England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 23 June 2006

1. LORD JUSTICE MOSES: This is an appeal by all three of these appellants against their conviction for murder, and by Sheldon Robinson and Marcia Grant against their conviction of wounding with intent. The convictions took place in May 2005 at the Central Criminal Court. The appeal is brought pursuant to leave given by the Full Court.
2. The issue in this appeal centres on the terms of the directions given by the judge in the summing-up in relation to joint enterprise, and the unforeseen consequences of an attack with weapons. It raises the not unusual factor in the summing-up of the need to tailor the directions to the particular factual issues of the case.
3. The facts, so far as they are relevant to the issue, relate to the murder of a man called Ramazan Kocak in Hackney in July 2004. The principal cause of his death was a stab wound to his stomach. It was accepted, at least for the purposes of the trial and this appeal, that the stab wound was caused by a kitchen knife wielded by a man known as JJ. But the victim, at about the same time, suffered also from a fracture to the head caused by a baseball bat. That, so the pathologist concluded, was a more than minimal cause of death. When asked to put a percentage on it, possibly unfortunately, as we shall later relate, he said that the knife wound had contributed 95 per cent to the death and the fractured skull 5 per cent.
4. The circumstances in which these injuries were caused were triggered by a confrontation between the appellant, Wayne Maturine, and the victim, Kocak. The altercation had started with a dispute between them when Maturine said that his car had been damaged by a paint spray from an aerosol used by Kocak nearby. Kocak had smashed the windows of a car belonging to Maturine's mother-in-law with a metal tool. Maturine called the police, but unfortunately also called his wife to ask for assistance from one of his sons. When his wife could not find that son another young son had mobilised others to come to the scene. That was a man who is to face trial shortly. It is unnecessary to name him today.
5. There arrived in the car four people - JJ, who was subsequently to wield the knife; the appellant, Sheldon Robinson, and Marcia Grant, also related to the appellant, Maturine. The car had in its boot at least one baseball bat and, as we have said, JJ had armed himself with a knife. However, Maturine had stayed at the scene before the others arrived and so it is not surprising that part of his defence was that he was unaware, until later when the baseball bat was used in an attack, of the presence of the weapons in the car.
6. There was evidence of Maturine wielding the baseball bat. One of the Turkish witnesses present at the site, said he had wielded a baseball bat, and Dogan, another witness, described how some of those, who arrived at the scene, had attacked the victim with baseball bats, including the appellant Wayne Maturine, whom he described as delivering several hard blows to the head and body. That too was testified to by another Turkish man, Nas. So there was evidence of these appellants attacking Kocak and certainly the men using baseball bats. It was said, although she denied it, that Marcia Grant had also been involved in passing round the baseball bat.
7. Another victim of violence was a man called Ali Azimi. He had been stabbed in the leg by the man, JJ, wielding his knife, but he had also seen Maturine with a baseball bat in his hand and gave evidence that one of the triggers of the violence was Marcia Grant slapping the victim in the face. Other witnesses also gave evidence as to the use of the bat.
8. For the purposes of this appeal, what is important is the nature of the defence of these appellants. Maturine said that he was never aware of a knife, let alone of the knife being used, and said at the time that Kocak was stabbed by JJ he had turned his attention to the car of the victim, which he sought to damage. He said he did not strike Kocak with a baseball bat; he had used a baseball bat once but only in self-defence against one of the witnesses, the Turkish man called Nas. He said that never intended any weapon to be used to injure the victim nor to kill him.
9. The appellant, Robinson, accepted that he knew that there was a baseball bat in the boot of the car in which he had arrived. He said he saw Maturine hit Kocak with the baseball bat and Kocak hitting Maturine with a hammer. In order to defend Maturine, he admitted that he had struck Kocak with a wrench two or three times, but there was no evidence that that had caused any material injury. He said the son who had come to the scene with the bat had hit Kocak with a broken baseball bat, causing him to fall on the floor, but it was only then that he realised that Kocak had been killed by a stab with a knife, the presence of which he was unaware.
