England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM JUDGE HYAM

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd May 2003

Lord Justice Scott Baker:

1. The appellant, Terence Robert Smith, appeals against his conviction for murder before Judge Hyam and a jury in the Crown Court at Norwich on 13 October 1997. There was a co-defendant, Harry John Groves, who was convicted of the same offence on the same occasion. At the time of the offence the appellant was 35 and Groves was 17.

The basic facts

2. The victim was Simon Shannon. His body was found at his home, 2, Groom Park, Clacton-on-Sea on the morning of Saturday 6 May 1995. He had been strangled, stamped upon and had his throat cut. There were multiple injuries. He, like a number of others connected with the case, was a practising homosexual. The appellant was bisexual, a fact that he admitted in interview. It was the Crown's case that the appellant and Groves went to Shannon's house on the night of 2/3 May 1995, obtained access and together killed him. The appellant's case was that he was not present, a contention supported by the fact that there was no forensic evidence to connect him with the crime. The Crown's case as to the time of death was supported by evidence that milk was delivered on Wednesday 3 May about 6 am and was still uncollected when there was a further delivery on Friday 5 May. When the milk still had not been collected the following morning and the milkman saw blood splashes on looking through the letterbox, the police were called. There was no sign of forcible entry and the body of Shannon was flat on its back in the lounge.

Courtman's account

3. Paul Courtman was a crucial prosecution witness. He lived at Beach Way, Jaywick, Clacton with Steven Sparkes. They had been together for ten or eleven years. Courtman had known the deceased for two years and saw him regularly. Their relationship was platonic. He also knew the appellant whom he had met in the Summer of 1994. He regarded him as a friend. Their relationship at that time was platonic, although this changed to a degree in about July 1995. He met Groves a couple of months after he had met the appellant and saw him regularly but not as often as the appellant. Their relationship was platonic.
4. During the first week in May 1995 the appellant's wife went on holiday to Bognor Regis. On 2 May Courtman spent the evening drinking at his home with the appellant and Groves. Sparkes was there too. Sparkes and the appellant were drinking heavily, Groves more modestly. Groves was not happy and was talking about Shannon and homosexuality. The appellant would have known about Shannon's inclinations but Groves probably not as he had never met him. Groves mentioned his unhappy childhood and that his father was a pervert. He appeared angry. The conversation about Shannon included a reference to a pornographic book and some photographs that he possessed. Courtman said they seemed undecided whether Shannon was a pervert. Groves was unhappy at the prospect that he was, but the appellant did not seem so affected. The conversation lasted into the early hours of Wednesday 3 May. Groves and the appellant left about 2.15am saying they were going home. Between 4.30 and 5am they were stopped by the police on the way back to Jaywick. The Crown's case was that the murder had been committed in the intervening period and that they had remained at Shannon's house for some time after they had killed him. They told the police when they were stopped that they had been seeing some old tarts in London, which was a lie.
5. On Thursday 4 May about 8.30am Groves visited Courtman and they sat in the Garden. He told Courtman that something terrible had happened and Courtman had to ask him several times what he meant. He then told him that when they had left his house on the Wednesday morning they had gone to Shannon's and killed him. Groves said that when they arrived one of them said they had an urgent message from 'Paul' (Courtman) and the appellant asked to use the lavatory. Whilst he was away Shannon showed Groves some pictures which Groves found offensive. The appellant then appeared wearing surgical gloves and nodded towards Groves. The appellant placed a wire around Shannon's neck and pressed a knee into his back. Shannon appeared to wave goodbye. Groves then went crazy, picked up a blunt stanley knife and cut him. He did so with about five strokes and then the appellant told him to stop as he was already dead. He fell to the floor and Groves jumped up and down on his chest, kicking him until the appellant pulled him off. Groves told Courtman a glass top table was knocked over during the event.
6. At this point the appellant arrived at Courtman's house and he too explained what had happened. He was concerned about the possibility of fingerprints being found because one of his gloves had split. Also, the police had stopped them shortly after their departure. Courtman only half believed them but they were very solemn and appeared frightened. Courtman agreed to keep it quiet and even suggested that no one else be told, especially Sparkes, since he was mentally unstable and had been receiving psychiatric treatment since the age of fifteen. Courtman carried on as if nothing had happened and went ahead with a barbecue that he had planned.
7. Courtman saw Groves and the appellant again on the Friday morning. Groves, in particular, was still worried about the possibility of fingerprints being found. Courtman suggested the door should be wiped clean with bleach and then pretended to go and do it. There was some talk about an alibi and what they would say if their fingerprints or other evidence was found connecting them with the scene.
8. Courtman had had oral sex with the appellant on three occasions but found it daunting because he was married. This occurred in the period between the murder and the arrests. Courtman said the appellant and Groves told Crossland (of whom we shall have a good deal more to say in a moment) and Sparkes that the three of them were in a pact.

