England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 27 January 2009

1. LORD JUSTICE KEENE: I shall ask Butterfield J to give the judgment of the court.
2. MR JUSTICE BUTTERFIELD: On 2 August 2007, at the Central Criminal Court before the Recorder of London and a jury, Mr Toussaint-Collins was convicted of murder. He now appeals against that conviction by leave of the Single Judge.
3. The victim of the murder was a man called Jason Green. That he was murdered is beyond question. He was shot through the heart as he sat in his car with his two young sons outside his home in Wembley at about 8.25 on the morning of 18 July 2006. Jason Green and his brother had been suspected by the police of being responsible for the murder of a man named Shaun Stanislas, known as "Stubbs", in March 2005. They were both arrested on suspicion of that murder, but in the absence of sufficient evidence to prosecute they were never charged.
4. It was the case for the Crown that the appellant was an associate of Stanislas and was one of a number of otherwise unidentified persons who arranged and participated in the murder of Jason Green in revenge. Many other suspects were arrested. None of them were charged.
5. The case for the prosecution rested upon the identification of the appellant by a 15-year old girl, perhaps 14 at the date of these events, known at the trial by a pseudonym of "Lucy York". She was walking to school with her sister, known at the trial as "Ruby Crewe", and her mother known at the trial as "Danielle Leeds". Whilst Danielle and Ruby both gave evidence of the events surrounding the murder, neither was able to make any positive identification of anyone presented to them as suspects.
6. As the two girls walked along Bowater Road, the street in which the murder took place, they noticed a man dressed in purple clothing come from behind them and jog towards a silver Audi, which was on the opposite side of the road facing away from them. This was in fact the car driven by Jason Green. As the man in purple passed them he appeared to nod his head giving what the prosecution asserted was a signal to the waiting gunman. The two girls continued along Bowater Road and passed another silver car, a stolen VW Golf, that was facing them as they walked along. They both saw two black men inside the car. The driver was wearing something like a beanie hat, or perhaps a hood, pulled down to cover his hair, but not his face.
7. The passenger, who the prosecution alleged was the appellant, was light skinned and wearing a balaclava. Lucy York said she could see his eyes, his cheeks and his mouth. It is not surprising that Lucy paid some attention to a man wearing a balaclava in a parked car in a suburban street at 8.25 in the morning in the middle of July.
8. Lucy and her sister walked past the car without stopping. They had gone only a few paces when Lucy heard the sound of a shot and looked around. She saw the man from the driver's seat of the silver Golf in the middle of the road. He was pointing a gun and shooting at the deceased in his car. The gunman had both hands on the gun and fired it twice. With that Lucy and her sister ran up the road towards a green car which was parked further up the road. That car contained two or three black men, one of whom had a gun similar to the one she had seen. The green car sped off. The girls were unable to say what happened to the Golf.
9. They ran back to the scene of the shooting where their mother and younger brother were hiding, and where they saw the body of the deceased slumped across the passenger seat of his car. This must have been a very frightening and disturbing experience for Lucy and her sister. Nonetheless, Lucy had the good sense to telephone the police and dialed 999 from her mobile phone. She was at the time inevitably somewhat confused and no doubt also very frightened by what she had just witnessed. However, the events were fresh in her mind and she gave the police such help as she could. She said in the course of that 999 call:

"There were two people in a silver car and they came running and they shot this guy in another silver car and jumped in a green car and they were driven off. I think there were three shooters."

10. Lucy was taken to the police station where she was interviewed: an interview which was video recorded. She described the man in the passenger seat of the silver car, allegedly the appellant, as wearing a balaclava. She could see the area of his eyes and mouth and she said that his cheeks were quite chubby. He was light skinned, but not as if he was of mixed race. He was wearing dark clothing. She was asked this by the interviewing officer:

"Q. Would you recognise either of them, that is to say, the driver and the passenger in the silver car?"

