England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		28th June 2011

1. LORD JUSTICE THOMAS: On 5th September 2009 a 16-year-old woman, CT, was attacked in Chiswick, London. Undoubtedly she was shot in the stomach. It was her case that she had been dragged by a group of young men into some bushes, beaten up and then shot. Her case was that this was a revenge attack for reasons which she explained.
2. The two appellants, Sebastian and Pedro Mateza, who appeal by leave of the single judge, were arrested and, together with some others, were tried in the Crown Court at Isleworth before Her Honour Judge Molyneaux and a jury on a number of offences, including an offence under section 18 and firearms offences. There was one other count in the indictment to which it will be necessary to refer at slightly greater length.
3. The Crown's case was, as we have indicated, that this was a pre-arranged revenge attack.
4. The two appellants denied involvement. Sebastian had an alibi, as we should explain.
5. They were convicted of the offence under section 18 and the firearms offences.
6. The issues which arise on the appeal are two. First, whether the judge should have admitted a text message which Pedro wanted to adduce in evidence and second whether the judge was correct, in the circumstances of the case, to leave the matter to the jury.
7. The evidence
8. It is necessary, first, to set out the evidence. It is important to emphasise at the outset that there was essentially no forensic evidence against any of those that were tried and in particular against the two appellants. Much of the case, indeed it is contended by Mr Jameson and Mr McNulty who appear on behalf of the two appellants, that the whole case depended upon the evidence of the complainant.
9. Her evidence was broadly as follows. She had been in a relationship with Sebastian. It was a somewhat volatile relationship and they had broken up in April 2009. That was common ground. It was also common ground in very early September 2009, shortly before the shooting, that Sebastian was beaten up as he left the complainant's house.
10. The evidence of the complainant can be summarised as follows. First, she had understood that Sebastian believed that she had set him up for the beating. On 4th September 2009 she was telephoned by Sebastian when she was visiting a friend. He asked to meet him on the Chiswick High Road. She agreed to do so. Sebastian was there with his brother, Pedro. He suggested they go back to his brother's flat to smoke some cannabis. As they were on their way, they met four other males. She did not recognise them all. She only recognised one of the co-defendants, Daniel Kongo. The other three were the other defendants in the case. She was then attacked. She was hit and kicked by Pedro first. Then Sebastian held a gun to her head. He hit her with it. He was then handed another weapon (an air rifle) and heard someone shouting in slang "fire it". She was then shot. They continued the attack. It stopped when police sirens were heard. They all moved away.
11. There were many inconsistencies in her evidence to which we will return. There were two further incidents relating to her evidence, one which included the admitted fabrication by her of evidence to which we will need to refer.
12. In addition to her evidence, evidence was called from residents who described an attack taking place. There are two features which are important about their evidence. First, they did not identify anyone but did identify a group of people attacking someone. Secondly, they phoned the police.
13. When the police arrived they found the complainant. At the scene she named two of the attackers as Sebastian and Pedro. Significantly, and it is easiest to see this by reference to the cartography of the area, five males were stopped by the police about 150 yards from the scene of where the complainant had been shot. One of those was Pedro, the other was Kongo and three others who were charged and tried.
14. The police also found at the scene where she had been shot an air rifle which was concealed fairly badly under some ivy which was growing in the communal garden of the flats where Pedro and Sebastian lived. Secondly, in a bag, two starter pistols were found, one unconverted and one converted. Ammunition was also found.
15. The complainant was taken to hospital. A gunshot wound penetrating her stomach was found and there was an X-ray which showed a pellet had lodged in her body but no one found it. She was detained in hospital for some three days when she was released. An ABE interview was then conducted.
16. Evidence was called from a senior consultant at the hospital to give evidence, by reference to the notes that had been taken. Their significance to the defence was that they indicated very little by way of bruising, which was said to be inconsistent with the account to which we have referred that was given by the complainant of her being beaten up apart from being shot.
17. In interview, Pedro admitted he had met the complainant when he saw four others. He saw an altercation between the complainant and those. He left to go to his flat. He heard screams and he went to see what was happening, but he had nothing to do with the attack. Sebastian claimed he was at a cinema in Kingston in the course of his interview.
18. At the conclusion of the Crown's evidence the judge, as we have said, heard submissions of no case to answer. One of the defendants, Marcus Aco, to whom we shall return, was successful. The judge directed a verdict of not guilty. That having happened it appears that the other defendants, including the two appellants, made similar submissions but the judge rejected those and held there was a case to go to the jury.