Sparkes's account

9. Sparkes confirmed that he and Courtman had been living together for many years. It was a homosexual relationship but had fallen off since Crossland had come on the scene. On 2 May, at a drinking session, there was a discussion about whether various people were homosexual. Courtman implied Shannon possessed pictures of young boys. Groves said he would like to meet him. Courtman tried to dissuade him, because it was so late. Sparkes, who was quite drunk, fell asleep on the floor. When he awoke about 2am the appellant and Groves had gone. He could remember, despite the drink he had had, Groves saying "I wouldn't mind going round." On the Sunday he learned about the murder. Courtman told him what had happened and he was distraught. The appellant told Sparkes he had not told him about the murder because he did not think he would be able to cope with it. He counted out six people who knew about it. He was told the appellant had strangled him and Groves had cut his throat and that if everyone kept quiet things would be all right.
10. Over the next few days the appellant came and went. At one point the murder was mentioned on the news and the appellant said, "he deserved it, he was a nonce." They spoke about the murder more than once. Groves mentioned cutting his throat and the appellant demonstrated with his hands that he had strangled him. Sparkes did not tell the police anything at that stage because he feared for his and Courtman's safety. Groves, he said, showed remorse and concern for what he had done.

The appellant's account

11. The appellant, Courtman, Sparkes and Groves were arrested and interviewed on 11 September 1995 and the days following. On 14 September the appellant and Groves were charged with Shannon's murder. The appellant gave evidence at the trial. His defence was that he had played no part in any attack. He was not present at the scene. The killer was either Courtman and/or a friend of his. Groves was lying because he was frightened of Courtman's friend. He had spent the Tuesday evening at Courtman's and left with Groves between 11.30pm and 1.30am on the Wednesday morning. They walked along the seafront and when they arrived at this house he had a beer and Groves a cup of tea. He awoke about 4.30am having urinated in the chair. He decided to visit his wife and set off in the car. On the way they were stopped by the police. He could not explain why he had lied to the police. He did not have a good word to say about the deceased, who he knew was a homosexual, but he had not killed him. Courtman, on the other hand, had a motive because he was jealous over Shannon's attraction to Crossland. Sparkes was an ineffectual individual who was in Courtman's pocket and only said what Courtman told him to say.

