England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Monday, 27th June 2005

1. THE VICE PRESIDENT: On 27th April 2005, at Liverpool Crown Court, following a trial before His Honour Judge Gilmour QC, these two applicants were convicted of possessing a firearm with intent to cause fear of violence. A further count of possessing a firearm when prohibited was ordered to remain on the file, on the usual terms: that was count 2, in relation to Richard Joyce and count 3, in relation to James Joyce. So far as Richard Joyce is concerned, there was also an offence of driving whilst disqualified which was remitted to the Magistrates' Court, for a plea of not guilty to be entered. Richard Joyce was sentenced to 7 years' imprisonment and James Joyce to 8 years' imprisonment. Prior to the trial, Richard Joyce had failed to answer bail on 28th February 2005. He was tried and sentenced in his absence. So far as this Court knows he is still at large.
2. Both applicants apply for an extension of time of eight days in which to seek leave to appeal against conviction and sentence. We grant the extension of time.
3. The applications have been referred to the Full Court by the Registrar, as this appears to be one of the first, if not the first, cases to come before this Court in relation to the new hearsay provisions of the Criminal Justice Act 2003, to which, in a moment, we shall come.
4. The facts were these. On 23rd July 2004, in broad daylight, in Kirby, two undisguised men approached the home of the complainant, Darcy, in a black motorcar. One, holding a loaded shotgun, got out of the car and fired three or four times at the windows of the house before returning to the car. The men then drove away. It was the prosecution case that the applicant, James Joyce, fired the shots and the applicant, Richard Joyce, was the driver of the car. The allegation was that both had, in the car, been in possession of the shotgun with intent to cause fear of violence.
5. The prosecution relied on witness statements which had been made by Darcy, by a woman called Natalie Rogers and by Peter Wilson. In each of those statements, each of those three witnesses told the police that (in the case of Darcy and Wilson) the applicants were the two involved. In the case of Miss Rogers, she identified only James Joyce.
6. Subsequently, those statements were retracted by all three witnesses. Each gave evidence before the jury that their initial statement was wrong, and they were mistaken when identifying of the applicants. The judge, exercising his new powers under section 119 of the Criminal Justice Act 2003, admitted the witness statements made by each of the witnesses.
7. The prosecution also relied on a statement by Darcy and his evidence that both the applicants had been part of a gang of four who had come to his front door, two or three weeks before the offence with which the two applicants were, charged and, on that occasion, James Joyce had punched him. The prosecution also relied, so far as James Joyce was concerned, on the "no comment" interviews which he had given.
8. The case for Richard Joyce, in his absence, was to put the prosecution to proof. The defence for James Joyce was that he had been incorrectly identified by the three witnesses in their statements. He had been at home, on his own, on 23rd July, and he relied on the evidence of the three witnesses that they were mistaken in their initial identifications. The issue was whether the retracted witness statements and other supporting evidence sufficed to prove the guilt of the applicants of this offence.
9. Darcy, who was treated as hostile, gave evidence that, some two weeks before, he had been assaulted by four men, including the two applicants. This was because James Joyce claimed that one of Darcy's sons, Mark, owed him money. In a statement made, it is to be noted, on the day of the incident, 23rd July 2004, Darcy told the police he had been outside with his grandson. His son, Brian, was sitting in a motorcar nearby with another man. A black car arrived, with its windows down. Richard Joyce was sitting in the front passenger seat. Someone shouted: "Do you want a straightener?" James Joyce got out, came into full view, carrying a shotgun and pointing it towards Darcy and Brian's car. The Darcy family all ran inside. There was a loud bang as the gun was discharged. The windows in the house were smashed. Darcy telephoned the police. Then, together with another son, Peter, they armed themselves with baseball bats and chased James Joyce, who dived headfirst into the black car through the window. James Joyce then reloaded the gun. Darcy and his son ran back into the house. Further shots were fired and glass smashed. James Joyce then smashed the car windows and bodywork of his son's car, using the butt of the shotgun. Darcy added that he had known James Joyce and his family for years.