A. I think I would probably the darker man."

11. On 27 July 2006, nine days after the incident, Lucy again went to the police station this time to view a video identification parade. The whole procedure was recorded and members of the court have seen that recording. The procedure followed was that of the VIPER procedure. The images to be compared with that of the appellant had been selected from a larger number by the appellant's solicitor. In our judgment, having viewed the DVD of the procedure, the people selected bore an obvious general similarity to the appearance of the appellant himself.
12. Lucy watched the VIPER film containing, as it did, eight images of men who could not have been involved in the incident and an image of the appellant himself who was at number 3 in the sequence watched by Lucy. She was required to watch the sequence twice, which she did. She was then asked if she wished to see the sequence again and any image from it. She asked to see image number 3, which she viewed. She was then asked again if she wished to see the whole sequence repeated or any particular image from it, and she asked to see number 2.
13. At trial she explained she thought she asked to see number 2 because she wondered if that might have been the driver of the car. Finally, she was asked whether she could identify anyone. She replied: "I think number 3". She made a further statement that same day in which she clarified that the person she had purported to identify was the man in the passenger seat of the silver Golf motorcar, wearing the balaclava.
14. About ten minutes after the murder a witness saw a van leave waste ground in an area about a kilometre away from the murder scene, known as Cool Oak Lane. The witness saw a vehicle on fire and another next to it. Fire services were called immediately and discovered at that location the stolen VW Golf, which was on fire, and the green Vauxhall, as it turned out, which had been the other car involved. The Vauxhall was not alight, but its interior had been doused with petrol.
15. In the event, no forensic evidence was recovered from the VW Golf and none that assisted the prosecution's case against the appellant from the Vectra. It was not, of course, the prosecution's case that the appellant had ever been in the Vectra.
16. The prosecution asserted that the identification of the appellant by Lucy was supported by two pieces of evidence. First, there was evidence from the analysis of the data from two mobile telephones attributed to the appellant. The analyst was asked to consider the data from the mobile phones in respect of five locations: first, the Cool Oak Lane area where the cars had been disposed of after the murder; second an address in Derwent Rise, the home of the appellant's mother and the place which he said he had been at, at all material times, in the notice of alibi; third, the road where the murder had been committed; fourth, an address in Janson Close associated with the appellant and where apparently he sometimes stayed; and fifth, an address in Bravington Road, which is where the appellant's girlfriend, Selina, then lived.
17. The analyst was given the core data records of the phones provided to him, during the period with which the trial was concerned. The analyst identified a call from one of the mobile phones at about 12.50am on the morning of 17 July, that is to say the morning of the murder itself, and that was transmitted through the best server for Bowater Road, the murder scene. He identified seven calls from that same mobile phone from between about 4.30am and 4.40am using the best server for the waste ground at Cool Oak Lane where the vehicles used in the murder had been destroyed. Finally, he identified two incoming text messages to the second mobile phone attributable to the appellant at 8.37am on the morning of the murder, using the best server for Janson Close, the address associated with the appellant.
18. However, when the analyst was cross-examined he confirmed that he could not exclude the possibility that the calls, which he described, could have been routed through a cell site other than the ones relied on by the prosecution. He could not deny the possibility that certain of the calls had been made, or received, within the Derwent Rise area where the appellant had asserted, through his notice of alibi, he had been at all material time.
19. The second aspect of the prosecution evidence relied on in support of the identification made by Lucy York were two letters: one from William Marshall with the name of "Yogi" or "Bear" to the appellant, who was known as "Tucks" or "Tucka", which had been found by the police on 26 July 2006 during the search of the appellant's mother's address. The second letter relied upon by the prosecution was from the appellant to a man called Terry Watson known as "Weezy", also found on 26 July during a search of 55 Janson Close, the address associated with the appellant. Both letters refer to the death of Shaun Stanislas.
20. The letter written by Marshall to the appellant was couched in the form of street slang, which was clarified at trial by a police officer on his understanding of the language used by the young black population in North West London. The letter had been written about a year after the murder of Stanislas and five months, or so, before the murder of Jason Green. The author of the letter was bemoaning the fact that nobody had taken revenge for the death of Stanislas.
21. The second letter was written by the appellant at a time when he was in prison in relation to earlier offences. The stamp was dated 24 March 2005, three days after the murder of Stanislas. The letter clearly demonstrated, said the prosecution, that the appellant knew Stanislas at the time of his death, and the tone of the letter demonstrated that he was very upset by the news of the killing. The second letter was written by the appellant at the time when he was in custody in relation to wholly unrelated matters.
22. Following his arrest the appellant was interviewed. He exercised his right to remain silent. At the end of the interview he submitted a prepared statement saying:

"One, the person who picked me out is mistaken;

two, I was not at the scene nor was I in a silver motor vehicle on 18th July 2006."

