England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		15 February 2008

Friday 15 February 2008

LORD JUSTICE KEENE:

1. These are renewed applications for leave to appeal against conviction, leave having been refused by the single judge. On 2 November 2006, in the Central Criminal Court, before His Honour Judge Barker QC (the Common Serjeant), both applicants were convicted of murder and were sentenced to life imprisonment. A co-defendant, Mahorn, was acquitted of murder and indeed of the alternative of manslaughter.
2. The victim, Richard Holmes, was shot and killed at about 12.45am on 4 November 2005 outside the community centre on the Chingford Hall Estate in North East London. He was shot three times. There was expert evidence that one shot to the leg had been fired from a converted Mach 10 sub machine gun. Two further shots, one to the arm and the fatal shot to the back, which had passed through his heart, had been fired from a .45 revolver. There was also ballistics evidence of a third firearm having been at the scene.
3. The applicant Green and the co-defendant Mahorn lived on the estate at the same address. The applicant Dobson lived in Stratford, East London.
4. It was not alleged by the Crown at trial that the fatal shot had been fired by any of the three defendants. That shot was said to have been fired by a fourth man who was not on trial. But it was alleged that all three defendants were jointly responsible for the killing on the basis of joint enterprise. All three were alleged to have been part of a gun-carrying group and to have known what was likely to happen. The applicant Dobson was said to have had the Mach 10 sub machine gun and to have fired the shot into the victim's leg. The Crown's case was that Green and Mahorn were present and participated through encouragement.
5. In interview Dobson did not overtly deny presence at the scene. In a prepared statement he said that at the time of the alleged offence he was not in possession of a firearm. His statement went on to say, "I would further like to confirm that I adamantly deny pointing a gun into the chest of Richard Holmes or shooting Richard Holmes". At trial he denied being present and relied in an alibi.
6. In interview, both Green and Mahorn denied presence at the scene of the shooting at the relevant time. At trial both said that they had been on the estate at times that evening but were not present, nor participating, at the time of the shooting.
7. It will be apparent from what we have said that all three defendants gave evidence at trial.
8. The events that evening began with some form of confrontation between Mahorn and Sabar Shah, both of whom were involved in the music business. Things developed from there. A group of youths, including Shah and his friend Richard Holmes, went to Mahorn's home address. There was cell site phone evidence that Mahorn had telephoned Dobson and Green and that they had travelled to the estate along with others. Later that evening there was a further confrontation between two groups, leading to the firing of a number of shots and the death of Richard Holmes.
9. The prosecution case turned largely on the evidence of three eye-witnesses who gave evidence anonymously and from behind screens. They were referred to as "A", "B" and "F". We do not propose in this judgment to take their evidence in great detail since this is an application for leave. Their three accounts varied. In summary, all three named Dobson (known as "Crazy Titch") as being present at the shooting and as having had the Mach 10 sub machine gun. The strength of that identification varied between the three of them. "F" identified Dobson at an identification parade on 2 February 2006. In his evidence he described Dobson as "jumping around, excited, and shaking the gun". "B" failed to identify him at a parade on 28 January 2006, but she did so at a subsequent parade. The basis of that identification was challenged. "A's" evidence was that Dobson was there at the shooting, but she failed to pick him out at a video identification parade in November 2005.
10. As for the other two defendants, "F" said that they were both there. He already knew Mahorn. He identified Green at an identification parade. He described the applicant Green as saying to Dobson about another man, "He is okay". That man was allowed to walk away. "A" identified the applicant Green as having been with Dobson at the time of the shooting. She was firm about that under cross-examination. She said that she was not mistaken. Her evidence was that she did not see Mahorn there, but she thought that he would have been there. "B" said that Mahorn was there but that Green was not. There was, however, evidence that she had named Green on the night of the shooting as having been present.
11. The Crown also successfully applied to adduce evidence of Dobson's and Green's previous convictions on the basis that they showed a propensity towards gun crime. We shall return to the judge's ruling on that in a moment. The jury unanimously convicted the applicants and unanimously acquitted Mahorn.
12. Both applicants now contend that the verdicts in their cases were perverse as being inconsistent with the acquittal of Mahorn. In addition, and indeed connected with that first point, both argue that the judge was wrong to allow in the evidence of their previous convictions, which may go to explain the willingness of the jury to convict the two applicants while acquitting Mahorn. We shall deal with these issues first before coming to a separate point raised on behalf of Dobson.
13. It is convenient to take first the issue of the admissibility of the previous convictions, as have counsel today. In his ruling the judge spelt out the basis for the application by the Crown as follows:

"Dobson was convicted of robbery on August 27th 1999 while using an air pistol with another in a betting shop. He was sentenced to five years' detention. This, the prosecution say, is relevant to a matter in issue under section 100(1)(d) of the Criminal Justice Act 2003 and it shows a propensity to commit gun crime and goes to knowledge of the carrying of a gun by another. In the case of Green, he was arrested in May 1994 in possession of a fully-loaded, semi-automatic hand gun, and on the previous two days had held up two petrol stations and a store with a handgun and robbed employees. No one saw Green with a firearm at the community centre, but the prosecution assert that these offences go to a propensity to commit gun crime and whether he would lend himself to gun crime and also to his knowledge of others carrying loaded weapons."

The three robberies and firearms offences on the part of Green were committed in Canada.

14. The judge summarised the arguments on behalf of the defence, which were mainly that the convictions did not help on the central issue of identification and that the prejudicial effect would outweigh any probative value. He then referred to this court's decision in the guideline case of R v Hanson [2005] 2 Cr App R 21, and posed three questions for himself:

"Does the history of the conviction(s) establish a propensity to commit offences of the kind charged? Does that propensity make it more likely that the defendant committed the offence charged? Is it unjust to rely upon the conviction(s) of the same description or category; and in any event will the proceedings be unfair if they are admitted?"

Having posed those questions, the judge continued as follows:

"The circumstances surrounding the previous convictions of each defendant are different, and I have considered each case in isolation. The points made by counsel have force, and clearly the admission of this evidence against either will have substantial prejudicial effect. I bear in mind that these are single convictions although in the case of Green there were several offences involving the same firearm. Further, in his case they were twelve years ago. I have considered the other evidence in the case, as well as section 101(1)(d) and section 103 of the Act.

In my view, although effectively single convictions, the circumstances demonstrate probative force in relation to the offence charged and the age of Green's case does not diminish its importance. The critical issue is whether either of these defendants would lend themselves to an attack with firearms.

A propensity in each case has been established; it goes to the heart of the case and it would not be unjust for them to be revealed. The provisions of the Act are satisfied and I grant the application to place these matters before the jury, and I have in mind that a careful direction must be given in the summing-up."