10. In the witness-box, Darcy said he had tried to retract his statement of 23rd July on 25th November, when he made a statement to solicitors that he had been mistaken as to his identification. He had, he said, seen the true perpetrators in a car in Bewley Drive, and had then realised the mistake he had made. In cross-examination, he relied on his statement of 25th November and claimed that he did not know how his son's car had come to be damaged or how his windows had come to be broken.
11. Natalie Rogers gave evidence that she had originally, in a statement likewise made on the day of the incident, 23rd July, identified James Joyce as being the gunman and she had seen him damaging the car. She had not seen a second male. Some two or three weeks later, she saw another man in the area, who looked exactly like James Joyce. Knowing that James Joyce was in custody at that time, she went to Kirby police station and told the police she had made a mistake about the identification. She too knew the Joyce family: Richard Joyce was a friend of her brothers.
12. Peter Wilson, like Darcy, was treated as hostile. He gave evidence that, on the day in question, he had been working at the Darcys. He had known that family for more than 18 years. He was present and witnessed the shooting but, he claimed, he could not identify the gunman. He too had made a statement on 23rd July, saying Richard Joyce had been driving the car and James Joyce, the passenger who got out, discharged the loaded shotgun into the front window of the house. He said in evidence that he was wrong to identify James Joyce as discharging gun. He had not seen the driver of the car, but he had heard other people shouting "Richard Joyce".
13. In interview, as we have said, James Joyce made no comment in response to all the questions he was asked. Therefore, it is apparent that he failed to mention the fact, as he was to claim in the course of his trial, that he had been at home all day on the occasion of the shooting.
14. A submission was made, at the close of the prosecution case, on behalf of James Joyce, that the identification evidence was so weak that there was no case to answer, in the light of Turnbull. Alternatively, it was submitted, on behalf of both defendants, the evidence provided by the retracted witness statements was unconvincing, to such an extent that, in accordance with his powers under section 125 of the Criminal Justice Act 2003, the judge ought to direct an acquittal. The judge ruled that the case should be left to the jury, as the identifications were made in broad daylight, by people who knew the applicant's. Those identifications did not become weak because they were subsequently retracted. The jury had to consider why the witnesses had changed their accounts and could come to the view that they were lying in court and that it was their original identification which was correct.
15. James Joyce gave evidence. He said that he had always lived in Kirby. Darcy was known to his family but he did not know Natalie Rogers or Peter Wilson and had never spoken to either them. He had been at home on his own at the time of the incident. He had not made any comment in interview because he thought that was the safest option.
16. The focus of this application for leave to appeal against conviction, is on the provisions in Part 11 Chapter 2 of the Criminal Justice Act 2003, in particular, sections 114, 119 and 125. By Chapter 2 Parliament modernised the hearsay rule. The reforms enshrined in that legislation are derived from the Law Commission's Report No 245, "Evidence in Criminal Proceedings, Hearsay and Related Topics" which was presented to Parliament as long ago as June 1997 and was followed by a government white paper, "Justice For All" in 2002.
17. The provisions relevant to this appeal are, first, section 114(1)(a) which is in these terms:

"In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if-

(a) any provision of this Chapter or any other statutory provision makes it admissible."

Section 119(1) is in these terms:

"If in criminal proceedings a person gives oral evidence and-

(a) he admits making a previous inconsistent statement, or

(b) a previous inconsistent statement made by him is proved by virtue of section 3, 4, or 5 of the Criminal Procedure Act 1865.

the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible."

Section 125(1) is in these terms:

"If on the defendant's trial before a judge and jury for an offence the court is satisfied at any time after the close of the prosecution that-

(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and.

(b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury."

18. On behalf of both applicants, Mr Menary QC, who did not appear at trial, submits, first, that the judge should have directed not guilty verdicts at the close of the prosecution case, either under section 125(1) or, in the light of R v Turnbull 63 Cr App R(S) 132 (at 138, final paragraph) or possibly, under R v Galbraith 73 Cr App R(S) 124 at 127, paragraph 2, because the quality of the evidence was poor, unsupported and so tenuous that no jury could properly convict on the basis of it. He accepts that the judge was entitled to treat Darcy and Wilson as hostile, so as to permit proof of their previous inconsistent statements and he accepts that Miss Rogers admitted making her previous inconsistent statement. Accordingly, he concedes that the provisions of section 119, for admissibility, were fulfilled and, in consequence, the contents of the written statements were capable of supporting a conviction.
19. It is submitted, and we accept, that section 125 should not be regarded as requiring a higher standard than Galbraith. But it provides, in accordance with the Law Commission's recommendation in paragraphs 11.31 and 11.32 of their report, an additional safety valve obliging a judge to direct an acquittal where the previous statements are particularly unpersuasive. It is emphasised in paragraph 9 of Mr Menary's skeleton written submissions and in his oral argument before us that this was an identification case, based solely on the challenged evidence of three eyewitnesses, who could only support each other if they were reliable.
20. He submits that they could not be regarded as reliable, in that they had each contradicted their earlier written statement, by their oral evidence. Furthermore, as he rightly points out, none of them claimed to have been intimidated by, or on behalf of, the defendants into changing their evidence.
21. Those matters, he submits and we accept, are relevant to the judge's consideration as to whether the evidence was "so unconvincing" in the terms of section 125(1)(b). In his ruling, the judge expressly had regard to the surrounding circumstances and it seems to us that it is highly unlikely that he overlooked the specific matters to which Mr Menary drew attention.
22. It has to be borne in mind, as it seems to us, that the circumstances of this offence were terrifying. That is a matter which the judge was entitled to take into consideration, (as indeed in due course were the jury) when considering, whether the earlier statements were so unconvincing that an acquittal should be directed.
23. Mr Menary also points out, correctly, that the three witnesses were not wholly independent of each other. Darcy and Wilson were friends and Miss Rogers was a neighbour of Darcy's. Furthermore, there was no evidence as to the circumstances in which either the original accusatory statements, or the later retractions came to be made. So, Mr Menary submits, there is the possibility that all three witnesses may have been honestly confused or mistaken in their initial statements. Accordingly, Mr Menary submits that there was, absent any further investigation by anybody as to how the change of accounts came to be made, inadequate material for the judge to reach a conclusion as to whether the initial statements were unconvincing or not.
24. Mr Menary accepts that the initial written statements on their face provide strong, cogent, evidence against each of the applicants, but, he says, the judge had to have regard, not just to that, but also to all the surrounding circumstances. We take all these matters into account.
25. Having seen and heard the three witnesses, the judge was well placed (certainly better placed than the members of this Court) to assess the quality of the evidence which they gave before the jury and to decide whether their original statements merited consideration by the jury or were so unconvincing as to require a directed acquittal.
26. On the material before us, we would have been astonished if the judge had reached a different conclusion than he did. The shootings took place in broad daylight, at midday, in summer. The defendants were known to all three witnesses, who had unobstructed views of them, over a significant period of time, at least in the case of Darcy and Miss Rogers. In the circumstances, the suggestion that all three witnesses were initially confused or mistaken in the statements which they made on the day of these events strains credulity.
27. In the light of the new statutory provisions in relation to hearsay, in our judgment, it would have been an affront to the administration of justice, on a trial for offences based on this terrifying conduct, if the jury had not been permitted by the judge to evaluate, separately and together, the quality of the three witnesses' oral evidence and to be able to rely, if they thought fit, on the terms of their original statements. The jury would, no doubt, have been assisted in this regard, by, among other matters, Darcy's evidence that, although he was no longer sure of his identification, he did not know how his windows had come to be broken and his son's car damaged. Accordingly, Mr Menary's first submission seems to us to be unarguable.
28. His second submission is critical of the summing-up. It is said that the judge gave insufficiently clear and robust warnings, first, as to the challenged identification evidence. That complaint, as it seems to us, cannot survive the passage in the summing-up between pages 7E and 10C which, subject to one point, includes an impeccable direction in accordance with Turnbull. We accept Mr Menary's submission that it would have been better if the judge had referred to the possibility of mistakes being made by witnesses who purport to recognise rather than merely identify a particular person. But, in our judgment, the summing-up in the passage which we have identified, read as a whole, is a sufficient and proper direction as to the need for caution without significant flaw. Secondly, it is said that, in regard to the three witnesses two of whom were treated as hostile, because they were manifestly unreliable and self-contradictory, further directions were necessary as to the burden and standard of proof. In our judgment, the passages in the summing-up at pages 4A to D, 9H to 10C, 10F to 11B and 11C to 13B, which it is unnecessary to rehearse save in relation to the last passage, from which, in a moment, we shall quote, were clear, comprehensive, fair and accurate directions as to the burden and standard of proof and as to how the jury should approach their decision as to which of the two versions of events they accepted.
29. We reject the further submission that the passage at 11C to E was a misdirection. The direction which the judge there gave was as to the three options open to the jury, in the light of the prosecution case. First, they might accept the police statement by each of the witnesses, if sure that it was true and accurate. Secondly, they might accept what each witness said in his or her evidence, if sure that he or she was telling the truth.
30. The judge went on:

"The third possibility is, given the inconsistencies between the earlier statements and their evidence in court yesterday, you may take the view you cannot rely on any of that witness' evidence and you may choose to ignore completely what that witness has said."

It is said that that passage, in conjunction with a reference at page 10E to Darcy and Wilson being treated as hostile witnesses:

"...that is a witness who has in effect, changed sides",

gave rise to a misdirection. We do not agree. The use of the phrase "changed sides", seems to us to be no more than a convenient shorthand for what had essentially happened in this particular case, so far as all three witnesses are concerned. In laying out, as he did, in the passage, at page 11, the options which the jury had when confronted by these differing accounts, the judge, as it seems to us, properly directed the jury on this aspect of the case. Because the circumstances of this case were so striking, it does not seem to us that it provides a good vehicle in which to give general guidance as to the form which a summing-up should take, when hearsay evidence is admitted under the new statutory provisions. Necessarily, judges must tailor their summing-up to the circumstances of the particular case. It will, for example, be essential, when the hearsay relied on is the product of multiple hearsay, to give a most careful direction that that is so in order that juries may be in a position properly to evaluate the weight which they ought to give to such hearsay evidence.

31. That, however, is not the situation which arises in the present case. It is apparent from what we have already said that the contents of the hearsay statements admitted in this case were the account solely of the maker of the statement. The judge's summing up was appropriate in the light of these considerations, as it seems to us, there is no arguable ground of appeal against the safety of these convictions and leave is accordingly refused.
32. With regard to sentence, Mr Menary accepts that this was, in relation to each applicant, a very serious offence, requiring a significant custodial term. His submission is that 7 and 8 years respectively were too long in the light of the personal mitigation. Richard Joyce, who received 7 years, was 25 at the time of the offence, was the older of the two and did not discharge the firearm. He has a substantial number of previous convictions, between 1994 and 2003, many for driving offences, but he has only one conviction related to violence, and that is for assault occasioning actual bodily harm in 1997. The longest sentence which he has previously served is 4 months.
33. James Joyce was 21 at the time of the offence. He is now 22. He has seven previous convictions, mostly for theft and drugs offences, between February 2000 and November 2003. His only previous relevant conviction was in May 2005 when, on a plea of guilty, he was granted a conditional discharge for possessing a bladed article in a public place. His longest previous custody was in October 2001, when he was sentenced to 15 months youth custody for possessing a Class A drug with intent to supply.
34. The Court has carefully considered Mr Menary's submissions. The learned sentencing judge was particularly well placed to be alert to the prevalence of gun crime in Liverpool and, as he put it, at page 3C of his sentencing remarks:

"The lesson needs to go out loud and clear throughout Merseyside that if young men such as you arm yourselves with weapons and fire them in a public place the courts will pass severe sentences."

We bear in mind that the offence of which both applicants were convicted was of possessing a firearm with intent to cause fear of violence. But the circumstances of that offence were extremely grave, and we have already sufficiently identified them.

35. In our judgment, it is not arguable that either the 7 year sentence passed on Richard Joyce, or the 8 year passed on James Joyce was manifestly excessive. Accordingly, the applications in relation to sentence are refused.