England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		7th December 2010

1. LORD JUSTICE MOSES: This is an appeal against a conviction of attempted murder and having a firearm with intent in which the focus of the appeal is on the effect of a hostile witness who named the appellant as the assailant and subsequently retracted that identification. The questions that arise in this appeal are whether, in the light of that retraction, the judge ought to have withdrawn the case from the jury and, secondly, whether he appropriately directed the jury as to the correct approach to that retraction.
2. The appellant was convicted, as we have said, of attempted murder and having a firearm with intent on 19th November 2008 at Preston Crown Court after a trial. The case had concerned an allegation that a friend of this appellant, Mohammed Beg, had been abducted and beaten up at about six in the evening on Friday 11th April 2008. Just over an hour later it was alleged that this appellant, with three other men, driven by his co-defendant, Zainul James, in a Renault Clio, had gone to a road in Preston where they had shot the victim, Dilbag Singh, in the neck at close range. It was alleged that it was this appellant who had taken the gun there and shot him and that his co-defendant, Zainul James, had struck him as he lay on the floor with a baseball bat. This appellant and Zainul James were then alleged to have got back in the car, to have driven it to playing fields nearby, wiped off fingerprints and then set it alight. The victim survived the multiple gun shot wounds to his neck.
3. The evidence of identification of this appellant depended upon the evidence of Dilbag Singh, although the prosecution asserted that that identification was supported by other evidence which did not concern the complainant, Dilbag Singh.
4. On 12th April 2008 Dilbag Singh made a statement in which he said he did not recognise any of the males involved in the shooting as they were all wearing balaclavas. There was evidence to support his account of the fact that the assailants' faces were concealed. Evidence was given at trial by Sameer Patel and Zakir Patel, who knew the defendants but said that the people who had attacked the victim were disguised. Samir Patel said that the gunman was wearing a balaclava with eye holes and a mouth hole and he could not tell what race or ethnic group he was. Zakir Patel, who also knew the defendants, said that there was something dark, a balaclava or bandana, covering most of his face, although he could see the upper part of the man's nose. So that evidence supported what the complainant said in his first statement. But on 16th April, some four days later, he had spoken to officers investigating the case and was recorded in their notebooks, as they told the jury, as having drawn a map of the attack and agreeing to tell the truth about the events. He said he recognised the driver as the co-defendant of this appellant, called "Zain", and the front passenger as this appellant, whom he knew as "Maj Parvez". He said that neither of them were wearing anything covering their faces, according to the account recorded by the police officers, and that the appellant had got out of the car shouting, "Baggy [that is the name by which the victim was known], you little prick".
5. When Dilbag Singh came to give evidence to the jury he denied that conversation, but he could not deny the fact that a witness statement was made by him the following day, 17th April 2008. In that statement he said "I am going to name two people in this statement, they are Zain and Maj [this appellant]. I have known them for over five years", and he then went on to describe them, ending "This is the true account of what happened to me. The reason I gave a different account the first time was that I was scared for the safety of my family and for my community". To the jury he said that the statement was not his statement, and indeed that he had not signed it and his signature had been forged by a police officer.
6. Some days later, on 15th May, he made a third statement through a solicitor in which he stated that he wished to retract both of his earlier statements and that he had not recognised anyone involved in the shooting. He persisted in that account when he gave evidence to the jury. The prosecution, understandably, then cross-examined him by putting to him not only what the police officers said he had said on the 16th, but also what he had written on the 17th, but he maintained his denial that his purported recognition of the appellant, and for that matter the co-defendant, was the truth.
7. The evidence of recognition was supported to some degree by a further independent witness, a Sue Hutton, but she could really only describe the attack said to have been carried out by the co-defendant of this appellant, namely the driver with a wooden stick, who she described as bare-headed with short black hair, so that was of little support that it was possible to recognise the gunman.
8. The evidence, however, of identification was not the only evidence in the case. There was evidence to associate this appellant with a telephone number, the last digits of which were 5214, which was a number associated with this appellant, particularly by reason of the fact that it had been used before the incident to call both this appellant's girlfriend and another close associate of him. The importance of the association with that number was that telephone cell siting could trace the route of that SIM card from the shooting to the place where the car was set alight. Further, this appellant was associated with the car that was used in the shooting and found burnt out. He was, apparently, a part owner of the car. After the shooting and the firing of the car, a key for that Renault Clio was put through the letterbox of another man, Suraj Singh, who owned the vehicle together with this appellant, in an apparent attempt to support a suggestion that the vehicle had been stolen but the key recovered. Finally, there was of course the relationship of friendship between the original victim, Mohammed Beg, who had been kidnapped, and this appellant.
9. The judge took the view, as he explained to the jury, that none of that evidence would afford a sufficient basis to convict this appellant, but that it was additional evidence which might support the correctness of the identification by the witness Dilbag Singh who withdrew his evidence of identification.
10. In our view, that evidence was powerful evidence to support the correctness of the retracted statement.
11. It is contended, in careful and strong submissions advanced by Mr Siddle, that the judge ought to have withdrawn the case from the jury on two bases: firstly, on the basis of Galbraith that no reasonable jury, proper directed, could convict in the face of the clear retraction of the identification by Dilbag Singh, and, of equal or possibly more importance, on the basis of section 125 of the Criminal Justice Act 2003, which the judge does not appear to have deployed. That section 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 re-trial, discharge the jury."