Groves' account

12. Groves too gave evidence in his own defence. His case was that he, Sparkes and the appellant had all been at Courtman's house. The other three were all drunk. There was a conversation, but he could not remember what it was about. About 1am the appellant said he was leaving and said to Groves, "you cunt, come with me." Groves went with him but did not know what he had done wrong. He was tired and wanted to go home, but the appellant issued directions to an address in Groom Park. Groves suggested that he should wait in the car but the appellant held a knife to his throat and said, "don't fucking argue with me, your coming in." He was only seventeen at the time. He was sober. The appellant knocked on the door and said he had got a message from Paul (Courtman). Shannon invited them both in. There followed a vicious attack by the appellant on Shannon. Groves, who took no part in it, was told by the appellant he would be killed if he moved. Groves described the assault in some detail. It involved putting a wire around Shannon's throat from behind and saying, "try this for size". The appellant then kicked and stamped on him, produced a knife and cut him in the throat region about three times. Groves asked if he could leave, but the appellant refused. The appellant put his arms under Shannon's upper body and dragged him into the living room coming out about 30 seconds later. Groves was throughout no more than a bystander. He asked the appellant why he had done it and the appellant said it was because Shannon had made a remark about Adam (Crossland) being beautiful which made him angry.
13. They left and discussed what the police were to be told. After they had left they were stopped by the police. He agreed the appellant told him to keep his mouth shut and say they had been to London to pick up a couple of tarts. He was in a daze but he gave his correct name to the officers. Before he went home, the appellant threatened him saying, "remember your mum and your family will be dealt with in the same way as Shannon." He could not explain the wounds to Shannon's abdomen which, according to the pathologist's evidence, had been caused about 30 minutes after death. Questioned about the timing, he denied they had been in the deceased's home for a substantial period of time.
14. On the following day, Thursday 4 May, he visited Courtman and told him what he had been told to say. He said he had been the one who had cut Shannon's throat but gave no more details. Courtman gave the impression he knew more and seemed to know what was going on. He even seemed to glory in it.

The pathologists' evidence

15. The pathological evidence was that there were multiple injuries including a ligature compression of the neck applied from behind. There was injury to the liver that was most likely to have been caused by stamping. There were no defensive injuries and although it was not a hundred percent certain the deceased had not been concussed and all the injuries caused by one person, it was highly likely that two or more people were involved.

Crossland

16. As will have become apparent, Courtman and Sparkes were key witnesses for the Crown because of their evidence of the confessions that the appellant and Groves had made to them. Potentially important evidence was also due to be given by Adam Crossland. The trial was first listed to be heard in February 1997 but was adjourned because Groves tried to commit suicide. Following this, he was assessed by two psychiatrists whose reports were provided to those representing the appellant well before the trial in September. Crossland had made a witness statement on 13 September 1995 similar to that of Courtman and Sparkes. In it he said he had known Courtman for just over two years. He was a homosexual but he did not think Sparkes was. He met Shannon who fancied him and would sit close to him and touch him. He liked the appellant and they got on well together. The appellant became very upset about certain things Shannon said about Crossland and threatened to kill him. When Shannon eventually accepted Crossland did not want anything to do with him he turned his attention to a boy of ten or eleven which made the appellant even angrier.
17. On Saturday 6 May Crossland was at Courtman's when he saw on the television that Shannon had been murdered. He told Courtman he thought Groves and the appellant had done it and Courtman gave Crossland the impression he knew who had committed the murder. Crossland kept pressing Courtman who eventually said the two of them had come round to his house and told him they had done it. A week later on the Saturday he saw the appellant leaning on the sea wall on the steps by the post office at the end of Beach Way. During the ensuing conversation the appellant said: "Shannon won't be bothering you any more," that he was dead and that he and Groves had done it. The appellant then described the killing in considerable detail. After the killing, the two of them had gone to the appellant's home, had a shower and put their clothes into black plastic sacks. On Wednesday 3 May the appellant had given Crossland a lift. Crossland had difficulty in getting into the car because there were two plastic bin liners one on top of the other. The appellant told Crossland he had done the killing for him. There was another occasion in Courtman's garden with the appellant, Groves, Sparkes and Courtman when the appellant said the police would be around soon and everyone promised not to say anything.
18. Crossland made a further statement on 21 September 1995 in which he referred to a sexual relationship with Courtman which he had been too embarrassed to mention earlier. He also said that the appellant had told him where he had disposed of the knife and the gloves used in the killing, and also that there was a pact of silence between the appellant, Groves and himself which the appellant had said was marked by tattoos on the appellant and himself.
19. Before the adjourned trial, however, he indicated he was put under pressure by Courtland to give false evidence. On 14 August 1997 he wrote to the Crown Prosecution Service expressing his reluctance to give evidence. In the letter which he said he had been told by his solicitor to write he said he did not want to be a prosecution witness and go to court. He continued:

"I don't feel I can cope with it. I have problems with my memory and did and said many stupid things under pressure because I was told by Mr Courtman and it was all over two years ago. Anything I have to say is second or third hand hearsay and I don't want to be charged with perjury. Also, I could damage your case. I have broken away from Mr Courtman's control now and I am trying to come to terms with what has happened to me."