23. The appellant himself did not give evidence relying instead on his statement to the police. He did, however, call his girlfriend who gave evidence, which, to some extent, supported the appellant's alibi.
24. At the close of the prosecution case there was a submission that there was no case to answer. The first ground of appeal relates to the rejection by the learned Recorder of that submission. In outline the appellant submits that the identification evidence against the appellant was so poor, self-contradictory and unsupported by other persuasive evidence that the case should have been stopped. Further, it is asserted that the identification procedure used was flawed because the participants were not wearing balaclavas when their faces were shown to the witnesses, thus depriving the witness of an opportunity to make a proper identification.
25. Although no application was made to exclude the evidence of identification under section 78 at the trial, it is said that such an application should have been made and if it had been made it would have succeeded. The appellant further submits that the judge wrongly admitted in evidence the two letters written to and from the appellant, to which we have referred. Leave was not granted in respect of that ground, but renewed before us. Since the evidence relating to those letters was expressly relied upon by the judge in rejecting the submission of no case, it is clearly sensible to deal with that matter first.
26. In relation to the letter written to the appellant by Marshall, it is submitted by the appellant that the letter and its contents were hearsay, written as they were by someone who was not party to the proceedings. The prosecution sought to use the letter as evidence suggesting a motive for the appellant to be involved in the murder and his state of mind towards those who had murdered Stanislas. The finding of the letter and its importance was opened to the jury by the prosecution without objection being taken, but in the course of the trial itself objection was taken on the basis that the letter was hearsay, was not written by the appellant and therefore reveals only its author's state of mind and not that of the appellant.
27. Those submissions were met by the repost of the prosecution that the appellant had kept the letter for many months in a place that demonstrated that it had a value to the appellant in terms of its subject matter. It is right, as Mr Grunwald QC, who did not appear for the appellant at his trial, points out, that in giving his ruling the judge did not articulate the factors set out in section 114 of the Criminal Justice Act 2003, which a court must consider before allowing the admission of hearsay evidence. If he had done so it is said the letter would not have been admitted. Alternatively it is submitted the judge erred in failing to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984.
28. The respondents do not accept that the Marshall letter was caught by the hearsay rules and accordingly it was not incumbent on the judge to consider section 114 at all. The letter that was found at the appellant's mother's home had evidently been written shortly before the first anniversary of the murder of Stanislas. It had therefore been kept by the appellant for four months at his mother's home, which the respondent submitted indicated a value to the appellant in terms of its subject matter, increased the likelihood that the appellant's state of mind was affected by the letter, and supported the inference that he had a reason for his presence at the shooting, namely a desire for revenge.
29. The letter was not used by the respondents at trial, in our judgment, as evidence of the fact that Marshall was himself annoyed that nothing had been done about the death of Stanislas, but to establish the fact that he had made that statement to the appellant, thereby inferentially, if the jury thought it right, affecting the appellant's state of mind. It is accordingly, in our judgment, direct evidence and just as admissible as, for example, an old newspaper article reporting the death of Stanislas.
30. We are satisfied that the objection that the letter was hearsay is misplaced in the context in which it was used by the Crown. If, however, we are wrong about that and the learned Recorder was wrong about that, we are confident that he would have admitted the letter under the provisions of section 114(1)(b) as being in the interests of justice so to do, given its probative value. The letter had a high probative value providing, as it, did a motive for the appellant's presence at the murder scene and by doing so rendering the identification by Lucy a quite remarkable coincidence. The letter lends support to her identification.
31. It is, in our judgment, very important to the case, as a whole. There could be no reason why Marshall would lie in a private letter to the appellant, thus the circumstances in which the letter was written render what is said in it more likely to be true. There is no reason to doubt the reliability of Marshall, at least in so far as what he wrote in the letter is concerned. Further, the appellant had an opportunity himself to give evidence challenging the meaning attributed to the letter by the prosecution. If, therefore, the learned judge had considered the check list under section 114(2) of the 2003 Act we would, in our judgment, undoubtedly have admitted the letter.
32. The second letter posted three days after Stanislas was murdered was written by the appellant. Had it not been for the fact that the appellant was in custody at the time he wrote the letter, the only objection the defence could have taken to the admission of the evidence is on the basis of relevance. That test is clearly satisfied. It shows that the appellant knew Stanislas at the time of his murder, again rendering his identification by Lucy a highly unlikely coincidence.
33. The prosecution were compelled to make an application to adduce evidence of the appellant's bad character, simply to permit the evidence to be adduced, since it is demonstrably written from prison. The judge did address and consider in detail, in giving his ruling, the reason why in his view the letter written by the appellant should be placed before the jury.
34. The appellant submits that there is no evidence about the meaning of the letter. But the letter is written in English, albeit street slang, and its meaning was well within the understanding of the jury. Again, if he wished to do so the appellant could himself have given evidence about what the letter meant; he chose not to do so.
35. The application to adduce the evidence came, it is true, late in the day in the course of the trial itself. Since it was the appellant's own letter there can be no possible disadvantage or prejudice to him in admitting the evidence late. In our judgment the letter did have a probative value, which outweighed any prejudicial effect that the appellant was in prison at the time he wrote it. The judge rightly admitted the evidence relating to both letters and his decision to reject the submission of no case to answer must be considered by us against that conclusion.
36. In rejecting the submission of no case the judge reminded himself that the opportunity for detailed facial examination by Lucy was limited because of the balaclava which concealed most of the man's face and, in any event, the time available for Lucy to see the man she later purported to identify was, on any view, short.
37. Further in evidence Lucy conceded the possibility of a mistake whilst asserting that she was, to use her words, "pretty sure that she was right". The judge analysed in considerable detail in giving his reasons the weaknesses of Lucy's identification, the description she had given in the 999 call, and the differences between that account and the statement she later made to the police and gave in her evidence. However, he concluded that all the matters relied on by the defence were matters which the jury could properly take into account in deciding whether they were sure that Lucy's identification was correct, but not of such a nature that he was obliged to remove that decision from them. He concluded that there was clearly support for Lucy's identification first, in the letters which went to demonstrate a motive and, second, from the cell site analysis of phone calls which provided material indicating that on three separate occasions phones attributable to the appellant are to be found making or receiving calls, or messages, in places where one would expect the appellant's phone to be if he was using it, and associated with the events that surrounded the killing.
38. It was not, of course, incumbent upon the jury to reach an adverse verdict so far as the appellant was concerned, but the judge was satisfied that it was safe to leave the case to them, there being, for the reasons we have sufficiently rehearsed, considerable supporting evidence suggesting the accuracy of that identification.
39. It is further submitted on behalf of the appellant that an application should have been made at the trial to exclude the evidence of the identification of the appellant by Lucy on the ground that the identification procedure was fatally flawed. No such application was made at the trial because, so we understand, those then representing the appellant took the view that the circumstances surrounding the identification procedure went to the weight to which the jury should attach to the identification, rather than to its admissibility.
40. It is now said that there was a breach of Code D of PACE. We have already rehearsed what Lucy said when interviewed when asked whether she would recognise either of the men in the silver Golf. The appellant submits that that answer demonstrates that she was asserting clearly she would not be able to recognise the light skinned balaclava wearing passenger, the man asserted to be the appellant. She did not say that in terms and, in our judgment, the appellant's submission on this ground was seeking to over-interpret a single answer by a 15-year old girl in interview.
41. In our judgment the police would actually have acted in breach of Code D had they not held an identification parade. Paragraph 3.12 of the Code states, omitting irrelevant words:

"Whenever ... there is a witness available, who expresses an ability to identify the suspect, or [our emphasise] where there is a reasonable chance of the witness being able to do so ... an identification procedure shall be held unless it is not practicable or it would serve no useful purpose..."

42. That paragraph imposes a requirement on the investigating officers. However, paragraph 3(13) provides that such an identification procedure may also be held if the officer in charge of the investigation considers it would be useful. It is quite apparent, therefore, that the Code makes it clear that it would be unnecessary for the witness to express an ability to identify the suspect before it becomes a requirement to hold an identification procedure. The fact that Lucy said in interview that she thought she would probably recognise the men, probably the darker one, and later identified someone other than the person that she had indicated in interview she thought she would probably recognise, does not make her evidence of that identification inadmissible providing the identification procedure is properly carried out.
43. It is an ambitious submission, made on behalf of the appellant, that it was, in the circumstances of this case, perverse of the officer in charge of the investigation to consider that inviting Lucy to view the VIPER film in relation to the appellant would be useful and, in our judgment, that submission simply cannot be sustained. The investigating officer was fully entitled to ask that the identification procedure should take place. In our judgment any application to exclude the evidence, on the basis that the procedure was flawed, would inevitably have been rejected.
44. Finally, Mr Grunwald draws the court's attention to the decision in Davidson relating to the anonymity granted to Lucy at the trial. The appellant further points to the guidance given in this court in Mayer and Others [2008] EWCA Crim 1418. Mr Grunwald does not specifically espouse his submission under that authority, but does point out that this is a case in which the sole, or decisive, evidence indicating the defendant comes from Lucy.
45. Accordingly we should look with care at the granting of anonymity to her in relation to the guidance now available to this court. We have done so. Steps were taken to protect the anonymity of Lucy. In the event, those steps, in our judgment, failed to protect her anonymity. It is quite unnecessary in a judgment such as this to articulate the reasons why that anonymity was not successfully protected. We are confident that the appellant's advisers knew perfectly well who Lucy was by the time of the trial. If we are wrong about that, the circumstances surrounding the granting of the anonymity are such that the judge would, in our judgment, with whatever guidance is now available to him, still have made the anonymity direction that he gave.
46. We are quite satisfied that the evidence of the identification procedure was properly admitted. We are equally satisfied that it was supported by independent evidence both in respect of the motive provided by the letters and by the cell site analysis. The extent to which it was supported by either, or both, of those independent pieces of evidence was a matter for the jury to determine. The judge rightly left it to them to reach their conclusions after a full, fair and detailed summing-up.
47. In those circumstances we are satisfied that this conviction is safe and the appeal is accordingly dismissed.