10. Marcia Grant had accepted that she had gone in the car with the others but had not intended that there should be any trouble. She had not participated in violence herself. She had not seen Maturine use a baseball bat and, importantly, had indicated her disassociation from the violence because once she saw JJ with a knife in his hand she had told him to put it away. She had therefore neither intended that any weapon should be used nor appreciated that it would be.
11. The central ground of appeal advanced on behalf of all three appellants is that the judge's summing-up was so confused as to the issues in the case relating to joint enterprise as to lead to the conclusion that the verdicts are unsafe. This submission was advanced with cogency and fairness by Mr Burke QC on behalf of all three appellants. He had only appeared on behalf of one of them at the trial.
12. The central cause of what is alleged to be confusion in the directions given to the jury lay in the cause of death. It had been argued by one of the counsel on behalf of one of the appellants (who is not now acting for any of them) that the only cause of death was the knife wielded by JJ. He contended that it had not been proved that the cause of death was also a fracture of the skull caused by a baseball bat. We shall have more to say on that issue later. There was, as we have already recalled, evidence that both weapons were more than minimal causes of death to the victim, Kocak, but nevertheless the judge left that issue of causation to the jury.
13. If the knife was the only cause of death the prosecution had to prove, in relation to a defendant, that either he or she intended that the knife should be used in the attack to cause grievous bodily harm or death or, if not, that he or she foresaw that the knife might be used for that purpose but nonetheless took part or continued to take part in the attack on the victim. Such an intention, or absent intention, foresight, required proof of knowledge of the knife as a necessary, but not a sufficient, ingredient of the offence.
14. If the jury were sure that the knife was not the only cause of death but the baseball bat was also a more than a minimal cause, then the Crown could also prove murder by proving in relation to a defendant that if he or she intended the baseball bat should be used in the attack to cause really serious bodily harm or death, or, if not, foresaw that the baseball bat might be used for that purpose but nonetheless took part or continued to take part, then he or she was guilty of murder. Such an intention, or absent intention, foresight, required proof of knowledge of the baseball bat as a necessary, but not sufficient, ingredient of the offence. An adaptation of that instruction was necessary to cover the alternative absence of murderous intention or foresight so as to amount to manslaughter.
15. In those circumstances, it was necessary to start the directions with a focus on the issue of the cause of death and then tailor the directions to the particular weapon which the jury concluded caused death if, but only if, the jury was not sure that both were the cause of death. If the jury was not sure in relation to any defendants of the intention to use any weapon, or foresight that any weapon might be used, then the jury should have been told to acquit of murder since no issue arose as to whether or not there was a fundamental difference between an attack with weapons or without, or a fundamental difference between an attack with a baseball bat, or a knife.
16. In order to appreciate properly the context of the summing-up, it is necessary to recall the indictment. Before the summing-up the indictment was amended to include count 2, which alleged causing grievous bodily harm with intent and in the particulars alleged that all three unlawfully and maliciously caused grievous bodily harm to the victim with intent to do him grievous bodily harm. This count related only to the baseball bat, and arose only in the following circumstances: if the jury was sure that the death was caused only by the knife, but not sure the defendant intended the use of the knife or foresaw that it might be used, then that defendant would be not guilty of murder, but he or she could be guilty on count 2, if the jury was sure that he or she participated in the attack on the victim with a baseball bat with the necessary intention. Thus the jury was clearly directed by the structure of the indictment towards the need to consider which of the weapons caused the death, if not both, and the consequences if the jury was not sure that the defendant intended that the death-causing weapon should be used, or did not foresee its use.
17. The judge correctly instructed the jury as to murder, manslaughter and, importantly, as to count 2 and the need for including count 2 in the allegations made against these defendants. The judge said:

"If you took the view that it was only the stabbing that killed him, then Count 2 deals with the baseball bat and, so far as Robinson is concerned, of course, with the wrench. ... Count 2 only applies, really, if you find that the sole effective cause of death is the stabbing and you are then looking at those who used the baseball bat, but were not involved in the stabbing."

18. Later in this part of the judgment the judge returned to the question of which weapon caused the death. He instructed the jury specifically to consider the two weapons separately. He dealt (between pages 18 and 19) with the principal, in other words the person who wielded the knife or the baseball bat, if the baseball bat was also a cause of death. He then turned one page later to the issue of joint enterprise. It is there that the summing-up is open to criticism. The judge dwelt at unnecessary length on the meaning of joint enterprise by reference to examples. We appreciate that this is often done, no doubt prompted by the examples given in the Judicial Studies Board specimen directions. But such invocation of examples is by no means necessary in every case. A reference to examples often only deflects the jury from the real issues in the instant case. In this case it was quite unnecessary to start talking about burglars or a fight in a pub. But the judge did correctly deal with the meaning of joint intention and participation and the defence of withdrawal or disassociation from the fight. He then turned to the issue of whether the killer was doing something which went beyond the intention of another defendant or defendants. He pointed out to the jury that foresight, coupled with continuing participation, is sufficient to prove murder. He correctly pointed out that in that context the jury had to consider separately on the one hand the injury, the severing of an artery by the knife and, on the other hand, a smashing of the skull with the baseball bat because, as he said:

"... you might find that if one person used a knife to kill and the others did not know that that was a real possibility. In that case, such a person would not, of course, be responsible for what was done by the knife, because it would be something totally outside any plan that that defendant had joined in or any reasonable expectation he might have of the results of the fight."

Unfortunately, he then went on to draw an incorrect antithesis. He said:

"But on the other hand, if you are sure that the defendant did realise that one of the group might commit grievous bodily harm or murder, the law is that by taking part in the assault with that knowledge, that person is accepting the risk that someone in his group would act that way, so he adopts those acts and he becomes responsible for them by joining in, expecting them to happen, or realising that they might happen."

19. The judge should have said that if a defendant did realise, as a real possibility, that the killer might use the weapon which in fact caused the death, even though that defendant had no intention to cause death by that weapon, then that defendant too would be guilty. But in that part of his summing-up the judge incorrectly failed to make any reference to any weapon at all. But very shortly afterwards he did return to the weapons and it is on that passage that the appeal focuses, because the judge repeatedly used the expression "knife or baseball bat".
20. Those passages, it is contended, suggest that a defendant could be guilty of murder if he realises one of the two weapons, baseball bat or knife, might be used even though only the knife caused the death. In reliance on that essential submission, our attention was drawn to two pages of the summing-up and a further page of the summing-up after a short adjournment, where the judge said:

"If one of the gang has a knife or a baseball bat and in the course of the fight uses it to kill, that person is guilty of murder if the prosecution proves he intended to kill or to cause really serious harm, but in addition -- and that is what this case is about for you and these defendants -- in addition, each other member of the group who takes part in the fight will be guilty of murder if, but only if, when they took part: one, they knew the knife or bat was likely to be used; and two, they shared the intention to do really serious harm, or realised that someone might use the bat or knife with that intention and, realising that, nevertheless carried on taking part and giving support.

On the other hand, if the prosecution prove against the defendant that that defendant participated in the fight and knew that there was a knife or a bat, as appropriate, that someone intended to use to cause injury short of death or really serious harm, then joining in a fight where you know there is a likelihood of injury and where you realised that that likelihood may be real -- if that injury results, unfortunately and sadly, in death, that is manslaughter, and it is manslaughter on the part of everyone who took part with that intention or that realisation.

It is right that you have to consider whether if a person knows as a result of what is happening before the incident, either on the telephone or in the calls that I will detail some of later, or in relation to the second and third defendants what happened on the street outside Hyacinth's house, or what was said in the car, or at the fight from the appearance on the scene of the knife and the bat -- if any given defendant from any of those causes realised that there was a real possibility that violence was going to involve the use of the knife or the bat and in that knowledge continues to take part in the violence, then you have to consider whether you are sure that the person realised that the use of the bat or knife must have carried the real risk of harm, or risk of death or serious harm, I should say -- the real risk of death or serious harm, or just a risk of lesser hurt."

