England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Beaumont QC
T20097232

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/06/2011

Lord Justice Moses :

1. On two separate occasions, 4 May 2006 and, after an appeal and re-trial, on 14 December 2009, this appellant was convicted of the murder of Jahmal Moore. Those convictions occurred following two quite different narratives advanced by the prosecution. In the first trial the prosecution alleged that the appellant with others had planned the murder of Moore following a series of linked, "tit-for-tat" shootings triggered by the murder of Leon Labastide in 2004. Following his successful appeal and the Court of Appeal's order that he be re-tried, the prosecution alleged that the appellant and others had planned to murder a man called Sean Cephanis. They travelled to Willesden where they expected to find Cephanis but he had left shortly before. The appellant, with three others, then saw Jahmal Moore nearby and spontaneously decided to shoot him instead.
2. The explanation for the Crown's radical change of stance stems from its decision to call a witness at the re-trial called Darren Mathurin. In his evidence he suggested that this appellant was party to the conspiracy to shoot Cephanis but, so far as the witness was aware, had not participated in the spontaneous decision to shoot Jahmal Moore. The jury plainly rejected Mathurin's evidence.
3. The essence of this appeal lies in the appellant's submission that the decision of the Crown to rely upon Mathurin at this appellant's re-trial was unfair and unjustifiable: it had the consequence that the re-trial was unfair and the conviction unsafe. In order to understand the tortuous course which led to the Crown's change of stance and the appellant's conviction at a re-trial on a significantly different basis from that which founded the first trial, it is necessary to set out the sequence of events and trials relevant to this appellant's conviction.
4. On 23 May 2004 Labastide was shot dead by men called Gavin Grant and Gareth Downie in pursuance of a conspiracy to murder, to which a man called Damian Williams was a party. The murder was in retaliation for a raid on the house of another man called Romaine Whyte the evening before, 22 May 2004. Whyte was not there but relatives and friends were forced to jump from a window and flee.
5. The murder of Labastide on 23 May 2004 was followed by a sequence of retaliatory shooting between September 2004 and 3 January 2005. Nobody was ever charged in relation to those incidents but they were followed by threatening letters received by Grant, Williams and others. Those letters were reported to the police.
6. Just before 11.30 p.m. on 13 January 2005 Jahmal Moore was shot by a number of men outside his aunt's house in Griffin Close, Willesden. Two days before, there were a number of telephone calls between Williams, Grant and Whyte. Eleven hours before the shooting on 13 January there were sixty-two calls between the phones of the same individuals. Between 10.13 and 10.47 p.m. there were seven calls between the appellant's phone and two phones alleged to belong to Grant. In the one and a half hours following, there were eight calls made from the appellant's phone to Mathurin's phone.
7. Cell site evidence tended to establish that Grant and Whyte were together at 10.28 and thereafter moved to the same cell area as the appellant and Mathurin. The cell site evidence was consistent with the appellant and Mathurin moving to the location where Moore was shot between 10.52 and 11.28 p.m. CCTV footage showed four suspects moving as a group towards the scene of the shooting. The deceased, who was shot through the chest, suffered a further four gunshot wounds. At the scene the police recovered sixteen spent cartridge cases: three guns had been used. There was no evidence of a fourth gun.
8. The following day, 14 January, a further fifty-one calls were made between the phones of Mathurin, Williams, Whyte and Grant, a man called Charles Bailey, whose vehicle was linked to the murder, and a man called Sean Bennett and this appellant.
9. Mr Katz QC, on behalf of this appellant, accepted that there was substantial evidence that the appellant was one of four men responsible for killing Moore. Quite apart from the evidence of the use and location of the mobile phones, there was evidence of two dying declarations made by the victim blaming this appellant. During a 999 call to the emergency services Moore said "Rufus shot me". The appellant admitted he was known as Rufus. When police officers attended the scene two of them said that in reply to the first question "Who shot you?" the victim said "Roberto, Rufus" and when one of the police officers repeated "Roberto" the dying victim replied "Yeah".
10. There was also an eye witness known as Sasha Newcastle who identified this appellant as being amongst the group which shot Moore. Moore was her boyfriend and she was with him when he was killed. She did not identify the appellant straight away but was contacted after the appellant had been arrested and on her way to an identification parade said she recognised the appellant as one of the men who had shot Moore. She identified him in a video identification procedure. She also purported to identify Whyte, picking him out in an identification parade, but before the re-trial retracted her identification.
