England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
(MR JUSTICE BEATSON)
200057643/2

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/01/2011

Lord Justice Leveson

1. On 12 February 2009, in the Crown Court at Sheffield before Beatson J and a jury, this appellant was convicted by majority verdicts of the murder of Brett Blake (10:2) and possession of an offensive weapon (11:1); he was also unanimously convicted of affray. Also by majority verdicts (10:2), Danny Craig Hockenhull was similarly convicted of murder and possession of an offensive weapon. Both men were sentenced to life imprisonment for murder (the minimum term specified under s. 269 of the Criminal Justice Act 2003 being that each should serve 21 years less time on remand) with concurrent terms of 18 months imprisonment for possession of an offensive weapon; Goring received a further 12 months imprisonment, concurrent, for affray. On 2 February 2010, this court, differently constituted, reduced the minimum term to one of 18 years less time on remand. Curtis Goring now appeals against conviction for the offences of murder and possession of an offensive weapon by leave of the full court.
2. By way of short summary, the background to the case was that there was a history of bad feeling between the deceased, Brett Blake, on the one hand and Hockenhull and the appellant on the other (although, in relation to the appellant, this was challenged). On Friday 6 June 2008, shortly before midnight, Hockenhull and the appellant visited the Uniq nightclub in Sheffield. Just before 2.30 am on 7 June, the deceased entered the club and went to the upper dance floor. There was then a confrontation between the deceased and Hockenhull who was seen on CCTV to aim a blow to the neck of the deceased. The case for the Crown was that this blow was a fatal stab wound which severed his jugular vein. Immediately after this incident, the appellant was seen on CCTV moving towards the deceased. The prosecution also contended that he had a shiny object in his hand which it alleged was a knife. A few seconds later the appellant was seen to move into a position adjacent to a large speaker on the lower floor of the club by a corridor formed by a wall on one side and a line of speakers on the other. This was some distance from the upper floor. The prosecution case was that he struck towards the stomach of the deceased with his right hand. Although no knife was visible, the case was that this resulted in what was also a fatal stab wound to the front of his abdomen.
3. The defence case was that the deceased suffered a wound to his abdomen before the encounter with the appellant which, given that he only suffered one abdominal wound, made it clear that he had not delivered this fatal blow. It was also argued that the appellant did not have a knife; he was not identified and the description of the man with the knife did not match him. On the contrary, when the two did meet, the deceased had aggressively come at him and the appellant had put his hand out to fend him off. Thus, the central issue at trial was whether the appellant had a knife and had stabbed the deceased in the abdomen.
4. The primary ground of appeal is that there was no case for the appellant to answer. At the close of the prosecution case, it was put by Mr D'Souza that there was no, or alternatively no sufficient, evidence (all of which was circumstantial) from which the jury could properly infer that the deceased was stabbed by the appellant in the abdomen. It is thus necessary to consider not only the specific eye witness evidence that deals with what happened to the deceased and his condition throughout the incident but also, in order to determine what inferences could properly be drawn, the other surrounding evidence: we focus primarily on the evidence relating to or involving the appellant.

