England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE THORNTON QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/05/2012

Lord Justice Stanley Burnton:

Introduction

1. On 18^th October 2011 at the Central Criminal Crown Court, before His Honour Judge Thornton, the Applicant was convicted by a majority of 10 to 2 of the murder of Michael Ofori. He was subsequently sentenced to life imprisonment with a minimum term of 28 years less time spent on remand.
2. There were four co-defendants. Nicholas Allen-McVytie was also convicted of murder. Kraig Isaacs was acquitted of murder. The jury did not reach a verdict in respect of Jules Jade Brown or Nathanial Valton.
3. On 11 May 2012, having heard the submissions of Mr Price QC on behalf of the Applicant, we announced our decision to refuse the Applicant's renewed application for leave to appeal against his conviction for murder. We said that we would give our reasons in writing at a later date. We now do so.

The facts in summary

4. At approximately midnight on 23 June 2010, Michael Ofori (then aged 35) was shot in his car in Oslac Road, Catford SE6. His wife was in the car with him. It was an execution-style killing. A black male approached the deceased and shot at him three times. The first shot missed. The other two found their mark. The final, fatal shot was at close range to his head. After the first shot the deceased's wife managed to get out of the vehicle. She fell on the pavement and while on the floor she heard the remaining two shots.
5. The prosecution case was that the deceased was mistaken for a man called Perry Walters and that there was a feud between Walters, the Applicant and the co-accused Valton. In the months preceding the murder, there had been gun attacks, for which the murder was a reprisal. The Applicant and his co-accused each in different ways participated in the killing intending that Walters would be shot and killed. However, save in the case of the co-accused Isaacs, who was alleged to have lured Walters to the area in which the shooting took place, it was also possible that Mr Ofori was the intended victim because there was evidence he was involved in drugs.
6. The prosecution alleged that there had been three shooting incidents in the feud, for which the murder was intended to be a reprisal:

(1) On 26 March 2010 the occupants of a blue Ford Focus linked to the Applicant and in which he was travelling were involved in an exchange of gunfire with the occupants of a black Nissan linked to Perry Walters. The Applicant was shot.

(2) On 13 April 2010 a brother of Perry Walters named Demcha Lewis was shot from a Chrysler car. The prosecution alleged that this was a revenge attack for the shooting of the Applicant two weeks before. Lewis was shot but not fatally injured.

(3) On 1 May 2010 Valton was shot. He refused to assist the police.

The submissions before us

7. On this renewal, the principal submission made by Mr Price was that the evidence of the three incidents was inadmissible bad character evidence. The evidence of all was evidence of the bad character of the Applicant. Although he was the victim in the first incident, the inference to be drawn from it and the others was that he was involved in a violent gang, probably dealing in prohibited drugs. It was not excluded from the definition of bad character by section 98(a), because it was too distant in time from the murder that was the subject of the indictment. It was not important explanatory evidence or relevant to an important issue as between the Applicant and the prosecution: section 101(1)(c) and (d), and section 102. It was clearly evidence of the bad character of those responsible for the shootings in all three incidents, and in incidents (1) and (3) they were non-defendants and the requirements of section 100 were not satisfied.
8. The second ground of appeal is that it is to be inferred from the acquittal of Isaacs that the jury were not satisfied that Walters was the intended victim, in which case the evidence of the three earlier incidents was irrelevant and inadmissible and prejudicial; and his acquittal was inconsistent with the conviction of the Applicant.

Discussion

9. The judge carefully considered the admission of the evidence of the three earlier submissions and handed down a detailed written ruling. He held that the evidence of the 3 incidents was highly relevant and had to do with the alleged facts of the offence with which the defendants were charged within the meaning of section 98 of the 2003 Act. Mr Price seeks to challenge this decision, on the basis that such facts must have a nexus in time with the alleged offence, and the incidents in question had no such nexus. For the proposition that there must be such a nexus he relies principally on the judgment of this Court in McNeill [2007] EWCA Crim 2927 and Tirnaveaunu [2007] EWCA Crim 1239 [2007] 2 Cr App R 23.
10. We are clear that the Applicant's reliance on these authorities is misplaced. In McNeill, the evidence was of a threat made by the defendant subsequent to the alleged offence. It was held that because of the proximity of time between the offence and the threat, the evidence of the threat was "to do with" the evidence of the alleged earlier offence. It is understandable that chronological proximity may be required in such a case, where otherwise the evidence of bad character is little more than evidence of propensity. In Tirnaveaunu similarly, the evidence of bad character was in essence evidence of further similar offending, by the defendant, and again some chronological proximity may be required if the provisions of section 103 are not to be circumvented.
11. In neither of those cases was the bad character evidence relied upon as showing a motive for the index offence, and what was said by the Court in its judgments has no application to such a case, which was not before the Court. Section 98 includes no express or obviously implicit temporal qualification. In McNeill, Rix LJ said that "the words of the statute 'has to do with' are words of prima facie broad application, albeit constituting a phrase that has to be construed in the overall context of the bad character provisions of the 2003 Act". In Tirnaveaunu, the Court said:

"24 We respectfully agree with Professor J R Spencer QC Evidence of Bad Character, para 2.23, where he suggests that there is a potential overlap between evidence that has to do with the alleged facts of the offence and evidence that might be admitted through one of the gateways in section 101(1). As he observes in relation to the example he took of prior misconduct being the reason for the commission of the offence, such evidence could be admitted either as 'to do' with the offence or as important explanatory evidence under section 101(1)(c) of the CJA 2003 : 'In practice nothing of any legal significance depends on which of these two routes it is by which the evidence comes in.'"

The italics are ours. We respectfully agree. This citation is inconsistent with Mr Price's submission.

12. In our judgment, the evidence of the three incidents was evidence that was alleged to do with the evidence of the murder in question. The words of the statute are straightforward, and clearly apply to evidence of incidents alleged to have created the motive for the index offence. Indeed, where the evidence is reasonably relied upon for motive, it would be irrational to introduce a temporal requirement. Take these examples. A man is wounded in a shooting. He is hospitalised for 6 months. On discharge, he is alleged to have shot the man who is alleged to have been his attacker. In another case, the reprisal is the day after the first attack. In the second case, the evidence of the first attack is not bad character for the purposes of section 98, in the first it is.
13. In our judgment, the judge's decision was clearly right, and we pay tribute to his clear and cogent ruling. Incidents (1) and (3) gave rise to the alleged motive for the murder that was the subject of the indictment. Incident (3) was part of the pattern: as was put by Mr Price, part of a series of "tit for tat" incidents. Each of them had to do with the others, as had the index offence. They were not merely relevant: they were intrinsic to the prosecution's case.
14. We add that, given these four incidents took place within a period of 3 months, if there were a temporal requirement in section 98(a), we would have held it to be satisfied.
15. We can deal with the acquittal of Isaacs briefly. It is not a necessary inference from the jury's verdict in his case that they were not satisfied that Walters was the intended victim. They may, for example, have been unsure whether he was aware of the purpose for which he lured Walters to the location of the murder. There is not inconsistency between Isaacs's acquittal and the Applicant's conviction.
16. For the above reasons, we refused leave to appeal.