11. The chronology of trials in which this evidence emerged is as follows. On 4 May 2006 this appellant and Whyte were convicted of the murder of Moore. At that stage the prosecution did not have evidence sufficient to establish the guilt of others. On 1 August 2007 Mathurin was convicted of conspiracy to murder Moore but Grant and Bennett were acquitted of that offence.
12. Following his conviction on 1 August 2007, Mathurin entered into an agreement with the Crown Prosecution Service pursuant to s.74 of the Serious Organised Crime Police Act 2005. Pursuant to that agreement he pleaded guilty to a number of offences including conspiracy with this appellant, Whyte, Grant and Bennett on 13 January 2005, to murder Sean Cephanis. He admitted other firearms offences and drug offences. He agreed to participate in a debriefing process to maintain continuous and complete co-operation throughout the investigation of specified offences, including the murder of Labastide in May 2004 and of Moore in January 2005, and to give evidence in accordance with signed statements.
13. Following that agreement his sentence for conspiracy to murder was referred to the Crown Court for review pursuant to s.74(2)(c) of the 2005 Act and on 5 December 2008 was radically reduced from a sentence of life imprisonment with a minimum term of 16 years to a determinate sentence of 8 years. The sentence took into account other offences he admitted during the de-briefing. Following that agreement Mathurin gave evidence at the trial of Shakah Anderson for what were described as the 'Tudor Rose' murders. Mathurin purported to identify Anderson in a nightclub but, on 7 May 2009, he was acquitted.
14. On 12 June 2009 the Court of Appeal Criminal Division refused the prosecution's application to quash the acquittals of Grant and Bennett of 1 August 2007 for conspiracy to murder Moore on the basis of the information received from Mathurin following his SOCPA agreement.
15. On 16 June 2009 the Court of Appeal Criminal Division quashed the convictions of Whyte and Parchment ([2009] EWCA Crim 1309). The basis upon which those convictions were quashed is set out between paragraphs 18-22 of that decision. The evidence of Mathurin obtained following his agreement with the Crown was fresh and was, as the Court of Appeal Criminal Division recorded, advanced by the Crown not merely as credible but as true (paragraph 18). That evidence showed that there was no plan to shoot Moore but rather the plan was to shoot Cephanis. Parchment was not armed, although the others were. In the light of that evidence there was a distinct possibility that the shooting of Moore was not the consequence of any advance planning but was rather a spur of the moment, fresh joint enterprise. Since the decision to shoot Moore was taken at the last minute, once Cephanis, the original target, had left the scene, the appellant's defence that he did not participate in that shooting was far stronger than it had been at the first trial. At the first trial, the Crown's case was that the advanced planning as evidenced by the mobile phone conversations and the location of those mobile phones went merely to show discussions in pursuance of the plan to shoot Moore. There was no suggestion at that time that there was a plan to shoot Cephanis. Once it was suggested that Mathurin was telling the truth, that evidence no longer supported an advance plan to shoot Moore. The Court of Appeal Criminal Division ordered a re-trial.
16. In that re-trial Count 3 accused this appellant and Whyte of the murder of Moore. An alternative count (Count 4) accused them both of conspiracy to murder Cephanis. That was agreed by the prosecution to be an alternative count. The prosecution had agreed and maintained that it could not ask the jury to convict of both Count 3, the murder of Moore, and Count 4, the conspiracy to murder Cephanis, because the trial was a re-trial in pursuance of the order of the Court of Appeal Criminal Division. Had the prosecution sought convictions on both counts it would, so it is believed, have fallen foul of the principle in R v Hemmings [2000] 1 Cr App Rep 360 that a defendant should be not be in a worse position on re-trial.
17. On 14 December 2009 this appellant was convicted again of the murder of Moore, but Whyte was acquitted of the murder and of conspiracy to murder Cephanis. There were added to the indictment at that trial counts against Grant and Downie for the murder of Labastide, a count against Williams for conspiracy to murder Labastide and related counts of perjury against Grant. The jury was unable to reach verdicts in respect of those counts of murder, conspiracy to murder and perjury and a re-trial was ordered.
18. On 6 January 2010 the prosecution drafted a note dealing with the status of Mathurin as a prosecution witness. That note set out various criticisms of Mathurin and in the light of the verdicts of the jury on 14 December 2009 it recorded that the prosecution believed:-