The Evidence

5. As to the background, the prosecution adduced evidence that, on 22 December 2007, there was an incident between the deceased and a man nicknamed "Wasman". This was said to result in the deceased falling out with Hockenhull and, to some extent, with the appellant on the basis that they had failed to support him. On 28 December, there was a further incident in the Sadacca Club, this time between the deceased and (according to what the deceased later reported) the appellant, when each cut the other with a knife. The appellant (later supported by Laqita Godfrey) denied that he had ever cut the deceased or been cut by him, although he accepted that there had been a "face on" or confrontation between the two about a dispute between the deceased and Wasman; he said that this dispute was resolved three nights later on New Year's Eve when he had shaken hands with the deceased at a night club.
6. On 16 May 2008, there was a fight between the deceased and Hockenhull when Hockenhull punched the deceased in the face (leading to his attendance at an A. & E. unit). The appellant was present and grabbed the deceased by the arm saying loudly "I allowed you last time. I let you off" which was taken as a reference to the earlier incident at the Sadacca Club: that evidence was also challenged. There was another incident between Hockenhull and the deceased a few days before the fatal encounter: this was clearly relevant to the case against Hockenhull.
7. On the night of Friday 6 June 2008, a number of people (including Hockenhull and the appellant) met at a public house in Sheffield, eventually ending up in the Uniq night club at just after midnight. At one stage, Natalja Gordon, the girlfriend of the deceased and the mother of his child, telephoned the deceased and told him not to come to the club because of the atmosphere. There was also a conversation between the appellant and Charlene Ramsey (who was Natalja's cousin and had previously gone out with the appellant). She said they talked about the arguments going on with what she described as "all the supposedly S3 clan" and that the appellant had said "Brett's going to get it". She said that she believed he was talking "codswallop" it not being in his nature to be aggressive; when she told him to shut up, he just smiled and said "You watch". It ought to be added that she denied that she had understood the appellant to mean that he was going to 'get' the deceased.
8. Natalja Gordon, who had seen the argument between the appellant and Charlene, asked what the matter was: she thought he replied "I don't want anything with you or your family but your baby father [i.e. the deceased] is a pussy". She added that he asked why her man did not come and speak for himself to which she replied "Why doesn't Danny [Hockenhull] come and speak for himself?" whereupon the appellant said "Danny will" and started sniggering. The appellant remembered this conversation; he explained that he had said the way the deceased was going on it was going to end up that something would happen to him. Another witness (Delsina Wallman) saw the appellant and Natalja Gordon "having words". Beatson J explained her evidence to the jury as the appellant "moving or shaking his right hand, gesticulating with two fingers held up at times, a gesture which she described as a gun gesture and not a gesture". His expression was not a good one; he was not smiling but frowning. She decided to leave the club.
9. It is now necessary first to describe the general layout of the Uniq night club which is a comparatively narrow building with the entrance and cloakroom at one end. To the right of the entrance and beyond the pay desk, there is an area with seating. Down one stair, there is what is described as a corridor between a wall and two speakers, leading to a lower dance floor beyond which up two or three stairs is an upper dance floor. The club is covered by CCTV and the Crown led evidence from Mr Andrew Laws, an expert in the interpretation of images, that it was possible not only to identify and track the movement of the deceased on the CCTV but also to identify the appellant and Hockenhull, along with a number of the other witnesses.
10. As to the identification of the principal actors (based by Mr Laws on a number of indicia), there was no issue between the prosecution and defence. Mr Laws, however, went further: he also gave evidence of his interpretation of the CCTV images as to what transpired; he did so (recognising that he was expressing an opinion) on a six point scale representing levels of support from 'no support' to 'powerful support'. Even 'powerful support' did not indicate scientific 100% certainty.