Later on he said:

"... just to sum up what I have been saying to you about this not easy area of joint enterprise: if you are sure that some of the group set out the attack Kocak and that he was killed by stabbing and having his skull fractured, and you think the defendant may be telling you the truth if he says he had no idea that anyone would use a knife or a bat, then you have to consider whether the use of the knife or a bat -- whichever it is you are thinking of at the moment -- is fundamentally different from anything that that defendant realised might happen.

If you are sure it is not fundamentally different, and you are satisfied that the actual person who does the injury is guilty of murder, then the defendant who joins in, realising that that might happen, is also guilty of murder, providing you are sure that he realised that there might be an assault, intending to kill or cause really serious bodily harm.

If he realised that the actual user of the weapon might cause an injury short of really serious harm, then he would be guilty of manslaughter, but if the act was fundamentally different, or may have been fundamentally different from anything he expected or realised might happen, then he is not guilty of either murder or manslaughter."

21. In our view these passages must be read in the context of the summing-up as a whole. The judge had already directed attention to the issue of which weapon caused the death and, in his reference to count 2 and to the need to consider weapons separately, to the issue of the consequences of that separate consideration in relation to joint enterprise, if only the knife was the cause of death. It must, in our view, therefore, have been sufficiently clear to the jury that when the judge was speaking of knife or bat, the judge was referring to whichever weapon the jury concluded caused the death. Indeed, that that was what the judge was indicating is demonstrated by the use of the words "as appropriate" at page 25B.
22. We reject the suggestion that the directions might have left the jury with the impression that it did not matter whether the defendant whose case they were considering foresaw use of the bat or the knife in circumstances where the knife was the sole cause of death. That submission cannot stand with the judge's earlier directions as to the need to consider which weapon caused the death, if it was not both, or to count 2 or his reference to the need to consider the weapons separately in the context of his directions as to the issue of joint enterprise.
23. There is, however, a further point, namely that the summing-up was so rambling and unfocused as to leave a doubt as to whether the jury was properly instructed as to the issues at all. We emphasise that a muddled and unfocused summing-up may well lead to the conclusion that a trial was unfair and the verdict unsafe. As we have said, the judge was wrong in this case to refer to other examples of joint enterprise; it merely deflected the jury from the issues in this case; there was no need to do so. Further, he was wrong to deal with the question of fundamental difference between the use of weapons in an attack and an attack without weapons. It was beyond argument that if a defendant did not foresee the use of weapons at all that defendant was not guilty of murder, so there was no need to leave the issue to the jury of whether an attack without weapons is fundamentally different from an attack with weapons. Nor was there any need to leave to the jury the issue of whether a knife attack was fundamentally different from an attack with a baseball bat. It was beyond reasonable argument that it was. There was no obligation on this judge to refer to issues that did not arise on the particular facts of the case.
24. Later in the summing-up the judge referred correctly to the medical issue. He reminded the jury of the evidence of the doctor which was not contradicted by any other pathologist. The pathologist had told the jury that the head injuries were a significant matter in terms of the cause of death, and the witness had explained why that was so to the jury in terms that were readily understandable by anybody, a pathologist or not, namely, that the disability in the brain would have adversely affected the ability of the injured man to cope with the stabbing injury.
25. The summing-up would have been better structured had the judge started with the issue of the cause of death because if, as was almost inevitable, the jury had taken the view that both knife and baseball bat caused the death, then there was no need to worry at all about knowledge or intention or foresight as to one, as opposed to both weapons.
26. As we have said, the summing-up erred in referring to yet further examples. The summing-up should have required the jury to stick to the factual issues in the instant case. Moreover, it should have more clearly pointed out to the jury that the issue of foresight did not arise if the jury was sure as to the joint intention of any particular defendant to use the weapon which caused death. Foresight only arose if the prosecution had failed to show such an intention.
