England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT WOOD GREEN
HER HONOUR JUDGE J HARRIS
T20087011

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/10/2010

Lord Justice Rix :

1. On 2 January 2008 an altercation took place in the parking area of an estate in Tufnell Green in London, outside Hollins House where the defendant at trial, here the applicant, Rohan Dodd, lived on the ground floor with his partner and her son, Ralston Ward (whom we will call the "son"). The altercation involved Dodd, the son, and the son's friend, Adam Rahman (whom we call the "son's friend"), on the one side, and the complainant, Vernal Bolston, and his partner, Jade Thomas, on the other side. By the end of the incident, Bolston had been seriously injured. He had one hundred and four stitches in his arm, twenty-nine stitches on his head, fourteen stitches and a stab wound in his back, two broken fingers and a broken cheekbone. At the time of the incident Bolston and Thomas had their three-year old son with them. Dodd had no injuries other than a cut on the sole of his foot: he had come out of his home in socks, without shoes, and the prosecution said that he had received the cut from broken glass which was lying around from car windows which had been smashed in the course of the incident, whereas the defence said that the cut had been received when he kicked out at a knife held by the complainant. The complainant's most serious single injury was the knife wound in his back. The severe lacerations to his arm appear to have been caused by Dodd's Staffordshire bull terrier during the incident.
2. Despite the contrast between the injuries received by the complainant and Dodd, the latter's defence at trial was self-defence. He said that throughout the altercation the complainant had been the aggressor and had been armed with a knife and a Krooklock, one in each hand. He was merely responding to the complainant's violence. He had disarmed the complainant, and the knife wound had happened by accident in the course of a violent struggle. Significant parts of the incident were captured on a CCTV camera from a neighbouring street, but, tantalisingly, the CCTV record was incomplete in two respects: first, because the camera was rotated at intervals and so captured the relevant scene only intermittently; and secondly because, in this court, but not at trial, a lost disc prevented us from seeing the start of the trouble. Nevertheless, the CCTV evidence is that of an objective, impartial, eye-witness, and of great importance. The judge, Her Honour Judge Harris, described the CCTV evidence as follows:

"The CCTV evidence is not complete and it cannot therefore provide all the answers to the questions you have to decide. From the CCTV evidence alone we know when it started, we know different sections of it and we know when it ended but we don't know everything in between."

3. Dodd, the son, and the son's friend, stood trial before Judge Harris and a jury at Wood Green Crown Court and were convicted on 12 December 2008 as follows. Dodd was convicted of causing grievous bodily harm with intent (section 18, count 1), violent disorder (count 2) and aggravated failure to keep a dog under proper control (count 4). The son's friend was also convicted of the section 18 and violent disorder offences. The son was acquitted of the section 18 charge but convicted of violent disorder. Dodd was sentenced to six years' imprisonment on count 1 and 3 years concurrent on count 2, with no separate penalty on count 4. The son's friend was sentenced to 3 years' detention on count 1 and no separate penalty on count 2. The son was sentenced to a one year detention and training order. The dog was put down.
4. Dodd applied, out of time, for leave to appeal against conviction and sentence. His application for leave to appeal against sentence was refused by the single judge and has not been renewed. His applications for leave to appeal against conviction (and for an extension of time) were referred by the single judge to the full court. The application for leave to appeal against conviction itself turns on an application to admit further evidence, the evidence of Edward McInerney, a neighbour who had witnessed some at least of the altercation from the balcony of his mother's flat on the second floor of Hollins House. Mr McInerney (among other neighbours, including his mother) had given the police a detailed witness statement. His is dated 3 January 2008, the day after the incident. All those witness statements were in the hands of the defence for the purposes of trial. The defence had subsequently to receiving the police statements taken their own statements from many but not all of those witnesses, including one from the mother, Mrs McInerney. They did not take a statement from Mr McInerney, but they had his police statement. They served a witness summons on Mrs McInerney because, in the end, she was not willing to give evidence, but at trial, after Dodd gave his evidence, the defence decided not to call her (see below).
5. At the hearing of these applications, new counsel, Mr Kovalevsky QC, instructed by new solicitors, submitted that Mr McInerney's evidence was credible and as such rendered Dodd's convictions on counts 1 and 2 unsafe. There was, he argued, no proper explanation of the defence's failure to call Mr McInerney. If he had given evidence, the jury may well have been at least unsure about the issue of self-defence, as he would have supported Dodd's account about the complainant's aggression and use of a knife and the Krooklock.
6. The conviction on count 4 merely turned on the question of who was the owner of the dog. Dodd lost on that issue, and there is no appeal from that verdict.
7. There is no appeal or application on behalf of the son or the son's friend. They were 15 at the time.
8. There is no application on behalf of Dodd for the admission of anything more than the evidence of Mr McInerney. Thus there is no application to admit the evidence of Mrs McInerney or of any of the other neighbours who gave statements to the police and the defence.
9. We heard Mr McInerney give evidence de bene esse, for what it was worth, to inform ourselves whether we should formally admit his evidence for the purposes of section 23 of the Criminal Appeal Act 1968. We also heard a witness on behalf of the Crown, Ms Schantel Felix, a legal representative from O'Keefe Solicitors, Dodd's solicitors at trial, in rebuttal.
10. At the hearing of these applications, we refused them, while reserving our reasons. These are now our reasons for our refusals.

