England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 200702563/C2-200703418/C2 Royal Courts of Justice Strand London, WC2A 2LL
		28th January 2008

1. THE VICE PRESIDENT: On 23rd April 2007 in the Crown Court at Maidstone, the two appellants were convicted of two counts of wounding with intent and four counts of attempting to inflict grievous bodily harm. They were sentenced as far as the appellant, Bennett, was concerned to 4 years' imprisonment and as far as Turner was concerned to imprisonment for public protection with a minimum term of 30 months. They were also disqualified from driving.
2. The charges arose out of a horrific incident of deliberate driving for the purposes of causing injury as the jury's verdict indicated. It occurred in the early hours of 24th July 2005. A group of young people had left a nightclub in Strood, in Kent, and eventually went to the ESSO garage in Cuxton Road where they stopped to buy something to eat. While they were on the garage forecourt a car drove in which was occupied by four young men. They were being loud. There was an altercation to which we will return between one of the group of pedestrians and one of the people in the car. The group then left the forecourt to walk along the road when, the prosecution case was, the car which had been in the garage and had been involved in the altercation, was driven deliberately onto the pavement and into the group. The number of counts reflect the fact that the group consisted of six young people, two were significantly injured, hence two counts of wounding with intent. The others were fortunately not seriously injured but the counts reflect what the prosecution say must have been the intent not only of the driver. But also the passenger. It was the prosecution case that the driver was Turner and the passenger was Bennett.
3. As far as the evidence was concerned, it consisted of the evidence of the six young people, two of whom were called to give evidence, the others were read. The position was, as far as that evidence was concerned, that at one point one of the group called Reggie Smith, one of those whose evidence was read, said that he went over to the car in the garage because he thought the front passenger was shouting at the girls in the group. He told them he did not want any trouble and they should leave his friends alone. The car then drove away. Two of the witnesses who were called agreed that such an incident had occurred.
4. None of the group of pedestrians admitted to knowing any of those in the car; and after the incident there was an identification procedure, at which none of them was able to identify either of the two appellants. The evidence against the appellants consisted almost, but not wholly entirely of the contents of an interview that the police had with a young man, Darren Jodka. Darren Jodka was identified on a CCTV video recording by a police officer as being the front seat passenger in the car. That television coverage was of the forecourt of the garage. Jodka was arrested on suspicion of attempted murder and interviewed twice under caution. During the course of those interviews, for the moment taking it shortly, he identified that at the relevant time, that is at the time the car struck the pedestrians, the car was being driven by Turner and that Bennett was the front seat passenger.
5. On that basis he was called by the prosecution as a witness, the prosecution having determined not to charge him. At an aborted trial said that he could not remember. At the trial with which we are concerned, he was called to give evidence and in-chief once again stated that he could not remember the events of that night. The prosecution applied for him to be treated as hostile and the judge granted that application. The prosecution then sought to put in the contents of the interviews under section 119 of the Criminal Justice Act 2003. The judge, after hearing argument, concluded that the contents of the interviews were admissible under section 119. It was then submitted on behalf of the appellant that if the contents of the interviews were admissible, nonetheless they should be excluded under section 78 of the Police and Criminal Evidence Act. The judge rejected that submission and the contents of the interviews were accordingly played to the jury.
6. At the end of the prosecution case counsel for both appellants then submitted that there was no case to answer, relying upon the well-known cases of Galbraith and Shippey, but also relying on the provisions of section 125 of the Criminal Justice Act 2003. The judge rejected those submissions, held that there was sufficient evidence upon which a jury properly directed could convict and allowed the matter to go before the jury.
7. At this stage we should state that in addition to that evidence, that is the evidence of those statements, there were two further pieces of evidence which were of significance. One was the evidence of a Gerald McKenna, which was also read to the jury, in circumstances with which we are not concerned, and that evidence was to the effect that he had bought the car, which was clearly identified as the car in the incident, in mid July 2005, and that on the evening of 23rd July 2005, that is the evening of the night on which the incident occurred, he had lent that car to the appellant, Bennett, whom he had known for a few months. The following day the appellant, Bennett, told him that the car had been stolen.
8. The second material part of the evidence was the evidence of two witnesses who were also pedestrians in the area at the time, one was Steve Nifton. He was with a friend, Shane Burke and another, when they saw a car, which accorded with the description of the car which had been owned by Gerald McKenna, driving round in Cuxton Road. The people in the car were shouting as if they were looking for trouble. The next time he saw the car, he said minutes later, it had stopped and all four doors were open and the occupants appeared to change seats. It drove back to the roundabout and then he saw it eventually revving its engine, mounting the pavement in front of him and driving into the group which was the group of pedestrians who were hit by the car. The evidence of Shane Burke and his friend was also read. They said that when the car stopped in front of them, they saw one of the back seat passengers get out and swap places with the driver and the other back seat passenger swapped places with the front passenger.
9. The jury, on the basis of that evidence, the detail of the evidence of Jodka we will return to, convicted the appellants after they themselves had not given evidence, and after a summing-up terms about which no complaint could possibly be nor has been made.
10. The essential grounds of appeal relate to the fact that the judge permitted the evidence of the interviews of Jodka to be put before the jury. Further it is said that even if he was correct in permitting them to go before the jury, he wrongly refused to conclude that there was no case to answer, either in the Galbraith sense, or pursuant to the requirements of section 125(1) of the 2003 Act, on the grounds that the evidence was so unconvincing that any conviction of the offence would be unsafe.
11. There is no challenge to the judge's conclusion that the evidence, that is the content of the interviews, was admissible pursuant to section 119 of the 2003 Act and to put in its context it may be appropriate just to set out the terms of that section which clearly changes substantially the admissibility of previous inconsistent statements. It provides as follows:

"(1) 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 (c. 18).

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

(2) If in criminal proceedings evidence of an inconsistent statement by any person is given under section 124(2)(c), the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible."

12. As can be appreciated, that makes a substantial change in the previous evidential position of such statements and it is, as we have indicated, accepted that the consequence was that, in the light of the fact that that the witness, Jodka, asserted that he could not remember the events of that evening, it meant that the material contained in the interviews, which set out, as we shall see, an apparently clear and coherent account of what happened that evening was properly described a "previous inconsistent statement".
13. The detail of the statement may best be set out at this stage in order to enable the arguments under section 78 and the arguments relating to the question of whether or not the matter should have been left to the jury to be properly understood. The transcript of the relevant part of the interview reads as follows. The reference to "Chris" will be to Turner and the reference to "Simon" will be to Bennett:

"Chris said: 'Let's go to the petrol garage and get some more credit'. So we went to the petrol garage and then we pulled up just near like the cash point and Chris said: 'Oh no, don't go in there, there's a boy there there I can't... I have rows like him like... he wants to fight me.' So Danny started shouting out the window saying 'what him there wants to fight ya?' So the boys turned round, noticed it was Chris and come over to the car, opened my door. I was in the front passenger and said: 'What do yous want?' and Chris was trying to hide in the back and said: 'You're Chris Turner ain't ya, get outta the car, I'll fight ya'. So I said: 'Come on, let's just go'. Boy said: 'If you don't want no petrol get out the petrol garage and go'. So we drive off up the top of the road, got to the roundabout near Amadeus, Cuxton Road, and Chris said: 'Let me drive'. So Chris got in the driver's seat, Simon went to get in the back. I said: 'Oh Simon let me get in the back'. So I got in the back, me and Danny was in the back, Simon was in the front passenger and Chris was driving. Chris said: 'I'm gonna run him over', so we went round and Simon's going: 'Don't be silly don't be silly'. Chris parked up on the main road on the edge and Simon said: 'Don't be silly, you can't do that' and Chris said 'No... I can't do it' so we swapped back over and we're sitting there and I said: 'Take me home Simon' and Simon said: 'We're going ....' Chris said: 'Oh fuck this let me do it'. So they swapped back over I said 'Come on, Dan, let's get out'. Chris said to me: 'Before I do this Del I want you to get out, coz I don't want your uncle on my back'. So I said: 'Come on Dan, let's you and me get out' and Danny said to me: 'No don't be silly, he ain't going to do it'. So I shut the door and sat down, before I knew it, Chris started the engine up and said: 'Come on let's get home' just driv off all normal and people was walking in front of us and Chris put his foot down and just headed for the lot, and we just driv off, got back to Gravesend, Valley Drive and me and Danny said: 'Let us get out'. Chris was saying 'No, let's just get home'. So Danny ripped the handbrake up, we jumped out and Simon and Chris driv off. I got to my front door, Chris phoned me up and he said: 'If you grass me up, I'm gonna do what I just did to them... I'm gonna to do what I just done to you what I just done to them. I said 'I won't say nothing, I won't say nothing'. He said 'You best not' and then cut the phone off and I went to bed and that was it."