11. It is unnecessary to detail the entire analysis and we focus on events which impact on the appellant. By way of leading up to his interaction with the deceased, it is worth noting that at 2:29:11 am the deceased was seen to enter the club; at 2:30:31, he walked towards the lower dance floor; at 2:30:38, he was on the upper dance floor. Significantly, at 2:31:17, Hockenhull moves towards the deceased whom he is seen to attack with a stabbing or jabbing movement in the vicinity of his neck at 2:31:22. Two minutes have elapsed since the deceased was seen to enter the club. No witness described any altercation before the incident with Hockenhull and no disturbance involving the deceased is shown on any of the CCTV cameras prior to this incident which was described in the trial as Incident 1. The pathologist, Professor Vanezis noted that the area of this blow was consistent with the position of one of the two fatal stab wounds (to the front left side of the neck, breaching the jugular vein). In addition, blood from the deceased was found on the dance floor.
12. Incident 2 (described from the CCTV timed over 16 seconds between 2.31.28 and 2.31.44) concerned the appellant who is seen to get into a confrontation with another man (Simeon Jones). Mr Laws explained the images as reflecting some sort of melee from which the appellant breaks free at which moment (2.31.44) he is seen to be holding something in his right hand. Looking at a number of images, Mr Laws considered that it had the strong appearance (also articulated as a very, very strong appearance) of a knife. He accepted that he could not speak with scientific certainty but his opinion that it was a knife was unequivocal. He rejected as implausible a variety of other objects (a key fob, silver Rizla packet or mobile phone) which it was suggested that the appellant might have been holding: he did not discount the possibility that it was a bottleneck.
13. Five seconds after the encounter between the appellant and Simeon Jones, the appellant is seen moving to the lower dance floor towards the bar area. At roughly the same time, the deceased was on the other side of the wall and can be seen walking towards the seating area on the lower dance floor. The critical confrontation (described as Incident 3) occurred eleven seconds after the image in which Mr Laws described himself as confident that the deceased was holding a knife. Mr Laws describes these images as showing the left hand of the appellant reaching towards the deceased and his right hand appearing to strike the deceased in his midriff. The body of the deceased then appeared to "arch slightly backwards by the force of the impact". In the light of the position of the appellant's right hand, his position and the position of the deceased, it was his opinion (for which he said that there was strong support) that the appellant struck the deceased.
14. There is no doubt that subsequent pictures reveal the deceased clutching his stomach with pictures showing some staining consistent with blood and blood was found in the area near the speaker (although it must be borne in mind that this incident followed blood having been shed on the upper dance floor). It is important to underline that Mr Laws made it clear that the images were such that it was not possible to see whether the appellant was holding a knife at this stage. The case for the Crown was that it was appropriate to infer that he continued to hold the knife that he had been seen with eleven seconds earlier and that he had used it fatally to stab the deceased in the front of his abdomen, penetrating the intestine, through the vena cava and contacting the vertebrae (as later identified by the pathologist). The case put by Mr D'Souza, later repeated by the appellant, was that the deceased lunged at him and all the appellant did was to seek to fend him off. It was suggested that the arching of the body of the deceased (relied upon by Mr Laws) probably occurred while the appellant was pushing the deceased away.
15. The value of the evidence of Mr Laws, along with its limitations, is reflected in answers which he provided in cross examination. First, dealing with the object held by the appellant, Mr D'Souza put to Mr Laws that Simeon Jones (who did not give evidence at the trial) had made a statement in which he did not speak of seeing a knife and that another witness, Warren Holmes, did not see anything in his hand. He asked whether that affected Mr Laws' opinion. It did not. Mr Laws said:

"We have the luxury in this environment of looking at a permanent record of what actually happened. We have a large number of images that provide a record – whether it is fully accurate or not is up to some interpretation – but they are an incontrovertible record of what happened at that time. As we have already discussed, these incidents are happening very quickly. In my experience, it is entirely normal for witnesses to events such as this not to see something that has happened pretty quickly and, as a consequence, I confine … my comments to the images."

16. Secondly, dealing with Incident 3, Mr Laws explained that although the imagery did not itself allow him to assert that the appellant struck the deceased in the midriff, that was his interpretation or opinion as to what had happened. Mr D'Souza put the proposition (based on the evidence of Mr Lewis Blair to which we shall refer) that the deceased had already been injured in the stomach before this confrontation. Mr Laws replied:

"[I]f there was evidence before the court that allowed the court to conclude that Brett Blake had been injured elsewhere, then it doesn't change to my mind what the imagery tells us. It tells us that at a certain time, in my opinion, Mr Goring had a knife. Some 11 seconds later there was an incident involving Mr Goring and Mr Blake which, in my view, supports the contention that Mr Goring effectively strikes Mr Blake in the midriff. That is my evidence, which really needs to be taken in context with the other evidence in the case by others than me…"

17. The evidence from the CCTV (both visible to the jury and analysed by them during the course of the trial) and the interpretations offered by Mr Laws were not the only evidence of what occurred. In particular, Mr D'Souza relies on the evidence of four eye witnesses, called by the Crown, which he argues is inconsistent with the inferences which the Crown sought to rely on.
18. The high water mark of this evidence comes from Lewis Blair who was working as a steward at the club. He was at the far exit at the back of the club when he heard shouting and screaming on the lower dance floor and went round the back of the speakers and stood just before the seated area. He saw the deceased coming down the corridor made by the wall of speakers, coming towards him clutching his stomach with blood running. He had no doubt that the deceased had been injured in the stomach and thought that he needed medical attention. Two men (who were not doormen but members of the public) were trying to escort the deceased out of the building. He first saw the deceased when he was at least ten feet away with people behind him and someone "jumping around on the back" who ran round the back, passing him and attacking the deceased again. He saw the deceased coming from the crowd by the stairs to the upper dance floor. He (Blair) was standing on the lower dance floor near the dummy CCTV camera on the speakers. He saw a man make a motion towards the deceased's mid belly area. He could not see if the man was holding anything at that stage. The man could have caught the deceased on the arm. He saw the deceased clutching his stomach before he saw a man in a white t-shirt going for him. He was shown the CCTV of Incident 3 but said he could not be sure if this was the incident he had seen.
19. Mr Blair said that the man in the t-shirt was the man who later stabbed him (Blair). He described the attacker as having a half gold tooth, of medium build with a broad nose, 5 ft 9 ins – 5 ft 10 ins and of mixed race with short if not shaved hair. He was unable to identify his attacker at a VIPER identification procedure.
20. When cross examined by Mr D'Souza, Mr Blair said that he could not be sure if the person who stabbed him was the same person who had made a stabbing motion at the deceased although he acknowledged that in his interview he had said that there was no doubt and that "if it says it on this paper then that's the truth". He confirmed that at the time he saw the deceased emerge from the melee on the dance floor, he was already clutching his stomach so as to leave him in no doubt that he had been injured in that area. He later said that the patches of blood seemed to be more on the chest area.
21. Warren Holmes is Lewis Blair's brother and was also working as a steward or doorman. He said that he saw the deceased emerge from the upper dance floor with blood on his t-shirt from the top of his chest to about his navel and agreed that that area "pretty much was all covered in blood". Another doorman, James Derbyshire, was shown Incident 3 but did not remember seeing it: when cross examined by Mr D'Souza, he said "from memory" that when he saw the man who had run from the dance floor at the bottom of the stairs near the reception, he was bleeding from the chest and stomach area. In later questions, Mr D'Souza referred only to bleeding from the stomach: Mr Derbyshire agreed.
22. Raymond McKenzie, the head doorman, came from the street, down the stairs and into the club where he saw two men; one had cuts to his neck and he saw blood; the other man (who went onto the dance floor) had a knife. He did not recall seeing Incident 3. He took the injured man (the deceased) up the stairs and out into the street. He said that he was with him from the time the deceased had been standing at the open floor space in front of the dance floor and he was not assaulted while he was with him. There was some confusion as to whether this was the upper dance floor (prior to the incident depicted in Incident 3) or the area of Incident 3 described as the lower dance floor. In re-examination, when viewing Incident 3 again, he accepted that he saw the two men "somewhere around there". Mr D'Souza points to the CCTV which shows Mr McKenzie coming along the corridor from the direction of the upper dance floor.
23. In addition to the accounts as to the events in the club, the Crown also led evidence that, with his solicitor, the appellant surrendered to a police station (presumably on the basis that he learnt that he was being sought). He made no comment in interview but provided a prepared statement to the effect that he had seen a fight involving the deceased and Hockenhull, had tried to leave the club but then became involved in splitting up another fight before being himself attacked. He refused to elaborate on this statement. Finally, it is appropriate to add that the appellant discarded his jacket and mobile phone after the incident: they were not recovered.

The Submission

24. Mr D'Souza argued before Beatson J that there was no case to answer under the first limb of Galbraith because there was no circumstantial evidence capable of properly supporting the inference that the appellant stabbed the deceased or, alternatively, if there was, it was 'tenuous and inherently inconsistent'. Thus, he submitted that the evidence of Lewis Blair was clearly inconsistent with the proposition that the abdominal wound occurred during Incident 3 because that witness was clear that the deceased was clutching his stomach as he came off the upper dance floor. Further, the evidence of the other eye witnesses who spoke of blood around the stomach area of the deceased was also inconsistent with the Crown's case as was the absence of any evidence from any of these witnesses that they had seen the appellant with a knife. The Crown resisted the submission on the basis that there was strong evidence from which the necessary inferences could be drawn: it was open to the jury to take the view that Mr Blair had seen the deceased at a moment later than Incident 3; it was suggested that Mr D'Souza had misrepresented Mr Blair's evidence.
25. Beatson J concluded that this was a classic case for consideration by the jury. He took a different view of to that expressed by Mr D'Souza of Lewis Blair's evidence and noted that he had described his attacker (whom he thought had also stabbed towards the deceased) as having a half gold tooth (which he said that the appellant had), that the stabbing motions were after the deceased emerged from the speaker area and that the perpetrator of that attack had run round the speakers. He pointed to the CCTV images supporting the conclusion that the appellant had a knife 11 seconds prior to the 'clinching encounter' and that none of the images of the deceased prior to that encounter showed him holding his stomach. He noted that the Crown also relied on the history of antipathy, the evidence of what had been said to Charlene Ramsey and the fact that the appellant had discarded his jacket and mobile phone after the incident.
26. Because of the argument about the effect of Lewis Blair's evidence, transcripts had been ordered. They became available immediately after Beatson J had given his ruling: there was an issue at the Bar as to whether the transcript was consistent or inconsistent with the ruling. The judge was disinclined to revisit what he had said but he did make it clear:

"If he [Mr D'Souza] wants me to re-visit the question of stopping the case, I will of course hear you but, other than that, it is going to be for others to decide this matter."