27. We have been concerned as to this summing-up because we have been concerned whether it failed sufficiently to instruct the jury and focus the minds on the legal issues which arose on the facts of the case. But despite that concern we are, with the assistance of counsel on both sides, satisfied that it did. The summing-up was not such as to lead to an unfair trial or to trigger doubts as to the safety of the verdict. The prosecution, in support of their submissions, sought to interpret the acquittal of the appellant, Maturine, on count 3, namely in relation to the stabbing of the witness Azimi as showing that the jury did indeed understand the issues and the necessity of considering knowledge of the particular weapon which caused death. But we agree with Mr Burke QC that that acquittal does not supply any sufficient indication as to whether the jury properly applied the law in the instant case. We prefer to rely upon the terms of the directions we have identified.
28. There was a further issue as to Marcia Grant's defence that she had withdrawn from the attack and had never wished to play any part in it, as demonstrated by the words she had used after the man JJ stabbed Azimi "What", she said, "did you do that for? Put it away", referring to the knife. This was an important point for the defence, demonstrating her desire to withdraw and her absence of knowledge. But, as this court has frequently emphasised, there is no obligation on the judge to repeat arguments on which the defence rely. He did refer to the evidence in the context of her case and we reject that ground.
29. For the reasons we have given, therefore, we reject the conclusion that the verdicts were unsafe or that the summing-up failed properly to direct the jury.
30. However we cannot leave these appeals without a few further observations. Neither this court nor the Judicial Studies Board can be or should be prescriptive as to how judges sum up cases. It is trite to observe that the directions depend on the facts. But they do indeed. In the instant case the evidence of the pathologist was overwhelming. No pathologist was called to rebut it. It would have been perverse for any jury to reach any conclusion other than that both the knife and the baseball bat were causes, in the sense the law requires, of death. Both were more than minimal causes. The resolution of the issue into the percentages was probably unhelpful. The pathologist said that both weapons were more than minimal causes of death. The jury did not have to be doctors when hearing of the fractures of the skull and the effect that that would have on the ability of a victim to cope with bleeding to appreciate that evidence. The judge was entitled - and should have been much more robust in doing so - to instruct the jury as to whether there really was any live issue as to the cause of death. In reality there was none. Both weapons caused the death. So the problems as to which weapon did cause the death and joint participation in use of that weapon did not in reality arise. The jury should have been dealing with real and not fanciful possibilities, and a fair trial and due process did not require the judge to deal with fanciful issues raised merely in argument by one of the defendants, merely because the defendant had tested the evidence in cross-examination.
31. Counsel raised the issue in cross-examination and achieved very little. Had the judge instructed the jury that the overwhelming evidence was that both weapons caused the death, this court would have supported him, notwithstanding any criticism as to withdrawing factual issues from the jury. This is particularly important in relation to expert evidence where in reality there is no sustainable dispute. Judges ought not to be diffident about directing a jury in strong terms as to real issues as opposed to merely fanciful ones. The mere fact that a defendant raises an issue does not mean that there is anything in it or that the judge is debarred from making a strong comment about it.
32. In the instant case, had the judge done so and then properly tailored his summing-up, he could have dealt but shortly with the issue of joint participation in the use of one weapon, since the evidence pointed overwhelmingly to both weapons being the cause of death. Terse reference to knowledge of but one weapon, namely the baseball bat, was all that was required. This issue cried out for discussion, both during pre-trial case management hearings and before speeches. It may well have been that had that taken place all could have agreed before speeches that this was not truly a live issue.
33. That was not the only reason for discussion as to the law and as to the live issue before speeches. However experienced, skilful and respected a judge may be, as the judge in this case was, in this case, as in most others, time spent in how a jury should be instructed in relation to the live issues would have been time well spent. The judge had, so we are told at the Bar, written his own draft, but he clearly did not follow it when it came to giving his directions to the jury. He would have been well advised to take into account the far more focused draft we were shown, prepared and accepted by counsel, and to use it. Directions, particularly in a case involving R v English, should be written out in advance and preferably handed to the jury with a series of questions. In the instant case that could have been achieved with four short questions: 1. Are you sure that the knife and the baseball bat were causes of death? 2. If not both, which one? 3. If only one, are you sure the defendant intended that weapon to be used? 4. If not, are you sure he realised that that particular weapon might be used, but nevertheless took part in the attack?