14. On behalf of the appellant, Bennett, Mr Lloyd submitted to the Recorder, as did Miss Ritchie on behalf of the appellant, Turner, that the circumstances were such that it could properly be said in terms of section 78 that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the omission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not admit it.
15. They also referred the judge to section 114 of the Criminal Justice Act 2003, which sets out in subsection (2), the matters to which the court must have regard, when dealing with admission of hearsay evidence. It was submitted that in the present case the evidence was inherently unreliable given by an unreliable witness in circumstances such that the court could not properly place any reliance on it at all. That made it a statement which should not be put before the jury as it would be prejudicial to the fairness of the trial. The basis upon which those submissions were made included the following. Firstly, the Crown's case against each of the defendants was based wholly on the evidence of the witness who had a motive to lie; having been arrested on suspicion of attempted murder, his account was bound to be an exculpatory account in all the circumstances. He was therefore giving an account which should not properly found the only substantial evidence against these appellants. Secondly, Jodka was a confessed drug user. Thirdly he was a man of bad character, indeed he was serving a prison sentence at the time. Fourthly he was, on the prosecution's own case, a liar, in that this material was being put before the jury on the basis that he was lying when he said he could not remember. Fifthly the evidence of what happened, according to him, at the garage, was inconsistent with the evidence of the pedestrians because his evidence suggested that at least one of the pedestrians knew the appellant, Turner, whereas none of the pedestrians admitted knowing Turner or recognising him at a later stage. In all those circumstances, it was submitted it was wholly inappropriate to put the matter before the jury.
16. The Recorder considered those submissions and dealt with them in detail. It is acknowledged on behalf of both appellants that he directed himself clearly and correctly as to the provisions of section 78 and the circumstances in which that discretion should be exercised. It is also accepted that he carefully considered the matters set out in section 114(2) of the 2003 Act which were relevant to the consideration of the exercise of his discretion. But nonetheless the appellants submit he came clearly to the wrong conclusion.
17. We cannot see how that argument can succeed. As far as section 78 was concerned, the position was that the appellants were perfectly entitled to and able to cross-examine Jodka. Clearly, the fact that he was purporting not to remember what happened meant that they were unable to ask him to replicate the account but that did not prevent them from putting to him their case, cross-examining in relation to the account, in relation to its internal consistencies such as they were or external inconsistencies such as they were; and of course it did not preclude them in any event from them being able to give their account, if they so wished, to the jury at a subsequent stage. There was, it seems to us, ample material to justify the Recorder concluding that in the light of the evidence from the witness, McKenna, that the appellant, Bennett, had at the very least access to the car at the relevant time, and the evidence of the CCTV camera and the evidence of the police officer placing Jodka in the passenger seat, as he himself said in interview, and finally the evidence of the witnesses who saw what happened in the road, that is the changing places of those in the car, a matter which otherwise would only be known to those who were in the car, that the material was not so undermined by any other evidence as to suggest that it could not properly be relied on by the jury. Further, it is important in this context, and also when we consider the later submissions in relation to leaving the matter to the jury, to recall that the jury had the benefit not merely of a transcript of the interviews, but hearing the recording of the interviews themselves from which the jury could derive at least some assistance. The judge clearly considered that he derived assistance from it and expressly so stated. We can see accordingly nothing in the present material before us which could justify the conclusion that the judge exercised his discretion in a way with which this Court could disagree the extent of concluding that the consequence of the admission of this evidence rendered the verdicts unsafe.
18. We turn then to the submissions made at the end of the prosecution case that the case should be withdrawn from the jury. There is a substantial overlap between the way in which the matter was put on the basis of Galbraith, on the one hand, and section 125 on the other. Section 125(1) provides:

"(1) If on a defendant's trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for 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."

