:
"The suggestion ... is that this man had a motive to lie and get Kamara into it and the motive was to try and get his sentence down. Well, he has been sentenced so why is he going on saying it? Mr Houlker says perhaps he is hoping to get parole. Members of the jury, by all means take this into account, but you may ask yourselves if this is a motive why is he being too mealy-mouthed? Why is he not saying that Kamara made a total confession? Why is he saying that most of the time Kamara denied it, but every now and again he forgot and let slip things which seemed to indicate he was present? Members of the jury, that is comment which you must consider."
The comment is unexceptional and the jury could not have been left in any doubt that they had to approach the evidence of McMahon with particular caution even though they had not received a specific direction to do so.
Thomas Pickett was serving 5-years for rape. The conversation between this witness and the appellant amounted to a denial and a suggestion as to why Gilbert should lie about him mainly, because "Kamara took his girls off him". The Judge properly reminded the jury of Gilbert's suggested motive for lying. In the light of this evidence we see no need for any further direction to have been given in regard to this witness.
David Lloyd had been placed on probation with a condition of treatment in a mental hospital for taking and driving away motor cars and stealing from one of them. On an earlier occasion he had been convicted of an offence of dishonesty, placed on probation on condition that he resided at a mental home for treatment. He said that he had met the appellant in the hospital wing and he had asked the appellant if he had "done the murder?" and Kamara had said "yes". He never asked him any more about it. The Judge dealt with this evidence thus (49 G):
".... you must of course take into account the fact that this man has criminal convictions and that twice there has been a condition of his probation that he resides in a hospital for treatment - mental treatment - Mr Houlder says to you that you really cannot for a minute rely in his evidence. We, you saw him ... and you may think he is obviously a simple fellow. He has not got a deep brain. Both the confessions he spoke of were challenged and you have got to say, "was he shaken by the cross-examination ....?" Is he capable of inventing those confessions? Is he possibly mistake .... bearing in mind he is in a mental hospital? No doubt, members of the jury, you would not rely on his evidence if it stood alone, but you have to put it alongside the other admissions which other prisoners say Kamara said to them."
We consider that there is nothing wrong with this direction in the light of the directions the judge gave the jury about the individual reliability of each prisoner. It was a wholly appropriate direction. Moreover, we cannot share the Commission's view that from this part of the summing-up the jury may have gained the impression that the evidence of the remand prisoners was strengthened when considered as a whole, rather than requiring a cautious approach both individually and collectively. The overall effect of the manner in which the judge dealt with this witness's evidence was to deprive it of any weight or probative value.
At a later stage of the summing-up the judge turned to the evidence of the last prisoner, Joseph Jones. He had been arrested by police officers on offences of living on immoral earnings and was sent to Risley Remand Centre. He gave evidence of a conversation with the appellant on 14 May 1981 in the course of which he alleged that the appellant confessed that he had been involved in the murder, and that he had taken just over £100.00 from the betting shop. Gilbert and he had left most of the money because it was blood stained. Kamara described Gilbert's eyes "popping out like a psychopath's". Jones asked pointedly, "you were with that Gilbert, weren't you?", and he said "yes, he grassed me up". Subsequently, according to Jones, the appellant asked about a man named Bernie, whom he said he had seen in the Clock Public House the night before the murder. The appellant apparently believed that Bernie might give him an alibi.
In cross-examination Jones revealed matters which seriously undermined the credibility of this account. Jones agreed that he had only written to the police some weeks after the alleged conversations. He said that he had discovered in June 1981 that the appellant was responsible for raping his (Jones) wife some time before but maintained that at the time he contacted the police he was not aware of this. His evidence was that he only found out when he overheard the appellant laughing about rape and realised that he was referring to his wife. He agreed that he had shouted abuse and threatened the appellant in Risley. It was soon after this that he contacted the police. Not surprisingly the judge commented heavily (56 F):
"Well now, members of the jury, obviously he was admitting there, was Jones, that he had a grudge against Kamara and that led me to ask him some questions to which he answered as follows: "I am telling the truth about the things he told me about the murder. I would not say anything out of bias." Members of the jury, in view of the admitted grudge you must scrutinise his evidence with particular care. If you think he may have made it up because of the grudge then you must ignore his evidence ....."
The trenchant terms in which this direction is given gives the lie to the criticism that the judge failed to give a direction as to the special need for caution.
However, the judge went on to remind the jury of a point made by leading counsel for the Crown that when asked questions in chief about the confessions the evidence had "to be almost literally dragged out of him". He continued:
"What the prosecution says to you is, is that reluctance consistent with a man who has only come here in order to work off a grudge? If that were his motive, says Miss Campbell, would he not have been only too delighted to put the boot in and there would be no necessity to drag the evidence out of him? That is a point for you to consider."
Mr Birnbaum submitted that this direction immediately neutralised the earlier direction and suggested that the way that Jones had given evidence did not in fact suggest that he was motivated by a grudge.