27. There the matter rested and there was no further argument on the issue.

The Defence Case

28. For the sake of completeness, we summarise the relevant evidence of the appellant. He said that that he did not have a knife at all that night. He had two mobile phones, a silver Rizla packet, cigarettes, car keys with a metal fob, money and tickets in his pocket. He went through the metal detector when he entered the club and it did not go off, so he was not patted down. He went to the bar and then went to the top dance floor. He had spoken to Charlene Ramsey and told her that the way the deceased was going on, something would happen to him. This did not mean that either he or Hockenhull were going to do anything; he was talking in general terms. He had also spoken to Natalja Gordon (the deceased's girlfriend) but denied saying to her that her baby father (ie the deceased) was a pussy. He had told her to go away.
29. As for what was described as Incident 1, when he was on the dance floor, the appellant caught a glimpse of the deceased through the crowd, standing at the back wall, in front of but not close to him. He tried to make his way through the crowd because he wanted to get away. He was concerned about Hockenhull because of what had happened previously between the deceased and Hockenhull. There was pushing and shoving and people were holding on to him. He was not trying to follow the deceased; he wanted to leave the club. He did not then leave because he was looking for his younger brother.
30. Moving to Incident 2, the appellant saw Thomas Carling and Simeon James. Simeon James was impeding his progress. He did not threaten James but was telling him to get off, because he was holding him. He thought that James wanted to keep him away from trouble. The object in his hand was possibly his key fob, his Rizla packet or his mobile phone. He then went down towards the toilets looking for his younger brother; he was near the male toilets exit, by the kitchen. The area was relatively empty and his friends must have been on the top dance floor.
31. The appellant said that he was making his way to that area at roughly the same time as the deceased was on the other side of the wall and the speaker, but they could not see each other, it was probably coincidence; it was nothing to do with him. As for Incident 3, he heard shouting and took a step in the direction of the shouting; he saw the deceased step out of the corridor and he stepped aside. The deceased lunged at him aggressively and he thought the deceased had a knife, so he put out his left hand to try to stop him. He jumped back and the deceased came forward towards him. It all happened very quickly. The area by the speakers was dim, but not pitch black. He could not see what state the deceased was in. The bouncers then took the deceased out and he heard a lot of shouting but could not hear what the deceased was saying.

The Appeal

32. As we have identified, the primary argument advanced on appeal was that there was no case to answer. This point was articulated by Aitkens LJ when giving leave to appeal (see [2010] EWCA Crim 1240 at para 12) in this way:

"The Crown specifically stated that its case in relation to the first of the stab wounds was on the upper floor and in relation to the second was on the lower floor. On the evidence there was no possibility of there being two stabbings in the stomach. Accordingly, in order for the Crown to convince the jury that the appellant had fatally stabbed the victim in the stomach after the fatal stabbing in the neck, it is at least arguable that the Crown would have had to have satisfied the jury that there was no possibility of any other stabbing in the stomach before the stabbing in the neck. The argument must be (given there was only one stab wound in the stomach) that if there was a possibility that the victim had been stabbed in the stomach before being stabbed in the neck, then how could a jury be sure that the fatal stabbing to the stomach had occurred after the stabbing in the neck, and therefore how could they be sure that the fatal stabbing had been done by the appellant near the speakers?"

33. Additionally, Mr D'Souza obtained leave to argue that there was a irredeemable procedural irregularity because, once the judge had received the transcripts of Mr Blair's evidence, he did not then reconsider his ruling on the submission of no case to answer. In the light of the exchange, it is arguable that the judge was not specifically asked to do so but, whether that is so or not, on reflection, Mr D'Souza accepted that this argument did not provide a free standing ground of appeal. Given that this court has all the relevant transcripts and would be bound to follow the evidence disclosed by those transcripts in preference to any inaccurate summary contained within the judge's ruling, the question which must be addressed is whether there is, in fact, a case to answer. If based on the entirety of the evidence, this court concludes that there is, this ground of appeal will fail, whether or not the judge should have re-visited the issue. If, on the other hand, there is no case to answer, the judge's decision cannot be saved by his analysis of the evidence.
34. As to the primary ground of appeal, the traditional approach identified by Lord Lane CJ in R v. Galbraith [1981] 1 WLR 1039 (if a reasonable jury properly directed could not on the evidence find the charge proved beyond reasonable doubt) concerned the weight to be attached to evidence implicating the defendant upon which the Crown relied. The application of that principle to cases of circumstantial evidence, however, has been the subject of further debate, primarily in a number of unreported decisions which were considered accurately to reflect the common law by the Judicial Committee of the Privy Council in DPP v. Varlack [2008] UKPC 56 which concerned an appeal from the Court of Appeal of the British Virgin Islands.
35. Thus, in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, in the Supreme Court of South Australia, King CJ summarised the appropriate approach in these terms:

"[I]t is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. … Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. … He is concerned only with whether a reasonable jury could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.