19. This Court has considered the interrelation between those provisions and the classic submissions of no case to answer based upon Galbraith in the case of Joyce and Joyce [2005] EWCA Crim 1785, where at paragraph 19, Rose LJ, giving the judgment of this Court said:

"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."

20. The point is made on behalf the appellants that we should approach this case on the basis that it is a very different case from the case of Joyce and Joyce. Joyce and Joyce was a case involving identification. Later on in the judgment, Rose LJ sets out the circumstances in which the identifications were made, in terms which make it clear that the identification evidence was strong. It was a case where the statements relied upon were statements pursuant to section 9, in other words statements in which the witnesses had each indicated they were stating the truth as to the matters set out in those statements. This case is very different. This case is concerned with the contents of interviews where there is no statement of truth. Finally and most important, it is submitted that this case is concerned not with three statements but one statement and one statement from a witness whose evidence has the deficiencies which were identified in the submissions relating to section 78.
21. Accordingly it is submitted on behalf of the appellants, this was clearly a case where the court should have been driven to conclude, using either the Galbraith test, or section 125, that the evidence was unconvincing. The difference clearly between section 125 and Galbraith is that there is statutory obligation in section 125 to stop the case and that, it is submitted should have been done in this case. It is submitted that this is the first time when such evidence has been put before the court and before a jury in a trial and that it represents a radical departure from previous practice. We agree. But the plain fact is that the provisions with which we are concerned in this case (essentially section 119) have undoubtedly changed the landscape of a criminal trial. It is now possible to put before juries evidence which was previously inadmissible. That seems to us simply to be the inevitable consequence of the statutory provisions. The protection for defendants is contained in the provisions which the appellants have prayed in aid, namely section 78 and section 125 of the 2003 Act and indeed by the fact that when considering how to approach submissions in relation to section 78 in this type of situation the court is greatly helped by the provisions of section 114(2) of the 2003 Act. This Recorder accorded to the appellants in this case full consideration of those safeguards. He did not, in our judgment, err his application of them. It has to be remembered that this is not a case where the evidence of the interviews was put before the jury in a vacuum. There was the other material to which we have referred, which was at least consistent with the basic thrust of the content of the interviews. In those circumstances, provided that the jury was given proper warning as to how to approach this material, it seems to us that the judge was perfectly entitled to ask the jury to consider it. It has to be remembered that in this case, apart from a written statement handed in to the police by the appellant, Bennett, which dealt, but only shortly, with the fact that he accepted that the car had been bought by his friend, Gerald McKenna, but denied that he had anything to do with the incident on the 24th and did not know what had happened to the car, these two appellants gave no account of the events that night either to the police, or to the jury. In those circumstances, the jury were perfectly entitled to conclude that the evidence of Jodka was sufficient to satisfy them so they which were sure that the appellants were present in the car as he described.
22. That leaves the submission on behalf of appellant, Bennett, that, even if the jury were entitled to consider the interviews, nonetheless the content of the interviews did not justify the conclusion that he was a participant in the crimes carried out by Turner. The judge concluded for the purposes of sentencing that he was part of a joint enterprise. He accordingly must have taken the view that the jury's verdict what was to the effect that when in the narrative given by he Jodka the appellant Bennett got out of the driver's seat on the second occasion and went to the passenger seat, leaving Turner to get into the driver's seat, he knew that Turner was intending to drive at the pedestrians or appreciated that there was a real risk that is what would happen. It seems to us that was a perfectly permissible interpretation of the content of the interviews and the judge directed the jury impeccably as to that aspect of the case.
23. It follows that, in our judgment, the jury were entitled to come to the conclusion that they did in relation to the guilt of the appellant, Bennett. We accordingly dismiss these appeals.