"that it would be neither appropriate nor in the interests of justice for us to call [Mathurin] in any further trial either of the allegation of the murder of Labastide or perjury by Grant."

19. On 26 July 2010 Grant and Downie were convicted of the murder of Labastide and Williams convicted of conspiracy to murder Labastide. Unlike the trial in which this appellant was convicted on 14 December 2009 Mathurin, in accordance with the Crown's view recorded in the note of 6 January 2010, did not give evidence. It is in those circumstances that the appellant suggests the trial of 14 December 2009 in which Mathurin did give evidence called by the prosecution was tainted and unfair.
20. Mr.Katz submits that there were ample grounds on the basis of which the Crown ought to have reached the view that it would have been "neither appropriate nor in the interests of justice" to call Mathurin at the appellant's second trial on 14 December 2009. Mathurin had, apparently, indicated that he was thinking of entering an agreement with the Crown even at the time of the trial in which he was convicted in July and August 2007. He was only eligible for a review of his sentence by virtue of his conviction for conspiracy to murder and not for murder, for which the sentence is fixed by law and which would have taken him outside the provisions of s.74 of the 2005 Act (s.74(13)). During the de-briefing process, Mathurin showed himself to be truculent and un-cooperative. Mathurin had been relied upon by the Crown in the trial of Anderson but after substantial cross-examination the jury had acquitted. The Court of Appeal Criminal Division had then declined to overturn the acquittals of Grant and Bennett on the basis of Mathurin's anticipated evidence. On his own evidence, Mathurin was not guilty of the conspiracy to murder Moore of which he was convicted and which led to "the deal" with the Crown but was guilty of another offence, conspiracy to murder Cephanis.
21. In light of that material, Mr. Katz submitted that it was unfair to rely upon Mathurin to attempt to prove conspiracy to murder against this appellant and then persist in alleging, as an alternative, an allegation of murdering Moore. Once the Crown put him forward as a witness of truth, it was unfair and illogical to put forward an alternative, of which the jury could only be sure if it rejected Mathurin's evidence. Moreover, if the Crown had declared its later view of Mathurin's reliability prior to the appellant's second trial and sought to revoke the SOCPA agreement, there could have been no justification of continuing to allege against this appellant the murder of Moore.
22. Mr Katz fortified these submissions by reference to a number of prejudicial features of the second trial on 14 December 2009. Mathurin's evidence, disputed by the defence, that the appellant had travelled to the scene of Moore's murder for the purpose of killing Cephanis was bound to instil in the jury's mind a view that the appellant had a predisposition to murder. Even though the jury rejected that evidence, its effect would have lingered in consideration of Count 3.
23. Moreover, the judge exacerbated the problem by failing to add any sufficient judicial warning of his own as to the caution with which the jury should approach Mathurin's evidence. Further, in consequence of the joinder of the count relating to the murder of Labastide, Grant, in respect of whom the jury could not agree, was able to suggest that Mathurin was lying in relation to the conspiracy to murder Cephanis and that the plan was to murder Moore.
24. We accept that, as the Court of Appeal previously recorded, the Crown put forward Mathurin as a witness of truth. But it was not unfair to do so. Whilst he proved to be a wholly unsatisfactory witness, arrogant, self-satisfied and truculent, and the Crown was sensible to abandon him after the jury's verdicts on 14 December 2009, it does not follow that they were bound to do so earlier. Nor was there any unfairness in maintaining the allegation of murder of Moore against this appellant, in the event that the jury rejected Mathurin's evidence. It would not have been in the interests of justice to abandon that allegation in the light of the substantial evidence of the appellant's guilt even though, had the jury thought Mathurin might have been telling the truth, the result might have been different. There was, as we have indicated, substantial evidence on which to convict the appellant of the murder of Moore and we can see no unfairness in continuing to rely upon that evidence, even if the jury rejected Mathurin's evidence.