We accept that the evidence of Jones was important and fell to be considered alongside the evidence of all the other remand prisoners who the appellant suggested were lying. We do not accept the criticism levelled by leading counsel. Both comments were legitimate and the latter did not negate nor neutralise the former. The jury must again have been struck by the coincidence of the detail which accorded with the testimony of other witnesses, notably McMahon. However, we bear in mind that the possibility of collusion cannot be entirely ruled out as all these witnesses were held on remand at the same remand centre. A point which, we are obliged to say, was not made by the Learned Judge.
Accordingly, we do not consider that any legitimate criticism can be levelled against the Learned Judge in the manner that he dealt with the prisoners' evidence. Our assessment of this Ground of Appeal would not lend support to the contention that the conviction was unsafe.
Before leaving this aspect we turn to Ground I which asserts that there was a misdirection as concerning the evidence of Reardon. In interviews with the police Kamara had consistently denied any involvement in the robbery of the betting shop. However, he was alleged to have admitted that he and Gilbert had considered robbing the Bingo hall which was next to the betting shop and known as the "pivvi". Reardon gave evidence of a conversation he had had with Gilbert and Kamara together. He alleged that Gilbert had admitted the robbery and murder whilst the appellant had denied it claiming that he had an alibi. According to Reardon, Gilbert admitted that he had planned to rob the "pivvi" and had been waiting to do so when he saw the victim opening the betting shop. The judge directed the jury that this admission by Gilbert was "relevant" to the case against the appellant. He said:
"Of course, the relevance of the `pivvi' the Bingo Hall, you will recall, is that Kamara admits or admitted to the police that there was a plan between him and Gilbert to rob the bingo hall."
We accept Mr Birnbaum's submission that this was a misdirection. Gilbert had made no allegation to Reardon against the appellant whilst Kamara had said nothing which amounted to an acceptance of Gilbert's account. Indeed he had denied his guilt to Reardon, claiming that he had an alibi. The appellant did not admit to the police that there was a plan between him and Gilbert to rob a bingo hall. Unfortunately, it would appear that this part of the police evidence was not challenged by Leading Counsel for the Defence nor when this direction had been given did he seek to correct the situation or suggest that he may have overlooked the need to challenge it. The Learned Judge continued:
"Let me stress this to you. Do not approach it by saying, "Well, he admits he and Gilbert were planning a robbery together, that is the sort of man that Kamara is, therefore, we will convict him." I say do not do that, because that is not good enough in our law. In our courts in this country people are not convicted of crimes merely because they are shown to have a tendency to commit crimes and the way the prosecution put it is not that. The way they put it is to say, "Look this man admits he was planning a robbery, not anywhere or with anyone, but with Gilbert at that particular bingo hall right next door to the betting office". He has admitted that he had been taken up there by Gilbert to have a look at it and the prosecution say that that gets him very close indeed to the betting shop and they say that the chance was taken by him and by Gilbert instead to rob the next-door betting shop when the manager of it appeared. That is the way the prosecution put it and approached it that way and that is reasonable if it appeals to you, but do not, as I say convict him because he is a man who has a tendency to rob - that would not be fair or in accordance with our law."
This was a blemish on an otherwise careful and meticulous summing-up. We give some weight to the point when considering whether the conviction can still be said to be safe.
D. The Other Relevant Grounds
We have an abiding sense of unease about the events which followed Gilbert's change of plea to guilty of murder and robbery and the effect these events may have had upon the jury. It is not suggested that this event alone would be sufficient to undermine Kamara's conviction. The first question we have to consider is whether the conviction can be said to be unsafe by the virtue of the fact that following Gilbert's change of plea the jury were not discharged and a retrial ordered of Kamara alone. This point was not specifically taken before the Court of Appeal in 1983 or, if it was, it found no favour with the Court. Mr Birnbaum in his grounds and skeleton argument submitted that it was a grave error of judgement on the part of Leading Counsel not to ask for a retrial. Alternatively, even if he was justified in not seeking a retrial, he should have insisted that the statement of Gilbert be removed from the jury and that there be no further reference to it save to warn them to put it out of their minds. The decision not to seek a retrial must have been taken in defiance of, or without proper instructions, or when all promptings of reason and good sense pointed the other way. In such circumstances this Court would be justified in setting aside the verdict as being unsafe. He referred to R v Clinton [1993] 97 CAR 320, where the Court of Appeal drew the distinction between the conduct of counsel and its effect on the trial. Rougier J, giving the Judgment of the Court, said at p326:
"It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of Counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the subsection."
The defence team was clearly at a disadvantage by this turn of events. The statement had been adduced in evidence and there was admissible evidence that during his police interviews it had been shown to the appellant and he had declined to read it or acknowledge it as genuine. Mr O'Leary gave evidence before this Court and he told us that the question of seeking a retrial was discussed between Leading and Junior Counsel and himself but in the absence of the appellant. Mr O'Leary may have had reservations and favoured a retrial but Leading Counsel's views prevailed. Leading Counsel may well have taken the view that the case had gone as well as it could, that there had already been two aborted trials and that he could be confident that the trial judge would give the appropriate direction to the jury. Moreover, there was a chance that the jury would remember that Gilbert had acknowledged that he was the only one to inflict the terrible violence on the victim and might take the view that the appellant was not a party to murder. There was a real chance that they might at worst find him guilty of manslaughter on the basis of a joint venture which had gone wrong, or, at best, convict Kamara of robbery only.