34. There was no need to refer to examples at all. A short direction as to joint intention, coupled with participation, would have sufficed. Short, clear directions prepared in advance and submitted for discussion with counsel and focused on the particular facts of the case are all that are required. They will receive the approbation of this court. Unwritten, lengthy directions which owe more to extracts from the Judicial Studies Board sample directions which have no bearing on factual issues in the case are dangerous. They are likely to deflect the jury from the real issues. They lead to overlong summings up and to appeals. We cannot overemphasise the opening words given emphasis by italics in the Judicial Studies Board sample directions; they reiterate the need to discuss in advance with counsel before final speeches the appropriate directions and to tailor those directions to the facts of the case. The Judicial Studies Board makes clear that that which they print in their invaluable book are merely examples and they will not be appropriate to every case. But, for the reasons we have given, we have come to the conclusion that the verdicts in this case were safe and these appeals are dismissed.
35. MR BURKE: There remains, my Lord, an outstanding appeal against sentence with leave, Marcia Grant's only. I can take you quite shortly I trust. There were no aggravating circumstances found by the trial judge in relation to any of the appellants who were sentenced on 9 May. But there were a number of distinguishing features with Marcia Grant and her more mature co-defendants. She was only 22 at the time of her conviction. And although there was some evidence that she was seen to be wielding a baseball bat, perhaps the most convincing witness in the trial, the victim on count 3, Mr Azimi, it was categorically his assertion he had never at any stage seen Marcia Grant with a baseball bat. The sentencing judge would have been entitled to give Marcia Grant the benefit of the doubt on the controversial issue of the use of the baseball bat and had he found in her favour, which with respect he should have done, what the case against her would have been was a slap to the victim, Kocak, at the very beginning of ---
36. LORD JUSTICE MOSES: Or going along in a car with a weapon.
37. MR BURKE: Going along, a slap, in what was violence in the (inaudible) case and present an encouragement but no more thereafter. However, it is to be borne in mind that Marcia Grant was 22 and of impeccable character, and I was able to place before the trial judge some evidence of her good character in a positive sense both of the work that she did and in the opinion by which she was held by those who knew her. She was a timid, utterly charming woman, and she was swept up in a 2-minute incident, convicted I accept --
38. LORD JUSTICE MOSES: In what? I am so sorry, I have lost you.
39. MR BURKE: She was swept up in this 2-minute incident as the phone records indicate it was and as such the sentence in her case did not require a term of the minimum recommendation. If the court is minded to I would invite the court to reduce the term that this unfortunate woman now has to serve.
40. LORD JUSTICE MOSES: Thank you very much. We will retire to consider this.
(Short adjournment)
41. LORD JUSTICE MOSES: I do not think it matters Mr Burke, but it is still an application, it was just referred to us by the Full Court. I think it is academic, but anyway it does not matter. I should have asked you, did you want to say anything on sentencing?
42. MR JAFFERJEE: My Lord, no, thank you.
43. LORD JUSTICE MOSES: There is before the court an application on behalf of Marcia Grant, who is now 23 and was 22 at the time of her conviction, in relation to the 12 year minimum recommendation the judge ordered her to serve as the tariff when passing the sentence of life imprisonment.
44. What is urged upon us is that she was but a minor player in this terrible but short incident. It lasted, as the phone calls establish, a very short period of time, some 2 minutes. Her guilt amounted to travelling in the vehicle that carried the weapons. There was evidence that she triggered the violence by slapping the victim's face. But there was also evidence that she had not herself wielded any weapon. All that was known about her is her excellent previous character; her timidity and her hard work suggested and supported that submission that her responsibility was less than the others.
45. In those circumstances we think there was a sound basis which the judge did not adopt for distinguishing between her and the other appellants. In those circumstances, because of the mitigation, terrible though her responsibility is, we think it appropriate to reduce the 12-year minimum recommendation in her case to one of 10 years. To that limited extent the application is allowed and her appeal against sentence is allowed. We should also add that in Robinson's case, referred as it was by the registrar, that we need to extend time to appeal and we do so.