19. After that ruling none of the defendants gave evidence. The judge summed the case up to the jury and, as is relevant to this appeal, the two appellants were convicted as was Kongo. We do not think it necessary to describe in outline the facts of this case in any greater detail and can turn to the two issues raised in the appeal.

Text Messages

20. The first of the issues, as we have indicated, related to a text message. Mr McNulty, who has appeared before us today, and has provided us with a thorough and extremely helpful skeleton argument set out the circumstances in which he advanced the case for the admission of the text message. That was a text message found on Daniel Kongo's phone received by Daniel Kongo on 3rd September 2009 from an unknown sender. It said: "I've got straps for sale." Meaning in every day parlance, that he had guns for sale. It is right to point out, as Mr Brock has done so on behalf of the Crown, that the disclosure of this evidence was at a very late stage. Although the point had not been made before on behalf of Pedro, the point was taken on behalf of Pedro by Mr McNulty that this was evidence that Kongo was interested in buying guns. It was relevant and important because it suggested on Pedro's account of the four people he had met that they might be going to a place where there were a gun transaction was going to take place, or guns were concealed or something of the kind. It was his case that the guns at the location that were found had nothing to do with the attack alleged by the complainant, by Sebastian and Pedro; it was all to do with the four people he had encountered. When he applied to put this text message in, perhaps unsurprisingly, it was opposed vigorously by counsel on behalf of the Kongo.
21. The judge declined to admit the evidence. She relied on the decision of this court in R v Leonard [2009] EWCA 1251. She held that it was not an implied assertion of his interest but simply an offer of guns. Secondly, it was a random message from an unknown person.
22. We do not think it necessary to analyse the judge's reasoning any further because she was relying on the decision in Leonard. That was a case which was one of a number of cases relating to the hearsay provisions relating to text messages that were reviewed by the court in R v Twist [2011] EWCA Crim 1143, a judgment handed down by this court in April 2011. The judgment contains a comprehensive analysis of the hearsay provisions of the Criminal Justice Act 2003. It made clear to everyone that the Act set out a wholly new definition of hearsay evidence and a statutory code for dealing with it. It was therefore not helpful to go behind it to the earlier cases or to refer to phrases such as "implied assertions".
23. It was accepted by counsel for the Crown and put forward by Mr McNulty that the analysis carried out in Twist was the analysis that we should adopt. We agree with that. It seems to us for the future it is entirely unnecessary for any court to look at cases earlier than Twist because Twist sets out all of the relevant considerations and the correct approach. It is therefore unnecessary for us, in the light of the submissions made and our view of the case, to set out any further reasons why we consider that Twist is the case to be followed. We cannot in any way improve upon that analysis, but would merely commend it to the courts of the future.
24. Adopting that analysis as relevant to this case, we ask ourselves four questions. First: what is the relevant matter to be proved? It is clear in this case that the relevant matter Mr McNulty wished to have proved on behalf of his client was that Kongo was a man interested in purchasing guns. The second question we asked: is there a statement of that matter in the text? The answer is "no", the hearsay provisions are therefore not relevant. The fact that the hearsay provisions are not relevant does not mean that the evidence is not relevant. One has to ask oneself the third question: is it relevant evidence? On the case being advanced by Mr McNulty it seems to us that to the explanation that he wished to put forward it was relevant to show that Kongo was interested in purchasing guns.
25. The fourth question that we have so ask is: could that conclusion that he was interested in buying guns be derived from the text? We find that a question on the material before us more difficult to answer. We do not know, for example, whether this was one of a few texts that Kongo had kept on his phone. If, for example, he received a large number of texts and had retained this one relating to the offer of guns, it seems that it would therefore be strong evidence that he might be interested in buying guns. But on its own, and without knowing much more, it is very difficult for us to assess, on the evidence before us, whether this was some evidence that was right to go before the jury, or alternatively, whether it really just was one of a random messages, which could have been no value at all to the matter which Mr McNulty's client sought to prove.
26. We therefore turn on that basis to consider whether the ruling of the judge, which on that basis would have been wrong, affects the safety of the conviction. It seems to us that looking at the whole of the other evidence in the case, assuming for these purposes that there was a case to answer because this, in our judgment, makes no real difference to that issue, would it have made a difference? In our judgment it would not. As we shall explain in due course, there was evidence from the complainant and, as we shall consider in a moment, and the question for us is whether there was other evidence to support that: was it in relation to the particular case that Mr McNulty was putting forward on behalf of Pedro of any real materiality that there might be an interest in Kongo wanting to acquire a weapon.