I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case, that implies that even if all the evidence for the prosecution was accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence."

36. This was the conclusion reached in this court in R v. Bokkum (7 March 2000, unreported), where Tuckey LJ rejected, as contrary to Galbraith, the proposition that in a case dependent on circumstantial evidence, the judge would be required to withdraw the case if some inference other than guilt could reasonably be drawn from the facts proved: he should only withdraw it if he considered it unsafe for the jury to conclude that the defendant was guilty on the totality of the evidence. This approach was approved in R v. Edwards [2004] EWCA Crim 2102 (paras 83-5) and adopted in R v. Jabber [2006] EWCA Crim 2694 in which Moses LJ said (at para 21):

"The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude."

37. We add only this. It has long been a principle that, absent good reason (such as the witness being unworthy of belief), the prosecution is obliged to call all witnesses who give direct evidence of the primary facts and which the prosecution, when serving statements, consider to be material, even if there are inconsistencies between one witness and another: see R v. Russell-Jones [1995] 1 Cr. App. R. 538. Further, although taking the prosecution at its highest does not mean "picking out all the plums and leaving the duff behind" (see per Turner J in R v Shippey [1988] Crim. L.R. 767), it is necessary to make an assessment of the evidence as a whole and not simply consider the credibility of individual witnesses or evidential inconsistencies between witnesses. It is for the jury to decide what evidence to accept and what evidence to reject and the fact that a witness called by the Crown gives evidence in some respects inconsistent with the inferential case being advanced by the Crown cannot, by itself, be determinative of a submission of no case to answer: it is obviously, however, a factor to be taken into account.
38. Applying those principles, we return to the facts of this case. Mr D'Souza challenged the judge's analysis of various parts of the evidence of Lewis Blair (as to the place where Blair saw the deceased clutching his stomach, the implications of the three stabbing motions after the deceased emerged from the speaker area and the identity of that person). Further, he did not accept that the appellant had a half gold tooth but rather a gold stripe on a tooth. He also took issue with the relevance of that fact given other differences in description. As for the evidence of Mr Laws that the appellant had a knife, Mr D'Souza contends that it is contradicted by other evidence and does not explain the eye witness accounts that no knife was seen at Incident 3. In relation to the point that the CCTV did not reveal the deceased holding his stomach before Incident 3, he argues that the eye witnesses indicated that he was and that not all CCTV was shown or revealed the deceased; neither was it possible clearly to see the right arm of the deceased.
39. On behalf of the Crown, Miss Wright submits that evidence firmly pointed away from the conclusion that the deceased might have been fatally stabbed in the stomach at some stage before Incident 3. First, the CCTV analysis showed the deceased entering the club at 2.29.14; he walked to the dance floor at 2.30.31 and towards the back of the club. At 2.31.22, Hockenhull was seen to attack him. No witness suggested that there was an altercation before this incident and no disturbance was shown on the CCTV before Incident 1. Natalja Gordon spoke of the deceased greeting her and then moving away and being attacked by Hockenhull; this was also consistent with the evidence of Melissa Ramsey. Further, the appellant himself said that while on the dance floor, he saw no trouble until the incident between the deceased and Hockenhull.
40. As for the submission of no case, Miss Wright argues that the assessment of the evidence of the witnesses was for the jury and the judge was entitled to reach the conclusions that he did. Further, the size and layout of the club were such that anyone walking along the corridor away from the upper dance floor would not have been seen until emerging at the seating area by the large speaker where Incident 3 took place so that phrases such as "emerging from the dance floor" and "speaker area" were open to interpretation. She also pointed to the fact that the witnesses had marked various plans in a way that did not coincide with their oral evidence. These plans are not available to us (notwithstanding a search in the court files) but the point is clearly well taken because, in summing up, the judge said:

"The defence invites you to prefer the witnesses' answers to questions about this to the locations they marked on plans to illustrate what they were saying to you. They say that you can see from Mr McKenzie that people can be muddled by plans."