20. On 9 September 1997 Crossland made a lengthy statement in which he alleged sexual abuse by Courtman since the age of thirteen. At the time of the murder he had just passed his sixteenth birthday. He described in the statement how Courtman had moved to Somerset sometime after the murder and that he kept in touch by telephone before running away from home and going to live with Courtman and Sparkes in Courtman's flat in Williton in Somerset. In August 1996 Crossland met a girl with whom he formed a relationship. Contact with Courtman became less and eventually ceased altogether. Crossland did not deal in this statement with events relating to the murder of Shannon. The prosecution decided not to call Crossland and he was made available to the defence.
21. This statement of 9 September 1997 was available to the defence at the trial, but the prosecution declined to accede to a defence request to re-interview Crossland with a view to establishing his new account of the core events that he had witnessed. There was, however, no reason why the defence should not have done so and indeed he may well have been interviewed by the solicitors who were then acting for the appellant.
22. On 12 September 1997 Courtman gave evidence at the trial. Two days earlier on 10 September, counsel for Groves and the appellant both raised with the judge the question of calling Crossland. The judge ruled that the Crown need not call him and nor was it necessary to postpone the decision until such time as the prosecution had interviewed Crossland to ascertain what he meant when he said he could damage the prosecution's case. The judge took the view that if Crossland was called it was highly likely he would have to be treated as hostile and that Counsel for the Crown was fully entitled in the exercise of his discretion, as described by Schiemann L.J. in R v Brown and Brown [1997] 1CAR 112, 114B, to decide not to call him but make him available to the defence.
23. Kennedy L.J. in R v Russell-Jones [1995] 1Cr App R 538 helpfully set out seven principles for dealing with the Crown's obligations to call witnesses. These are:

"(1) Generally speaking the prosecution must have at court all the witnesses named on the back of the indictment (nowadays those whose statements have been served as witnesses on whom the prosecution intend to relay), if the defence want those witnesses to attend. In deciding which statements to serve, the prosecution has an unfettered discretion, but must normally disclose material statements not served.

(2) The prosecution enjoy a discretion whether to call, or tender, any witness it requires to attend, but the discretion is not unfettered.

(3) The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial.

(4) The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness's evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say "incredible", then his evidence cannot help the jury assess the overall picture of the crucial events; hence it is not unfair that he should not be called.

(5) It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a particular witness has to say is at best marginal.

(6) The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one which is less favourable to the prosecution case than that of the others.

(7) A prosecutor properly excising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown's own case. No sensible rule of justice could require such a stance to be taken."

He went on to say:

"Plainly, what we have said should not be regarded as a lexicon or rule book to cover all cases in which a prosecutor is called upon to exercise this discretion. There may be special situations to which we have not adverted; and in every case, it is important to emphasise, the judgment to be made is primarily that of the prosecutor, and, in general the court will only interfere with it if he has gone wrong in principle."