The trial

11. The complainant gave evidence that on the day of the altercation, 2 January 2008, his partner Jade Thomas told him that the tyres of her Punto motorcar had been cut. They suspected the son and his friend, and the complainant went over to speak to them outside Hollins House. He said that he carried no weapon and threatened no violence, other than to say that he would do the same to Dodd's tyres. This was at almost exactly 4 pm. The whole incident was to last some eight minutes from start to finish. The beginning of the incident was caught on CCTV, and it is this first section of the CCTV evidence that has gone missing. However, Mr Fleming, Crown counsel at trial and in this court, told us that the CCTV had showed the complainant without any weapon: on the contrary he could be seen pointing a finger at the youths. On the other hand the son's friend can be seen carrying a metal pole. The two youths walked around the complainant. The judge referred to this initial CCTV evidence as follows in her summing-up:

"It is clear from the CCTV evidence that Vernal Bolston goes over to Hollins House to speak to Adam Rahman and Ralston Ward. It is at this point that the defendants all say that he had a knife and that he threatened them with a knife.

Counsel have addressed you on the body language of Vernal Bolston and of the two defendants at this stage…Can you see a knife at this point? Can you see the metal pole?"

The judge says "a knife" because, although the defence say that the complainant was carrying one, the CCTV pictures show no knife. The judge says "the metal pole", because the pictures show the son's friend to be carrying one.

12. The complainant's evidence continued to the effect that he then returned to rejoin his partner at their car, while the two youths ran off to the son's home. (It was there that Dodd was to say they complained of having been threatened with a knife by the complainant.) A little while later the youths and Dodd approached the car. Dodd was holding a baseball bat type club and a knife. (At the end of the incident a bat is seen on CCTV being handled by Dodd, when he throws it aside, and by the son's friend, when he carries it away.) All three approached the Punto, and Dodd smashed the passenger side window of the car with his knife, while the son smashed the driver's side window with an implement and the son's friend was threatening with his metal pole.
13. This part of the incident occurred at about 4.04 pm and was again caught on CCTV. These pictures survive and have been watched carefully and frequently by us. They show: (1) the son's friend, dressed in black, appearing from the right (on the driver's side of the Punto) with the metal pole, first hidden behind his back, and then brought out in front of him in an aggressive fashion; (2) the complainant responding by chasing the son's friend away from the car by raising a Krooklock; (3) when the son's friend retreats, the complainant falls back, but when the youth approaches again, the complainant again seeks to keep him away with the Krooklock; (4) as this is happening, the son, dressed in light grey, approaches also from the right, but closer to the car, and he also has some implement in his hand, which he uses to strike at the open driver's door window, close to where Ms Thomas is standing; (5) at approximately the same time, but almost obscured by foliage, a third figure can just be seen by the passenger side window. This, said the complainant was Dodd breaking that window with his knife handle. The windows cannot be seen to be broken on the CCTV pictures, but there was photographic evidence that they were, and that there was broken glass strewn on the ground as a result.
14. As the judge said in her summing-up of this episode:

"We can see Mr Bolston running after Adam Rahman with the Krooklock raised above his head. What is he doing there? Is he attacking Adam Rahman and Ralston Ward or is he warding them off?"