15. On behalf of Dobson, Mr Trimmer QC emphasises that his client's previous conviction was allowed in under section 100(1)(d), which requires it to be relevant to an important matter in issue between the defendant and the prosecution. He acknowledges that section 103 renders the issue of whether a defendant has a propensity to commit offences of the kind with which he is charged a matter in issue between the defence and the Crown, except where having such a propensity makes it no more likely that he is guilty. But it is submitted that there was no important matter in issue to which any such propensity was relevant. The only important issue, it is said, was whether Dobson was correctly identified and his previous conviction could not assist on that. The issue at trial, submits Mr Trimmer, was not whether the applicants would lend themselves to an attack with firearms; the only important issue was identity. It is said that the law still retains identity as a special case, despite the Criminal Justice Act 2003. Something akin to a signature or striking similarity about the previous offences needs to exist before such an offence or offences can be seen as relevant to issues of identity. That was not the situation in the present case. In addition, Mr Trimmer challenges whether the previous conviction of his client was capable of establishing a propensity to commit an offence of the kind charged, namely murder. He stresses that the past conviction was for a robbery involving an air pistol. It was five years before when the applicant was a youth. It was a single offence committed for the purpose of gain; certainly it was not strikingly similar.
16. Finally on behalf of Dobson on this topic, it is contended that it was unjust to admit this evidence because of the prejudice that it involved and that the judge failed to give the jury an adequate direction as to its relevance. The judge should have told the jury to exercise great care in how they used this bad character evidence. It should have been tied in to the issue of identity. The decision of this court in Turnbull on identification requires the judge to identify what evidence may support the identification of the defendant. That was not done by the judge here.
17. On behalf of the applicant Green, Mr Borrelli QC makes similar points on this ground, while adopting what has already been submitted on behalf of Dobson. Mr Borrelli also emphasises the argument that propensity is of no relevance when the defence is one of alibi and the central issue is one of identification and the correctness of that identification. It could, it is said, only be relevant if the jury had first been sure that the applicant was present at the scene. While he does not go so far as to say that previous convictions can never be used to support an identification, Mr Borrelli contends that in the present case there were two separate issues in respect of the applicants: first, their presence at the scene (which was denied); and secondly, their participation in the killing if they were present. Propensity, it is submitted, could only go to the second of those, namely participation, and not to presence. Furthermore, it is said that the Crown did not seek to have this evidence admitted at trial on the issue of presence at the scene.
18. We turn to consider these arguments. The trial judge posed for himself the three questions suggested by Rose LJ in Hanson at paragraph 15 when the Crown seeks the admission of such evidence on grounds of propensity. We have quoted those questions earlier in this judgment and need not repeat them. The first of them deals with the issue of whether a propensity of the relevant kind exists. In Hanson the court made it clear that no minimum number of previous convictions is required to demonstrate a propensity. It very much depends on the nature of the previous conviction, its age and on the rest of the factual circumstances (see paragraph 9 in that case). That same paragraph made it clear that there does not have to be in the words of earlier authorities a "striking similarity". The number of previous convictions will often be relevant. If there is only one of considerable antiquity without any special distinctive features and without other such offences in the interim, then it may not be capable of establishing such a propensity (see R v M [2006] EWCA Crim 3408, [2007] Crim LR 637) in which there was a single firearms offence 20 years earlier.
19. What was also made clear in Hanson at paragraph 15 is that this court will be slow to interfere with a judge's ruling on the admissibility of bad character evidence if the judge has directed himself (or herself) correctly. It is only if his judgment as to the capacity of prior events to establish propensity is plainly wrong or his discretion has been exercised unreasonably in the Wednesbury (BAILII: [1947] EWCA Civ 1) sense that this court will interfere. We agree that that is the approach which should be adopted by an appellate court in cases of this kind.
20. On those principles it seems to us that the judge here was entitled to conclude that the previous convictions in this case of both these applicants were such as to show a propensity to commit gun crime whether as a principal or as a secondary party. In respect of Dobson, his was a relatively recent conviction involving a firearm for criminal purposes. Even though it is only a single conviction, it could in our view suffice.
21. In the case of Green, his convictions for firearms offences and robbery were earlier in time (1994), but they were several in number and demonstrated a willingness to carry and to use firearms for criminal purposes, if only to threaten. One of them involved a loaded firearm. The only purpose of having ammunition in the gun could have been for the possibility that it might have to be used. In both their cases the past offences, as we have indicated, involved firearms.
22. If there was such a propensity, as the judge found, was it relevant to an important matter in issue between the defence and the Crown? There was here no dispute that Richard Holmes was shot -- and indeed shot by two different weapons -- and that there were others accompanying the gunman who fired the fatal shot. What was in issue was whether these two applicants were the men (or some of the men) who were there and participating in the way alleged in the murder. That was an important matter in issue. We do not accept that previous convictions showing a particular propensity cannot be relevant to showing that a defendant was the person who committed the crime charged. Merely because identity is put in issue and an alibi raised does not render propensity irrelevant. It will not by itself be enough to establish identity, but it may often be capable of supporting the credibility and reliability of other evidence of identification. The point as a matter of principle may be more readily appreciated by postulating more extreme circumstances, as where someone accused of a sexual assault of a woman in the street pleads that it was not him and provides an alibi. She identifies him as best she can. Would not evidence that he had several recent convictions for similar assaults be admissible to show that it was him on the occasion now charged and to support the identification evidence by the victim? We are of the view that it would. It would be relevant and therefore prima facie admissible, subject of course to the judge's usual discretion.
23. We have taken there what may be a more extreme example, but we do so only in order to make the point more obvious. We do not accept Mr Trimmer's point about the need for a striking similarity in cases where the main issue is identification. Not only is paragraph 9 of Hanson quoted earlier contrary to that, but the correct test is now to be found in the provisions of the 2003 Act, and in particular for present purposes in section 101(1)(d). Is it relevant to an important matter in issue between the defendant and the prosecution? As Mr Borrelli acknowledged, bad character in the sense of previous convictions can, if they demonstrate a particular propensity, be relevant on the issue of identity, which was crucial in the present case. We entirely accept that it is a matter of degree whether the propensity is established and also whether the propensity is relevant. But striking similarity is not the test.
24. This can be appreciated from the decision of this court in R v Eastlake [2007] EWCA Crim 603. That was a case in which two male teenagers had been attacked by two males who then ran off. The appellants denied that they were the assailants. They relied on a defence of alibi. They asserted that the identification of them by witnesses was mistaken. Evidence of previous convictions for assault was allowed to go before the jury under section 101(1)(d) and section 103, and in the event both defendants were convicted. On appeal it was argued that, since the defence was alibi, the previous convictions were irrelevant. Such evidence, it was said, did not make it any more likely that the appellants were present at the scene. That argument was rejected. The court said this:

"19. We do not accept this submission. The jury had to decide whether the two appellants were the two young men who committed the offence. The evidence of bad character was capable of establishing that they had a propensity to commit an offence of street violence, and to do so together. That evidence was capable of lending support to the conclusion which the Crown invited the jury to reach, namely that the two appellants were correctly identified as those who committed the attack. This is so even though there was no dispute in the trial that those who committed it, whoever they were, acted as aggressors."