24. In our view the judge was entirely correct in his ruling. We reject the appellant's submission that the Crown could not say whether Crossland was worthy of belief without taking any further statement from him. We are, however, bound to say that we are somewhat surprised that the prosecution did not take a further statement from him following his letter of the 14 August 1997 to ascertain why he might damage the prosecution's case and what he had to say about events that related directly to the killing. Had they done so, it is likely that they would have been given the account we have heard and which was in our judgment plainly not credible.
25. At the trial the appellant's case was that the murderer was Courtman or a friend of his and that Groves was lying because he was afraid of him. It was put to Courtman that he was not a witness of truth and that he had been having a sexual relationship with Crossland since Crossland was thirteen (as Crossland had said in the statement he had recently made). Courtman denied this, saying it only began shortly before Crossland's sixteen birthday.
26. Mr Blaxland Q.C. for the appellant relies on the fact that after the trial Courtman was prosecuted on the basis of the truth and reliability of Crossland's allegations. Thus, he argues, the prosecution accepted Courtman was lying on this issue. In the event, however, pleas were entered by Courtman that were consistent with his admissions at the murder trial and the one plea of guilty was accepted by the Crown. In our judgment there is no substance in the suggestion that the Crown was blowing hot and cold as to the credibility of Courtman.
27. The core of the appellant's ground of appeal with regard to Crossland is that if the jury had heard his evidence doubt would have been thrown on the reliability of Courtman's account and the conviction is therefore unsafe.
28. We heard further evidence from Crossland de bene esse. The thrust of his fresh evidence is to be found in his affidavit of 19 March 2001and three subsequent statements. In summary what he told us was this. His statement of September 1997 about his relationship with Courtman was true. The appellant had never confessed to him and he told the police what Courtman had told him to say. He was obsessed with Courtman at the time and would have done anything he had told him to. What he had said about disposal of the knife and gloves and the clothes in the bin bags was all untrue. Nor was it true that the appellant had asked him for oral sex; Courtman had told him to say this.
29. The story Courtman told him to tell was that the appellant had committed the murder with Groves. He was not told to say he had heard Groves admitting it as well. He said no one had encouraged him to write the letter saying he did not want to go to court. We note, however, that in the letter he uses the expressions not readily used by a sixteen year old. Courtman did not tell him to say when and where the killing had taken place and he never had any conversation with the appellant by the sea wall as he described in his first statement.
30. Each member of the court was entirely satisfied that Crossland was not telling us the truth. He was, quite simply, not a credible witness. The Court noted in particular the detail in which in his first statement he had described such matters as talking to the appellant by the sea wall by the end of Beach Way when the appellant told him that Shannon would not be bothering him any more and also Crossland's detailed account of the disposal of various items.
31. Had Crossland given evidence for the Crown at the trial the probability is that he would have been treated as hostile and cross examined on his earlier statements. Had he been called by the defence, a course which for obvious reasons the defence chose not to take, he would have been cross examined on his earlier accounts. In either case it would have been disastrous for the appellant's case.
32. In our judgment, the prosecutor's judgment was correctly exercised in this case and the judge was correct in the ruling that he gave. Crossland was plainly not credible, a matter emphasised to this Court by his evidence in the course of this appeal.

The reliability of Groves

33. The second main line of attack on the safety of the conviction relates to the evidence of Groves. In this regard the appellant seeks to rely on the fresh evidence of Dr Chesterman who was asked to review the notes and records relating to Groves. His report is dated 27 September 2002. In the event there was no need to call Dr Chesterman because the Crown do not dispute the substance of his evidence. In summary the appellant's case is that if the jury had known what is now known about Groves and what he subsequently told various psychiatrists and others as evidenced through their reports, they would not have convicted the appellant. Put shortly, Mr Blaxland's point is that if the jury had known that Groves had a personality disorder and had engaged in a fantasy life since the age of thirteen, they may have put his evidence on one side when considering the case against the appellant. The key issue, he submits, is whether what Groves had to say about Smith's involvement was reliable.
34. There is a good deal of material that postdates the conviction. In it Groves gives a number of accounts. Mr Spence, for the Crown, submits that the appellant cannot pick and choose those parts that might help his case. At one time, in an affidavit, Groves sought to take sole responsibility for the murder, but evidence emerged that this may have been in exchange for financial reward. The appellant intended to call further evidence from Groves himself to establish that he had committed the murder alone. Indeed, when the appellant was given permission to appeal, the single judge directed Groves to attend the hearing before the full court. But this course was abandoned for obvious reasons. Letters written by Groves from Gartree prison to the appellant's wife and father were intercepted. The letter to the appellant's wife included the following passage:

"I don't think that both me and Terry will get out of this sentence on appeal. But if Terry's Dad is prepared to do something for me in the next two weeks I will make a statement to Terry's solicitor saying that he wasn't even there when the murder happened. I will take full responsibility for what happened even though you and me both know full well Terry is as guilty as I am."