12. That section was of particular importance in this case where the only evidence of identification came from the retracted written statement. It is said that that retraction, of itself, established that the statement was so unconvincing that it could not be relied upon by the jury.
13. In R v Joyce [2005] EWCA Crim 1785, in a case where an oral identification had been withdrawn, this court accepted that section 125 did not impose a higher standard than that imposed in Galbraith, but described section 125 as "an additional safety valve obliging a judge to direct an acquittal where the previous statements are particularly unpersuasive".
14. In short, it is incumbent upon a judge in a case such as this, where there is a plain inconsistency and a retraction of the only direct evidence of identification, to direct himself as to section 125 and ask whether the explanation advanced by the prosecution for the retraction is such that a jury, properly directed, could rely upon that explanation.
15. The explanation in the instant appeal was clear, namely that the witness was too frightened to persist in naming this appellant. That was a clear issue with which the jury had to grapple and we do not think it would have been right, in the light of the supporting evidence and the explanation given by the witness, Dilbag Singh, for the case to be withdrawn from the jury. In those circumstances we reject that ground of appeal.
16. We then turn to how the judge dealt with the hostility of that witness in his summing-up. The directions clearly called for careful assistance to be given to the jury so that they faced the undoubted inconsistency between what the witness had said at first and subsequently and what he was alleged to have said both orally to the police and was subsequently put down in the written statement. There was no way of reconciling the two versions and the jury had to be directed as to the very great care with which they should approach that question in the light of the known fact that the witness had contradicted himself and no longer wished to maintain his identification of the appellant.
17. Mr Siddle contended that the judge was obliged to direct the jury in accordance with both Golder [1960] 45 Cr App R 5 and Maw [1994] Crim LR 841 in the sense that given that the evidence of Dilbag Singh contradicted itself, the jury could not give any credence to such a witness (see second paragraph, page 842).
18. We reject that submission. The Criminal Justice Act 2003, and in particular section 114, changed the law in an important and radical respect. Even in the case of a witness made hostile by cross-examination on behalf of the prosecution, the statement that the witness retracts may be evidence of its truth and it is for the jury to determine whether the circumstances in which it was made and the contents of the statement are such that, notwithstanding its retraction, it can be safely, despite caution and care, relied upon.
19. In his directions to the jury, the judge, having consulted with counsel before speeches in an entirely correct and appropriate way, did, in our view, make it clear to the jury that they should consider the plain inconsistencies and contradictions in the evidence of Dilbag Singh, and that if they thought that there was no explanation for them they should reject his evidence. He also made it sufficiently plain to the jury that if they rejected Dilbag Singh's identification evidence of this appellant, then the case was at an end. He said:

"So look with particular care at the evidence of identification. If you are not sure that a defendant was correctly identified in Parvez's case by the one witness Singh, and in James's case by Singh and later by Newsham, then the entire case against them must fail because although there is some additional evidence in the case relating to the car, the telephone and other matters to which I shall refer, the other evidence in the case would not be sufficient on its own to found a conviction. It may provide some support to the identifications but it would not be enough on its own for you to be able to say that you are sure that the man who fired the gun was Parvez ..."

20. Later in that part of his directions he reminded the jury to be careful about the weight they attached to what Dilbag Singh had said outside court to the police officers when the jury had no opportunity to hear or see him say that, and subsequently directed them as follows:

"You may regard him [that is Dilbag Singh], because of the inconsistencies between the statements that have been made, as a witness who has been unreliable.

You might regard him as a witness upon whom you would either not place much if any reliance or if you do place reliance upon him you would consider that you would have to be very careful in assessing him and be very cautious before relying upon any part or parts of what he said or what he signed his name to."

21. The directions in relation to this aspect of the case were lengthy. We have to bear in mind that the jury did not read them in the way the Court of Appeal reads summings-up. There was no written copy of this given to the jury and we have to bear in mind the impression that this part of the summing-up would have made upon the jury and its impact on them. Reading it as a whole, and looking at it in its correct context by reading the summing-up as a whole, it is clear to us that the jury were faced with the correct choice, namely, given the inconsistencies, whether they were sure that the account he withdrew was the accurate, reliable and truthful account or whether they were not. That was the fundamental question for them and it was properly left to them.
22. Criticism was made of the judge in that he did not follow the Crown Court guidelines as to how the direction would be given, which were the ones that have now been superceded. Those directions suggested that the judge should say to the jury "You may take into account any inconsistency and the witness' explanation for it when considering his reliability as a witness". The direction went on to deal with the question of the impact of a serious conflict "between the account he gave in court and his previous account. You may think that you should reject his evidence altogether and not rely on anything said by him either on the previous occasion or when giving evidence". The difficulty with that direction in this case is that it was not a question of taking into account any inconsistency and judging the extent and importance of it, the inconsistencies were indisputable, their importance was indisputable. That was not the issue at all for the jury. The issue for the jury was whether they were sure that it was fear that had led the witness to retract that earlier statement or that the earlier statement was truthful and reliable or whether they were not sure. In the latter case the witness was wholly blown and the jury could not rely upon it. If they took the view that the explanation advanced by the prosecution for the retraction was the truth and the explanation for the undoubted inconsistency, then, subject to caution, as we have said, there was no reason why they should not act upon it. In those circumstances the direction advised in the earlier Bench Book would not have been appropriate in this case.
23. For those reasons we have come to the conclusion that the judge did not misdirect or confuse the jury in the directions he gave. In that event, and having regard to the rest of the evidence to which we have drawn attention, we take the view that that ground of the appeal fails and this appeal is dismissed.
24. MR SIDDLE: I wonder whether your Lordships would grant me seven days to consider what your Lordships have said in relation to the second ground of appeal, with a view to inviting their Lordships to consider an application to the House of Lords.
25. LORD JUSTICE MOSES: If you can formulate the issue, we will certainly give you seven days and send it to us in writing.
26. MR SIDDLE: Thank you very much.