We agree with that conclusion for the reasons which we have already indicated. Such evidence may go to show that the witness or witnesses identifying a defendant as present and participating is correct in so doing.

25. Mr Trimmer sought to distinguish Eastlake on the basis that it was a case of striking similarity. We cannot agree with that. The previous offences there were simply ones of street violence. It is true that in one instance the two accused had in the past acted together, but no emphasis had been placed by the trial judge on that particular fact. R v Purcell [2007] EWCA Crim 2604 is another instance where previous convictions were held to have been properly admitted to support an identification and to rebut a defence of alibi.
26. Implicit in what we have just said is that we reject Mr Borrelli's argument that the evidence of propensity was only relevant in the present case to participation in the killing, as opposed to presence. Just as in Eastlake, the propensity in question was capable of supporting the identification of the applicants as being present and participating in the offence. Indeed, it seems to us to be somewhat artificial in the present case to separate those two matters of presence and participation. What the evidence of propensity was capable of doing was supporting the eyewitnesses' evidence of identification -- in short, that what they said was they had seen was correct. In other words, had they identified the right people?
27. We can see no merit in the argument that the Crown only sought the admission of this evidence on the issue of participation and not on presence. That is far too narrow a reading of the judge's ruling. The judge said that this evidence of character "goes to the heart of the case". Patently by that he meant whether the two applicants were present and were involved in the offence of killing.
28. So far as the exercise of his discretion on the justness or otherwise of admitting these convictions is concerned, we can see no basis for saying that the judge's decision fell outside the range of decisions properly open to him on the evidence. It was not Wednesbury unreasonable. He had directed himself in accordance with the proper principles.
29. As to his directions to the jury, the judge gave the requisite careful directions about previous convictions along the lines indicated in Hanson and in Edwards [2005] EWCA Crim 1813. Amongst other things, he emphasised that by themselves previous convictions could not establish guilt. He also made it very clear that the jury could not convict wholly or even mainly on the strength of those previous convictions. In our view he did not need to go further than he did.
30. Given our conclusion on the relevance of the previous convictions to both presence and participation, no specific direction about the relevance of those convictions to the defence of alibi was required. The judge gave the normal direction about the Crown having to disprove alibi, and indeed repeated it a second time in the course of his summing-up. It seems to us that it must have been obvious to the jury that his directions about the possible relevance of previous convictions were relevant to the issue of identity. We say that because that was the central issue in the case.
31. It follows that we can see no proper basis for an appeal on this first and indeed main ground which is put forward on behalf of each of the applicants.
32. Connected with that, but also said to be an independent ground of appeal in its own right, is the issue of inconsistent verdicts. It is submitted on behalf of both applicants that the convictions of these applicants was so inconsistent with the acquittal of Mahorn as to render them unsafe. As a matter of oral submissions, that is a point which has been particularly emphasised by Mr Borrelli, but we take it on board in respect of both these applications.
33. It is submitted that the cases at trial against Mahorn and Green were inextricably linked. We have been taken in some detail through the evidence of the three main eye witnesses. It is said that to have convicted Green but acquitted Mahorn was perverse. As we have indicated already, this overlaps to a degree with the other ground, the admission of previous convictions, in that it is said that the admission of Green's previous convictions, must have been what made the difference since Mahorn had none that were put before the jury. The same in effect is said on behalf of Dobson.
34. In dealing with this as a specific ground, we remind ourselves of the well-established approach as a matter of law to the contention that verdicts are inconsistent and unsafe as a consequence. The legal principles apply whether one is talking about different verdicts on counts faced by the same defendant or about different verdicts in respect of two or more defendants. The essential principle is that it is necessary for an appellant to establish that there is a logical inconsistency in the verdicts, in the sense that no reasonable jury applying their minds to the facts could have reached those verdicts (see R v Durante (1972) 56 Cr App R 708, R v Aldred and Butcher [1995] Crim LR 160 and R v G [1998] Crim LR 483). It is not enough that it seems surprising that the jury returned the verdicts that they did, or that the Appeal Court itself might not have returned such a combination of verdicts had it been sitting as a jury. If there is a possible legitimate chain of reasoning which could explain an apparent inconsistency, this court will not interfere (see G). It is open to a jury to believe a single witness on part of his or her evidence, but not to accept another part. Those are the established principles.
35. The present case concerned an incident which in its critical phase was relatively brief and fast-moving. It took place at night time. It seems there were a considerable number of people around. It is acknowledged in the Advice on Appeal for Green that there was a deal of inconsistency in the evidence given by the three main eye-witnesses. Indeed, this is prayed in aid in the course of the submissions on his behalf. All of that is true. Perhaps unsurprisingly, and certainly not unusually, the eye-witnesses' accounts of events differed in certain respects from each other. The jury for its part had to assess the credibility of each of those witnesses and the reliability of their evidence in its various aspects and in respect of each of the defendants. They had to evaluate what each of those witnesses said about each of the defendants.
36. The jury then heard each of the defendants give evidence. Just as they had to do with the Crown's witnesses, so here again the jury had to decide how far they believed each of the defendants. In the light of that complex assemblage of decisions about at least the three Crown eye-witnesses and the three accused, the jury then had to decide whether they were sure of guilt, considering each defendant separately. In considering the cases against the two applicants, they also had their previous convictions to consider. It was not illegitimate to take those into account.
37. It seems to this court that, in that complicated situation, it is quite impossible to say that no reasonable jury properly approaching their task could have reached the combination of verdicts which this jury did. We do not know what they made of each of the three eye-witnesses and the three defendants. As the single judge said, they may have found witness "A" particularly convincing when she said that she saw Green there at the relevant time, but did not see Mahorn. That indeed was a point made on Mahorn's behalf to the jury by his counsel (see the transcript of the summing-up, Volume 1, page 38C). All three eye-witnesses said Dobson was there with the sub machine gun.
38. The evidence in the case was patently complex. That being so, we can see no prospect of a successful appeal on the basis that the verdicts were logically inconsistent and therefore perverse.
39. Finally, a point is raised on behalf of Dobson about a reference by the judge to the internet. It was a reference made at the outset of the case. What he said was this:

"Sometimes people like to look up on the internet and try and find out anything that they can about the background.

What is there does not matter. I am not banning you from looking at the internet, but it is really of no help because what you are doing is deciding this case on the evidence that you hear in this court, which we all hear together."

It is argued now that that statement undermines the safety of the convictions. A strong warning should have been given not to seek from the internet information relevant to the case, whereas the words used by the judge implied that it was not forbidden to look at the internet. Mr Trimmer, whose submissions on this were adopted by Mr Borrelli, contends that the judge in effect implied that the jury had permission to look up matters on the internet. If a juror takes into account any such material, then the principle that a defendant is entitled to see all the material on which the jury decides his case is flouted. In that connection reliance is placed on R v Karakaya [2005] 2 Cr App R 5, where that principle is strongly endorsed. Mr Trimmer has obtained some sample pages from the on-line encyclopedia, Wikipedia, about his client. Some of the extracts postdate conviction, but others do not. They refer mainly to Dobson's musical activities, but they also include references to the other offences for which he was sentenced in 1999, along with the robbery about which they knew. Those other offences included handling, theft, burglary and criminal damage. There is also a reference to him being on trial for murder by paying someone to kill the victim.

40. We do not find this argument persuasive. The facts here are a long way from those in Karakaya where documents down-loaded from the internet were found in the jury room and had been introduced there after their retirement. The material in question was patently relevant to the issues in that case. Here there is not a shred of evidence that any juror sought to obtain or did obtain any such material. The submission is based entirely on the judge's comment to which we have referred. That comment could have been put in stronger terms. In our view it would have been better had it been put in stronger terms. Nonetheless, in the course of it the judge made it clear that the jury had to decide the case on the evidence which they heard in court. He came back to that again at the start of his summing-up at page 10G of the transcript.
41. We have not been provided with a transcript of the whole of the judge's remarks to the jury at the start of the case from which this extract has been taken, but, as the single judge said, and as Mr Borrelli believes happened, the trial judge had evidently just given the jury the usual warning about not discussing the case, save in the jury room, and basing their verdict only on the evidence which they heard. We can see no reason to believe that they did otherwise. In that situation it seems to us that this ground provides no basis for a potentially successful appeal.
42. We have taken these various grounds separately, but looking at them whether separately or cumulatively we can see nothing that causes us doubt about the safety of these convictions and nothing which merits the further detailed scrutiny of a full appeal. It follows that both these applications must be dismissed.