25. Nor do we accept that that evidence, once rejected, would have prejudiced the jury against the appellant when considering the allegation against him of the murder of Moore. It was made clear to the jury that the allegations were alternative and that they could not convict of both. If there was any misdirection in failing to give any sufficient judicial warning about Mathurin, a failure we do not accept, it has no bearing on a conviction which depended upon the rejection of Mathurin's evidence.
26. Certainly, the course of these proceedings gives rise to a sense that the Crown was able to "have it both ways". In the light of the clear evidence of the appellant's responsibility for the murder of Moore, we see no reason why there was any injustice as a result.
27. We should refer to one further ground which was not advanced by Mr Katz QC on behalf of the appellant but on which the appellant sought to rely. He sought to call fresh evidence from his sister, Sukina Vassall, which, he contended, cast doubt on evidence given at the trial by Moore's fiancée, known at the trial as Sasha Newcastle. She had given evidence at the trial that she had been with Moore that evening. After Cephanis and his friend had left, she walked to the driver's side of his car and unlocked it. Four people walked past, turned, one of the four shouted something and, "they" then started shooting. Two months later she said she saw the appellant amongst the gunmen. She had not told the police earlier because she was shocked and scared. She maintained she had seen the appellant's face.
28. At the hearing of the appeal, Sukina Vassall gave evidence in accordance with a statement she made to her brother's solicitors on 20 April 2010. It was consistent with that statement and we accept it. She said she was going to work at the Science Museum on 23 March 2010 where she started her shift at 11.00 a.m. She saw Sasha Newcastle while she was sweeping near the Apollo capsule. She was with her child. Sukina Vassall asked her whether she believed that her brother, the appellant, had killed Jahmal. Sasha Newcastle responded by shrugging her shoulders. She indicated "no". She said all she saw was shooting, but she did not see the appellant with a gun. She said she was pressured into providing the appellant's name. She was distracted by her daughter but Sukina Vassall did see her again, later that day, and gave her a hug saying "sorry for everything".
29. Whilst we accept the evidence of the witness we do not think it alters the evidence in the case at all. The prosecution never suggested that Sasha Newcastle had seen this appellant with a gun shooting Moore. Sasha Newcastle's understandably sympathetic approach to this appellant's sister does not undermine the evidence she gave at trial.
30. Whilst we accept Sukina Vassall's evidence we do not think the fact that Sasha Newcastle says she was pressured into providing Roberto's name affects the identification she gave earlier. It does not amount to any clear subsequent admission that she did not see him amongst the group, such as to contradict the evidence she gave at trial. Indeed, her apparent admission to Sukina Vassall that she did not see the appellant with a gun carries with it the implication that he was amongst the group from which shots came. We must recall that, as appears from the judge's summing-up, she never was forceful and was plainly reluctant to give evidence at the time when she said:-

"I don't remember now. It's all too long ago. I've been through two trials before this in which I have given evidence about this incident. If I said it in my statement, it's true, but don't ask me about it now."

The judge commented that she did not want to be a witness and did not want to go over an event which left her life in turmoil. The fresh evidence does not affect the safety of the conviction and we dismiss the application for leave to rely upon the evidence. The conviction was, in our view, safe. The appeal is dismissed.