In our judgment, it is plainly the latter.

15. At that point the CCTV camera swings away in a different direction and the CCTV evidence is lost until after 4.08 pm. However, before the camera then swings back again to cover the scene, passers by in the street can be seen watching what is going on.
16. The complainant's evidence about what was happening in the meantime was as follows. Dodd hit him twice on the head with the blade of his knife. The two men grappled and fell to the ground, the bat fell out of Dodd's hands and the son picked it up and was hitting the complainant with it. Then the complainant was stabbed in the back by the son's friend, and kicked in the face by Dodd. Then the dog became involved. He tried to pick up a knife to ward off the dog, but he was knocked unconscious. He said he did not come to until he was in hospital, but later CCTV pictures (after the fight was over) show him sitting on a wall (possibly dazed) as the police arrived. The last CCTV clip of importance shows the very end of the altercation with Dodd trying to manhandle the dog away. We can see that it is only when a woman (Dodd's partner) throws water over the dog that its grip was loosened thereby enabling Dodd to carry the dog off its victim. Thus although the build-up to the fight can be seen on CCTV, the fight itself is missed, until the very end, when the complainant on the ground being savaged by the dog cannot even be seen.
17. The judge carefully picked out and told the jury about certain discrepancies in the complainant's evidence, as demonstrated by the CCTV pictures. Those discrepancies show that his evidence was subject to error (or, had the jury so determined, worse), but the fact is that the CCTV (both the second clip which survives, and the initial clip which has not survived) plainly shows that, in the build-up to the fight, the only weapon to the complainant's hand is the Krooklock, and he uses that purely defensively and without laying it on either of the youths.
18. Ms Thomas gave evidence generally in support of the complainant. She also said that there had been a prior history of the slashing of the Punto's tyres. She described Dodd as appearing with bat and knife. She saw Dodd smash the car window. She said that she had picked up the Krooklock from the ground during the fight and was using it to try to get the dog off the complainant. The judge made the point that in doing so she may have herself caused some of the complainant's injuries. She also went and used the Krooklock to smash some of the windows of Dodd's partner's car (a VW Golf).
19. Three knives were found by the police, two with the complainant's blood and DNA on their blades.
20. The three defendants were arrested and interviewed. Dodd gave a no comment interview, while the two youths gave their versions of events before being shown the CCTV pictures, which embarrassed them. At trial only Dodd gave evidence, the youths did not. Dodd had to put up with a direction about his silence in interview, the youths had to put up with, or had the advantage of, a lies direction.
21. Dodd's evidence was as follows. He was at home when the son came in and told him that the complainant had threatened him with a knife. He went straight out, as he was, without shoes, and without any weapon. He observed the complainant by the Punto with the Crooklock and a knife "up his sleeve". (The judge comments on the Crown's submission that Dodd, who had reserved his defence by giving a no comment interview, had thereafter "tailored" his story to what the CCTV showed. This reference to the knife being "up his sleeve" may be an example of that tailoring, for the CCTV does not show the complainant with a knife.) The two youths were still in his home, or behind him. The complainant was saying, "I am going to stab, I am going to kill." He saw the complainant hitting his partner's Golf with the Krooklock. That was what caused him to go over to him and remonstrate with him. He kicked at the knife in the complainant's hand and received a wound to his foot. He then saw his son with a bat (the bat is not explained) and took it off him and hit the complainant with it on the chin. He got hold of the complainant's knife and accidentally stabbed him when the complainant fell back towards him. He did not call the dog over. He did not break the car's window. He hit the complainant, but only in self-defence.
22. After his evidence, he had a conference with his counsel, then Mr Colin Wells. There was a discussion about whether any further evidence should be called. We have the notes of that conference, for Dodd has waived privilege. Dodd was in favour of calling Mrs McInerney, but counsel was not. He was fearful that she could be "a potential time bomb". He was particularly worried about the 999 call that she made. That call was not before us at the hearing, because, after all, Dodd's current applications did not concern the decision not to call Mrs McInerney, and there was no application in this court to call her to give evidence. However, there was apparently concern on the part of counsel of matters which could be heard in the background of the 999 tape (from outside Hollins House). If she were called, the prosecution would play the tape and the "Jury will hear the incident on 999 tape". In any event Mrs McInerney could not help either with the start of the incident or with the allegation against Dodd that he had come on the scene with a bat and a knife. In the end Dodd accepted counsel's advice and endorsed his acceptance on the back-sheet of counsel's brief. The endorsement reads:

"I accept my counsel's advice not to call Katherine McInerney. I do not wish to call Katherine McInerney because of what I have now heard on her "999" call compared to her witness statement given to Police and the fact that the prosecution will cross examine upon the "999" call in particular the references to the dog and the moving of the knife."

23. There was no discussion about calling any other evidence. The only other witness summons served by the defence was on a potential witness by the name of Ed Smith. No defence statement had ever been taken from Edward McInerney and no witness summons had ever been served on him. The reasons for this were explored before us (see the next section of this judgment).
24. Dodd appears to have regretted taking his counsel's advice as soon as he was convicted. He already had a new team of solicitors and counsel in place for the subsequent sentencing hearing.

The defence and Edward McInerney

25. The police statement of Edward McInerney was served on the defence with other unused material. At a conference with Dodd on 22 May 2008 there was a discussion of these statements and their potential for the defence. The names of Mrs and Edward McInerney are underlined in capital letters. On 30 May 2008 a letter from O'Keefe Solicitors to Dodd said: "I would be grateful if you could contact the following witnesses in order for a statement to be taken from them". Four names were listed of which Mrs and Edward McInerney were the third and fourth. On 16 June 2008 O'Keefe Solicitors wrote Dodd a further letter to prompt him. On 2 July 2008 Dodd provided O'Keefe Solicitors with a list of the contact details of those four witnesses, and also of Ed Smith and "Caretaker Gladstone" who lived at Asker House, another building on the estate, which was where the complainant and his partner lived.
26. Following the waiver of privilege, Mr Wells was asked inter alia why Edward McInerney had not been called. His "Observations" dated 23 July 2009 included the following:

"In answer to a request from David Cundy of Attridges, the appeal solicitors,

"An explanation as to why Edward McInerney was not a) called as a witness b) considered to be called (if he wasn't considered) c) not summonsed."

I provided O'Keefe's with the following answer, by e-mail dated 28 February 2009…

"2. The council estate caretaker was not called as Rohan Dodd instructed us that he was "friendly" towards the complainant giving him preferential car parking treatment in the estate – Rohan Dodd felt he would not assist the defence."