27. We cannot think it could do so. It was obvious to us that if Kongo had been interested in acquiring guns this would have been some evidence that he might well have been prepared to take part in an attack involving guns, but it is fanciful to suggest, given the circumstances in which the air rifle and the two starter guns were found, that this was some sort of transaction that Pedro happened to stumble on. As we shall explain when we turn to analyse the case, we cannot see that any view could have been taken of this defence as was put by others at trial than it was fanciful in the extreme.

Was there a case to answer?

28. We therefore turn to consider the second ground: was there a case to answer? As we have already indicated, the submission that was made was that the complainant was not merely an inconsistent witness, not merely a lying witness, but a witness who had gone so far as to be prepared to fabricate evidence. Therefore the case was put to us, very forcibly by Mr Jameson and Mr McNulty, who provided skeleton arguments which were comprehensive and who added to their submissions orally today with great succinctness, that this was unlike almost any other case because the judge had found she had fabricated a part of the evidence.
29. The inconsistencies can be summarised under a number of headings. First, the complainant had given different reasons for the attack. She had said one thing at the scene, she had given a different account at her ABE interview and on 15th October she had given a different account of the reasons of the attack. Secondly, as to the roles of each defendant, she had given inconsistent accounts of what they had done. We accept that that is the case in relation to the others though she appears to be more consistent in relation to Pedro, Sebastian and Kongo. Thirdly, reliance is placed on the medical evidence. As we have indicated, a senior consultant was called. She explained that when young doctors at a hospital received someone with a gunshot wound, they would wish to deal with that and not record in any detail in the notes what bruises she may have suffered. However, it has to be accepted that although the complainant said she had bruises, there were no notes of them apart from some reference to tenderness and bruising to the leg. Against that, it has to be noted that the DVD evidence of her ABE interview, when played to the jury showed some evidence of some bruising which the complainant pointed out. There were no photographs of that. So in respect of the medical evidence one can say, as in respect of the other two headings, that there was some evidence of inconsistency.
30. One next turns to the complainant's character. She had a caution and reprimand for shoplifting in 2006. She had convictions for the robbery of two mobile phones in each of 2007 and 2008. In 2009, she had a conviction for shop theft and later in 2009, prior to the trial, a conviction under section 5 for a public order offence relating to an argument with a ticket inspector. Whereas the last may not have been relevant to her honesty, she plainly was involved in offences of dishonesty prior to that. So the second matter raised, in addition to the inconsistency, is that one had a witness who plainly had committed offences of dishonesty.
31. However, much more significant and at the heart of their submissions was the third separate matter on which they relied, namely the fabrication of evidence. One of the counts in the indictment, count 8, charged Pedro and one of the other defendants Stephen Bunga with intimidation of the complainant. That charge arose from the complaint she had made about Pedro and Stephen Bunga shouting threats at her in the vicinity of Homebase in Richmond on 15th October 2009.
32. For reasons that it is not necessary to explain, after the complainant had given evidence, it transpired that she had fabricated a page on Facebook to explain away an inconsistent account that she had given to a friend about what happened on 15th October. There can be no doubt at all on the evidence before the court that the judge was right to conclude that she had fabricated the evidence of the Facebook page, in relation to that incident and the seriousness of it was aggravated by the fact that she had done so during the course of the trial. The judge, in consequence, directed an acquittal in respect of count 8 in the indictment and found, as we have endeavoured to summarise, the complainant was guilty of fabrication.
33. The last matter, the fourth matter under these separate headings, was an incident that occurred on 11th March 2010 during the trial. During a break the complainant left court with her father and the officer in the case. She saw Sebastian's girlfriend and shouted at her that she was going to beat her up. The officer in the case gave evidence of this. The complainant's account was that she was talking to her father and had said something to her father. It is submitted, and the judge it appears accepted this, that this was yet another lie.
34. So to summarise the part of the case advanced on behalf of Pedro and Sebastian there were not only the three inconsistencies to which we have referred, but her dishonesty (shown by her previous convictions), the fabrication, and finally, the lie in relation to events at the court.