35. It has to be kept in mind that it is in the interests of a convicted killer who committed the offence to take responsibility for it as this is likely to assist him in eventually obtaining parole.
36. The pathologist's evidence was strongly in favour of more than one person having participated in the killing. The new material about Groves's state of mind and what he said subsequently to psychiatrists and others would have reinforced the jury's view that Groves was involved in the killing. Groves's evidence that, although present he was not involved, was of course rejected at the trial. Even if one accepts the truth of what he was telling the psychiatrists about having suffered fantasies in the past, it goes to his involvement and not to the identity of the other killer. It is, in our judgment, complete speculation to say that the jury may have taken a different view about the appellant's involvement. There is no reason why they should. There is nothing that would have impinged on his assertion that the other man present was the appellant. He rejected the suggestion that Courtman could have killed Shannon and in interview the appellant rejected the suggestion that Courtman could have killed anybody.
37. Furthermore, the state of mental health of Groves was not something that was entirely outwith the jury's knowledge (see reports attached to the Crown's skeleton argument) and some of the medical evidence was available at the time of the trial, including the reports following the suicide attempt. In our judgment nothing emerging about the appellant through the evidence of Dr Chesterman in any way threatens the safety of the conviction. In short it is not material.

Sergeant Stansbury

38. Detective Sergeant Stansbury was the officer in the case. During the trial he was cross examined about the fact that Courtman and Sparks shared a room before they gave evidence at the trial and during the course of the trial. No attempt was made to separate them, even after Courtman had been cross- examined. Stansbury was responsible for witnesses. Furthermore, Courtman and Sparkes were left together in a room over lunch at court after Courtman had completed his evidence and while Sparkes was in the course of giving his.
39. It is also said that Stansbury knew that Crossland was visiting Courtman and Sparkes in Somerset and that he was staying with Courtman in breach of an injunction. The suggestion is that Stansbury was conniving at the breach of the injunction. Counsel for the prosecution depended on Stansbury providing him with reliable information as a basis on which to make the decision whether to call Crossland and what steps to take with regard to him. Mr Blaxland argues that Sergeant Stansbury may have ceased to act objectively and thus prejudiced counsel's decision.
40. Mr Spence's response is that prosecuting counsel took a view quite independently of Stansbury. Courtman was in the witness programme and there was a witness support service at Norwich. All this was canvassed in front of the jury during Stansbury's cross examination. Furthermore Stansbury was not the subject of disciplinary action of any kind.
41. In our view nothing of consequence arises out of the Stansbury point either with regard to the decision not to call Crossland or as to Courtman and Sparkes putting their heads together.

Misdirection

42. The appellant complains that the judge misdirected the jury when he referred to a passage in the appellant's interview in which the police officer put to the appellant something from Crossland's statement. The judge made a mistake; he should not have identified where it came from. In this passage Crossland was saying the appellant threatened to kill the deceased. There was no such evidence to this effect because, of course, Crossland had not given evidence. This was a plain misdirection, but the judge corrected it and in our judgment there is nothing in the point. The judge told the jury the following day that if they remembered the passage (and he specifically did not refer to the detail) it was not evidence and they should not act on it.

Good Character

43. The complaint is that there was positive evidence of good character from a number of witnesses that the defence failed, whether through negligence or inadvertence, to call. It is submitted that this was a significant irregularity. Some of these witnesses said that the appellant behaved in a gentle manner in their presence. Had the evidence been submitted to the Crown it is likely, so it is said, to have been agreed.
44. The Crown's response is that the appellant had the benefit of a good character direction from the judge. Good character has to be looked at in the context of the case as a whole and against the background of the kind of activities that the appellant admitted, which included smoking cannabis and dishonesty with regard to social security benefits. He was not as virtuous has his submissions on this point would suggest at face value. Also, it is quite possible that if any of these witnesses had been called, cross examination could have been damaging to the appellant's case. We do no think this point impinges in anyway on the safety of the conviction.

Conclusion

45. We have considered carefully all of the appellant's points both individually and cumulatively but are satisfied that the conviction is safe and accordingly this appeal must be dismissed.