We consider it would be wrong to stigmatise Counsel's decision as gross incompetence or that the promptings of reason and good sense pointed the other way. Following the reasoning in Clinton, we have to consider the effect of that decision in the light of the circumstances then prevailing and what happened when the trial resumed. Kamara gave evidence that he was not present and presented a flimsy and inconsistent alibi. When he addressed the jury, Leading Counsel specifically referred to the statement and in particular that part which supported his argument that if, contrary to the defence primary case, Kamara was present he should only be convicted of robbery.
In 1983, Waller LJ, took the view that Leading Counsel was entitled to refer to the statement. He said:
"The first question we have to consider is whether counsel for Kamara was entitled to pray in aid the contents of the statement in order to help his client. In our judgment he was so entitled. The situation here was precisely the same evidentially as if Gilbert had not gone into the witness box and had not pleaded guilty. It would be unfair if Kamara could not in those circumstances make use of the favourable parts of the statement, for example, if he admitted being engaged in robbery, but denied being a party to murder. The statement is in evidence, albeit only admissible against the co-defendant, but counsel for the other defendant must be free to use evidence called by the prosecution which is favourable to his client, even though if it were against him it would not be admissible. Once counsel had made the point in his favour, then the judge was obliged to deal with it in his summing-up."
Thus it came about that the jury still had copies of the statement in their possession and when they retired they took them with them. By this stage the judge had given the obligatory admissibility direction (to which no exception can be taken) but when dealing with Leading Counsel's references he said:
"My only comment is, why should one believe Gilbert's account of the part which his companion played in the betting shop raid if one is not to believe Gilbert as to who the companion was. Because that is the rather difficult road upon which Mr Houlker has embarked. He is really saying to you, disbelieve Gilbert when he says it is Kamara who was with him, but believe him as to what part he says Kamara played. There you are, members of the jury, it is for you to reflect upon that comment, but you heard how Mr Houlker put that to you and you will consider his statement."
Mr Birnbaum is critical of this passage but we can find no justification. It was not inappropriate for such comment to be made in all the circumstances and any counsel of experience must have taken the likelihood of such a comment being made into account. The learned judge continued with a passage which was clearly favourable to the appellant:
"But please do bear in mind that basically the defence case is as it always has been, Mr Kamara was not there, you should acquit him of everything. It is only if you are satisfied that he was there that you then go on to consider Mr Houlker's suggestion that you can find him guilty of the second count, robbery, but on the first count, not guilty of murder, either acquit him, or at the worst find him guilty of manslaughter."
Our concern arises out of further analysis of the situation which had developed. The jury, almost inevitably, must have pondered the issue as to what to believe in the statement. They had seen Gilbert plead guilty and no doubt inferred that he had done so on the basis of his admissions clearly set out in writing. It is quite likely that they took the view that the reason why he had changed his plea at that stage was because he was not prepared to continue to give evidence on oath incriminating Kamara by adhering to the statement that Kamara was present. The jury would not have appreciated that by his change of plea he had avoided cross-examination on behalf of Kamara to suggest that Gilbert's implication of Kamara was untrue or unreliable.
There was ample material that could have been used to discredit Gilbert's statement. On the evening of 16 March, after initial denials, Gilbert admitted committing the robbery with the appellant and stabbing the deceased, but gave details that were inconsistent with the prosecution case. Later the same evening he retracted the admission. At midnight, he reverted to the admissions but changed some details, advancing a version consistent with the prosecution case at trial and implicating the appellant. However, on the night of the 17 March, he stated that he had falsely accused the appellant. In a further statement made on 15 May 1981, Gilbert again denied involvement and implicated Roy Forrester and Neville Smith. If Kamara's counsel had pursued this line, it would in all probability have been picked up by the judge in his summing-up. These matters were hardly referred to in the summing-up at all. Moreover, if he had combined to assert that the incriminating parts of the statement were true this would inevitably have triggered an `accomplice' direction in the summing-up. Accordingly the jury did not have the opportunity to consider the veracity of the parts incriminating Kamara in the light of counsel's challenge or judicial assistance.
Thus, in summary, the defence of Kamara was disadvantaged by an accumulation of factors: the change of plea, the retention of the statement by the jury, leading counsel's reference to and reliance upon part of it, the denial of the opportunity to cross-examine Gilbert and the absence of the benefit of appropriate directions. Accordingly, we take the view that there is a real risk that the jury might have given undue credence to the statement that this might have contributed significantly to their verdict. We harbour a real suspicion that the effect of this turn of events is of sufficient substance to be put in the balance with the other doubts we have already expressed.
Conclusion:
By virtue of the accumulation or aggregation of the doubts we have expressed and reasons for them we have come to the firm conclusion that the verdicts of guilty of murder and robbery can no longer be considered safe and that they should both be quashed and the life-sentence and sentence of six years imprisonment concurrent should be set aside.