35. With that catalogue of matters counsel for the two brothers next relied on what happened to one of the defendants to whom we have referred, Marcus Aco. As we have indicated the judge accepted a submission of no case to answer.
36. It appears that in the course of the complainant's evidence that when she was cross-examined she said that she had been kicked by Aco but he was somewhat reluctant. It also appears that one of the neighbours had given evidence that that she saw one of the participants in the attack had not got off his bike. It appeared that that was Aco. Unfortunately we do not have a copy of the judge's ruling as to why she accepted the submission of no case to answer against Aco, but what is powerfully argued by Mr Jameson and by Mr McNulty is that, as evidence had been given by the complainant of participation, namely he had kicked, even though reluctantly, and even if there was plainly evidence of the identity, how could the judge let Aco out of the case and find that there was no case to answer, on any other basis than it was the judge's view that the complainant could not be relied upon.
37. The answer Mr Brock, who has appeared for the Crown and been greatest of assistance to us, can be summarised: well, one has to look at the judge's ruling in terms of the neighbour's evidence that Aco had not got off his bike and therefore the case against him was not as strong a case as against the others. Furthermore, the question that was put to the complainant, which had elicited the answer to which we have referred, had been put by his own counsel. However, whatever may be the real reasons for the judge's ruling it is a factor we have to take into account.
38. So we turn to consider the case on the basis that her evidence was of central importance, and that her evidence must be put into the categorisation of not being simply unreliable but that of a witness who had fabricated matters; we must also take into account the position of Marcus Aco.
39. As against that we have to weigh up whether there was support for her account. First of all, there can be no doubt she was shot and shot by an air rifle. Secondly, that shooting took place in the communal gardens of the place where both Pedro and Sebastian lived. Thirdly, as we have already set out, the air rifle and two pistols were found at the scene. Fourthly, that five of the defendants, including Pedro, were found within 150 yards, very shortly after the attack. Fifthly, the neighbours saw a group of five attacking her. Sixth, as against Pedro there was not only the evidence of his presence by being found by the police but his own admission of being near the scene at the time, prior to the attack. Seventhly, there was the evidence that the Crown had adduced before the jury that the explanation put forward by Sebastian that he had been in the cinema did not provide an alibi, as there was time for him to get back and participant in the attack.
40. Sitting here, we do not have the benefit, which the learned trial judge had of seeing the witness, the complainant. We do however have the benefit of the analysis we have endeavoured to give in this judgment.
41. It seems to us that this was a case where it could be said that there was evidence to support the centrality of the account given by the complainant. The real factor, which no doubt caused the trial judge great anguish, was the fabrication of the evidence in relation to the Facebook entry. But nonetheless, it was, in our judgment, bearing in mind the certain matters to which we have referred that gave independent support to the attack, a matter very much for the trial judge to weigh up the two competing considerations which we have set out.
42. It would not, in all the circumstances, we think, be right for us to come to a different conclusion in relation to that issue, where she had the benefit that we do not have, of having seen the complainant. It seems to us therefore it was open to the trial judge to reach the decision she did and we cannot conclude that her judgment on that matter was either wrong in principle or outside the ambit of decision-making open to a trial judge.
43. But that is not the end of our consideration. We must, and we are directed by statute, to consider the safety of the conviction. We have had to ask ourselves the question: were all these issues therefore put properly before the jury, so the jury could weigh up, on the one hand, the account and what supported it and on the other, the lie, the complainant's bad character, the fabrication of one piece of evidence and the inconsistencies. There can be no doubt at all that all these matters were very carefully laid before the jury by the trial judge. They can have been under no doubt whatsoever about the view the trial judge had taken of the claimant and the very, very great caution that the jury had to follow.
44. But even that is not enough. We also have to satisfy ourselves by a review of the entirety of the evidence, that there was evidence on which the jury could properly and safely convict these two defendants. We have, with the great assistance of counsel, both in their written submissions to us and the very helpful oral submissions that we have heard today, carefully reviewed the evidence.
45. At the end of the day, we have come to the view that the conviction is safe. There was powerful supporting evidence, principally those seven items we have enumerated, which show that there was strong independent evidence to support the account that the complainant had given that two of those who attacked her had been the two appellants before us today.
46. Despite therefore the powerful and attractive way in which Mr Jameson and Mr McNulty have put the argument to us, we have reached the conclusion that this was a safe conviction and in those circumstances the appeal is to be dismissed.