41. Having reviewed the transcripts, it is clear that Mr Blair gave two different accounts as to where he saw the deceased. In evidence in chief, he said that he saw him walk through the corridor into the seating area and that it was at this point that he saw him clutching his stomach; in cross examination he said that he saw him coming from the crowd "by the stairs to the upper dance floor" and it was then that he was clutching his stomach. In re-examination, he reverts to his first account but makes it clear that the deceased was clutching his stomach before the encounter with the appellant. The judge's summary in his ruling reflects the first account but fails to take account of the modification introduced in cross examination; it further fails to acknowledge the account of the witness that he saw the deceased holding his stomach in the corridor before the encounter. In the circumstances, we consider there to be some force in the submission that the judge proceeded on an erroneous understanding of the full potential import of the evidence of this witness. We further recognise that the account given by Messrs Holmes and Derbyshire of seeing the deceased with his stomach covered in blood is consistent with a prior stomach wound although it is not inconsistent with a wound bleeding from the neck (particularly as the witnesses spoke of visible blood from the top of his chest).
42. This analysis does not deal further with this ground of appeal because, as Mr D'Souza recognised, the question for this court is whether, in the light of the evidence which we have seen in detail and the approach identified by the authorities to which we have referred, in relation to either or both of these counts, there was, in fact, a case to answer. Suffice to say that we have no doubt that there was.
43. In relation to possession of an offensive weapon, there was (as Mr Laws observed) incontrovertible evidence that the appellant had something clasped in his right hand which he was holding up in a gesture of some sort. Mr Laws considered that there was very strong support for the proposition that it was a knife. That Warren Holmes gave evidence that he did not see anything in the appellant's hand does not alter the fact and the statement of Simeon Jones used by Mr D'Souza to cross examine Mr Laws is simply not evidence of anything. Mr Laws spoke only from the CCTV, but the jury were able to use their own judgment to assess the expert opinion with which they were provided and decide whether what was being held up might have been a mobile telephone or a fob of keys or Rizla paper. In our judgment, the proposition that there was no case to answer in relation to this allegation is simply unarguable.
44. In our judgment, the case in relation to the allegation of murder has to be seen in the context of the earlier events from which we have no doubt that the jury were entitled to draw a number of conclusions. The first was that there was an animosity between Hockenhull and the deceased and also between the appellant and the deceased. Second, the conversations prior to the visit to the club (as recounted by Charlene Ramsey and Natalja Gordon) arguably revealed a foreknowledge of potential trouble also in circumstances of some animosity.
45. Against that background came the events in the club. The first point to make is that there was no evidence either from the CCTV (which partially tracked his path) or the eye witnesses of an altercation between the deceased and anyone else prior to Incident 1. That incident, captured on CCTV, was of Hockenhull (who similarly had revealed animosity to the deceased) raising his right arm and using a stabbing or jabbing movement in the vicinity of his neck. The pair was then split up. It was 2.31.22.
46. Within 6 seconds, different cameras pick up Incident 2 involving the appellant. The interpretation put on the CCTV by Mr Laws in relation to that incident is that the appellant has a confrontation with the man now identified as Simeon Jones who attempts to impede his progress such that a third man (Warren Holmes) tries to separate them. The reaction from the appellant (after three seconds) is to hold up what we have concluded the jury was entitled to find was a knife towards the face of the person who was impeding him. The object was in his right hand and he then drops his arm but continues holding the object in that hand. He then moves off the upper dance floor in the direction of the exit, in fact taking a parallel path to (but separate from) the deceased.
47. Contrary to the evidence of the doormen, the CCTV evidence does not reveal that the deceased was in fact escorted from the upper dance floor to the point at which Incident 3 occurred. Further, as Beatson J observed in his ruling, the deceased was not shown by the CCTV to be holding his stomach before Incident 3 (although Lewis Blair's evidence was to the contrary). Mr D'Souza argues that it is sufficient that eye witnesses say that they saw it but that is to elevate the eye witnesses above the other evidence in the case: it was for the jury to determine what they made of the evidence of the doormen in the context of what they could see on the CCTV aided, where appropriate, by Mr Laws. In that regard, the point made by Mr Laws as to the fallibility of witnesses (as opposed to the incontrovertible record of the CCTV) was equally for the jury to consider. Suffice to say that there was material from which the jury could conclude, contrary to the evidence of Mr Blair, that the deceased was not escorted or injured to his stomach when he made his way from the upper dance floor to the vicinity of Incident 3.
48. As to Incident 3 itself, again, the judge was right to note that 11 seconds beforehand, the appellant was holding in his right hand an object which the jury were entitled to conclude was a knife. He had left the earlier incident with the object by his side and when he confronted the deceased, it was open to the jury to conclude that the CCTV evidence revealed a forward thrust with his right hand in the direction of the deceased's abdomen with sufficient force to cause his body to arch slightly backwards. Given that this was the hand in which what Mr Laws concluded was a knife was held and that the deceased did in fact suffer a fatal injury to that part of his abdomen, there was material from which the jury could conclude that the deceased struck that fatal blow.
49. None of this is to disregard the evidence of Mr Blair, the other doormen or, indeed, the other evidence in the case. Although the CCTV reveals images which are, in themselves, unchallengeable, the interpretation of those images and the factual evidence which each of the witnesses gave had to be weighed by the jury who were entitled to ask themselves whether (in the light of what they could determine from the CCTV) the witnesses were accurately remembering what they had seen and when, in a confusing and difficult series of incidents, they had seen it. We have no doubt that the evidence to which we have referred, if accepted, was capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and was equally capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable: the other evidence to which Mr D'Souza refers does not either individually or collectively undermine that conclusion. In the circumstances, there was a case to answer in relation to the count of murder and we reject this primary ground of appeal.