27. This was an error, for the caretaker in question was not Edward McInerney and Mr Wells had somehow confused the two. The distinction between them was plain on Dodd's own list of contact details, but whereas we have had that list, it does not seem that Mr Wells did. Counsel's confusion might have suggested a more serious error prior to trial, but that was not explored on the part of the defence by reverting to Mr Wells. Instead the Crown has explored with the legal representative at O'Keefe Solicitors who had conduct of the obtaining of defence statements from the McInerneys, mother and son, what occurred. That was Ms Schantel Felix. We have her case notes, and we have heard her give evidence.
28. What emerged was as follows. On 30 September 2008 Ms Felix telephoned Mrs McInerney to make an appointment for 3 October for a personal interview at her home in Hollins House in order to take her statement. Mrs McInerney said that she would ask her son Edward about his giving a statement and would tell Ms Felix his answer when they met. All that is evidenced by a contemporaneous note. On 3 October Ms Felix attended on Mrs McInerney and her defence statement was taken. Edward McInerney was not there on that day, and his mother told Ms Felix that he did not want to be involved. There is no note of that, however that was Ms Felix's evidence. Ms Felix said that she relayed that information to her partner, and he told her that Dodd was not concerned about Mr McInerney. On 27 November Ms Felix forwarded to Mr Wells the witness statements of five witnesses, of which Mrs McInerney's was one. The trial began in the first week of December 2008. On Friday 5 December, after the end of the court hearing, there was a discussion with Mr Wells, noted by Ms Felix, about the need for witness summonses on Mrs McInerney and Ed Smith for their attendance at court for the following Tuesday. None of the other potential witnesses from whom defence witness statements had been taken were evidently going to be used. In the end Ms Felix does not think a witness summons for Ed Smith was used.
29. On 6 December 2008 Ms Felix attended on Mrs McInerney to serve the witness summons on her. There is no surviving note of that attendance, but Ms Felix said that it was the first time she had served a witness summons and she had a good recollection of it. It was common ground that the summons was served on Mrs McInerney that day. On that occasion Edward McInerney was there and Ms Felix spoke to him about giving a witness statement but he did not want to be involved. He said that he had to live on the estate. The reason for the witness summons on Mrs McInerney was that she was unwilling to be a witness unless required to attend. The Friday night discussion with counsel had talked of a possible application for the use of screens. There is a note of a brief conference with Dodd on 9 December. A decision was taken not to use Ed Smith, with which Dodd agreed. The fact that Mrs McInerney had been summonsed to attend was mentioned.
30. Ms Felix gave her evidence well, and was clearly telling the truth to the best of her recollection.