The Summing Up

50. Although no criticism is made of the directions of law that Beatson J gave to the jury, Mr D'Souza does challenge the way in which the judge dealt with the evidence of Mr Laws and that of the doormen, particularly in the context of Incidents 2 and 3.
51. As for Mr Laws, the judge gave a perfectly proper direction as to the difference between direct and circumstantial evidence: he correctly identified the clear images as direct evidence and the different approach to those that required interpretation. He also gave an entirely accurate direction as to expert evidence and as to the way in which the jury should deal with opinions expressed by Mr Laws. He explained the difference, as evidenced by Mr Laws, between 100% certainty (that is to say matters which were self evident from the CCTV) and issues which required the application of expertise to form an opinion: in particular, he recognised that the statement that the object that the appellant was holding had a strong appearance of a knife was an opinion. Further, when dealing with one aspect of Mr Laws' evidence, he identified those conclusions which were opinion and reminded the jury that he had provided them with a direction on expert evidence. Finally, when reminding the jury of the competing submissions by the Crown and the defence, although he repeated that the prosecution argued that the CCTV evidence was direct evidence, the judge then went on specifically to remind the jury that he had given them a direction on direct and circumstantial evidence. He then repeated to the jury the defence contentions in respect of this evidence. Whereas the judge could have referred to further aspects of this evidence, there is no part of this summary that we believe is open to legitimate criticism, let alone is a failure to amplify these defence points sufficient to render unsafe the verdicts of the jury.
52. Mr D'Souza also criticises the failure of the judge to mention a small number of specific details from the evidence of the doormen. It is unnecessary to go into the precise approach of the judge because when summarising the defence case, it is beyond doubt that he placed the issues fairly and fully before the jury. Thus, he dealt in terms with the account given by Lewis Blair in cross examination that he saw the deceased coming from the crowd from the stairs to the upper dance floor, clutching his stomach and injured. He mentioned the point that this account was corroborated by Mr Holmes and that the accounts given by Blair and Holmes were consistent with the evidence of Mr Derbyshire that he saw the deceased emerge from the dance floor injured.
53. The judge had previously dealt with the prosecution submission that the jury should reject the suggestion that the deceased was injured in the stomach before the encounter with the appellant and, referring to the evidence of all four doormen, he specifically raised the issue of whether the deceased was or might have been injured in the stomach before the encounter with the appellant in Incident 3. There could be no doubt that the jury would have been well aware of the significance of all this evidence in that context. We reject the criticisms of the summing up.

Conclusion

54. We have come to the clear conclusion that there was, indeed, a case for the appellant to answer in relation to the allegations of both murder and possession of an offensive weapon and that the criticisms of the summing up are not made out. The competing arguments were doubtless advanced with great force both by the Crown and by Mr D'Souza for the appellant and the judge provided proper directions of law and a balanced account of the evidence for the jury to consider. Having unanimously convicted the appellant of involvement in a later fight, verdicts involving different majorities were returned in respect of the remaining counts demonstrating that the jury were more than able to distinguish the issues involved. The case was eminently one for a jury to resolve and they did so. This appeal is dismissed.
55. We add one further comment. The appeal was originally listed for half a day and arrangements were not made for the court to view the CCTV which has played such a central part in the case. The time estimate was, on any showing, woefully inadequate and a further day had to be set aside which (because of the different commitments of the constitution of the court) could only be arranged after a lapse of over two months. The listing office will always do its best to allocate sufficient time for appeals but the parties are in the best position to know what is involved in an appeal and if, as became increasingly obvious to the members of the court once the argument was underway, insufficient time had been allowed, representations should be made to correct the estimate. In the event of disagreement, the matter can be put before a presiding Lord Justice for a decision to be made.