Edward McInerney

31. We heard Edward McInerney give evidence. His demeanour was satisfactory, but his evidence was poor. He said that he was drawn out on to his mother's balcony by noises below which had been going on for a couple of minutes. He said that he saw the complainant and his partner acting aggressively and trying to draw another man and woman who were by their gate (Dodd and his partner) into a fight. The complainant was hitting a Golf with a steering lock (the Krooklock). Dodd came quickly out of his gate and a fight ensued. When the complainant dropped the Krooklock, his partner picked it up and started using it in the fight, hitting downwards. Dodd's dog ran over, and then the fight stopped. When asked who was the aggressor, he said the complainant was, definitely, and he referred to the Krooklock. He did not refer to a knife. It was only when he was asked if the complainant was using anything else, that he said that at the very start he was holding a knife, but he did not see him use it. As for Dodd, he did not see anything in his hands. So much for the examination in chief.
32. When cross-examined and asked why he had only mentioned a knife on subsequent questioning, he said that he did not understand, and he did see a knife. He did not see the Punto and does not remember it. He never saw the complainant or his partner by the Punto. He knew Dodd's son, but did not see him at all. He only saw Dodd get into a fight, and did not see the son or the son's friend. He heard no sound of smashing glass. The fight took place behind the Golf. He never saw Dodd with a weapon, never saw Dodd hit the complainant, never saw Dodd struggle with the complainant with a knife. He did not see Dodd pull his dog away. He saw no baseball bat at any stage. It all happened very quickly.
33. As for the matter of his giving evidence for the defence, he would have been willing to do so. He never said he did not want to be involved, and had never been approached about being a witness in the case. He knew however that his mother had gone to court.
34. Mr McInerney had sworn a second witness statement dated 11 April 2009 for the purposes of these applications. It was a brief statement, the essence of which was that his evidence about the incident itself was to be found in his police statement. He added two further matters in it. One was that he was "probably the first person to see the incident and I saw what occurred from an early stage of the incident". That, however, was clearly not correct. He saw nothing of what the CCTV clips show was the prelude and build-up to the fight in which the complainant received his injuries. Indeed he saw nothing of what the three CCTV clips showed. The other matter was that "I was never formally contacted by solicitors for Rohan Dodd to ask me if I was willing to give evidence at his trial." He was asked about that "formally" in cross-examination, and elaborated to say that he was never asked informally either.
35. There were therefore at least three major difficulties with his evidence. First, he did not see how matters began but appears to have come out on to the balcony only as the fight between Dodd and the complainant was about to break out in earnest. Thus he did not see the initial encounter between the complainant and the two youths (the subject matter of the first, missing, CCTV clip), nor did he see the youths return to the son's home. Above all, he did not see what the second CCTV clip clearly shows was the immediate prelude to the most serious part of the fight, which was the two youths and Dodd surrounding the complainant and his partner next to their Punto and the smashing of the Punto's windows. Furthermore, he never saw the youths at all, even though they were clearly to be seen on the CCTV both before and after the fight itself; nor did he see Dodd pull his dog off the complainant and carry him away, which is also clearly visible on the CCTV. In other words, although the CCTV clips covered only part the incident as a whole, Mr McInerney's evidence was impossible to reconcile with what the CCTV did show. He said that "it all happened very quickly", but the CCTV shows that the incident as a whole (although not the fight itself) took place over 8 minutes.
36. Secondly, he gave no evidence about the complainant wielding a knife until he was almost asked a leading question about it. He had only previously mentioned the Krooklock. We know, as the CCTV clip had shown, that the complainant had used the Krooklock defensively in warding off the two youths. There is no sight of a knife in the complainant's hands at this point. We know, for the complainant's partner said so herself, that she had used the Krooklock during the fight in support of the complainant, and that she had used it after the fight to smash the windows of the Golf. There was no evidence before us of any other damage to the Golf.
37. Thirdly, his evidence about not being asked to give a witness statement was unsatisfactory in the light of the clear evidence of Ms Felix. Her evidence was supported both by such records as there were and by the inherent probabilities of the matter. We know that Edward McInerney's name was on the list of witnesses to be approached for defence witness statements. We know that all the other names on the list (apart from the caretaker) were approached for witness statements. We know that Mrs McInerney promised in her telephone conversation with Ms Felix of 30 September 2008 to ask her son about giving a witness statement himself, and that the mother told Ms Felix on 3 October that he did not want to be involved. And we know from Ms Felix that she saw and spoke to him on 6 December 2008 when serving his mother with the witness summons. It is inherently probable that his mother, having been asked by Ms Felix to speak to her son, and having told Ms Felix that she had done so, had indeed discussed the matter with her son, who was living with her at that time.
38. We were therefore quite satisfied that, for whatever reason, Edward McInerney's evidence was not capable of belief and/or was of no use for determining the events .
39. Section 23 of the 1968 Act mandates us, in considering whether to receive any evidence which was not adduced at trial, to have regard in particular to, inter alia, whether the evidence appears to be capable of belief, and whether there is a reasonable explanation for the previous failure to adduce the evidence. We have already explained why Mr McInerney's evidence was not capable of belief. We also considered that there was no reasonable explanation for the failure to adduce it. We reject the explanation that there was confusion between Mr McInerney and the caretaker. The fact is that, out of a well-considered possibility of calling a number of witnesses who had given statements to the police, the defence at trial gave serious consideration only to the case of Mrs McInerney, and in the end, albeit despite Dodd's misgivings, decided not to call even her. There is no attempt in these proceedings to rectify that decision not to call her. It seemed to us that the attempt now to call Mr McInerney was merely an attempt to revisit the tactics of the defence for the purposes of the trial. There was no reasonable explanation for the previous failure to adduce his evidence.
40. In any event the convictions were entirely safe. The jury were carefully directed on the issues between prosecution and defence, and on the flaws in the complainant's evidence. There were in particular assisted by the CCTV extracts, partial as they were. On Dodd's account of self-defence, there was no explanation for the complainant's serious injuries. There was no explanation of the three knives found, no less than two of them with the complainant's blood on their blades. There was no explanation of the part played by the son and the son's friend, each of whom was seen advancing on the complainant, his partner, and their car, with a weapon in the hands of each. There was no explanation of the presence at the scene, shown on the CCTV at the end of the incident, of the baseball bat, which Dodd denied carrying out from the house.
41. We were entirely satisfied that in all these circumstances there were no arguable grounds for granting leave to appeal, and we therefore refused the applications before us, for the reasons now contained in this judgment.