England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Central Criminal Court
His Honour Judge Marks
T20110318

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/09/2014

Lord Justice Fulford :

Background

Introduction

1. On 16 May 2012 a jury at the Central Criminal Court convicted the applicant by a majority of 9 to 1 of the murder of Steven Grisales. He stood trial alone.
2. On 13 June 2012 the trial judge, HHJ Marks Q.C., ordered the applicant to be detained at Her Majesty's pleasure and 10 years 6 months (less 280 days served on remand) was stipulated as the minimum term under section 269(2) Criminal Justice Act 2003.
3. The Court of Appeal granted the Attorney General leave to refer the sentence under section 36 Criminal Justice Act 1988 on 9 October 2012; the sentence was quashed as regards the minimum term and the court substituted a period of 12 years ([2012] EWCA Crim 2352; [2013] 1 Cr. App. R. (S.) 124).
4. In these proceedings, the applicant renews his request for leave to appeal his conviction following refusal by the single judge.

The central issue

5. The central substantive issue raised on this application relates to the admissibility of hearsay evidence of suggested confessions by another individual to the crime of which the defendant was convicted, along with the extent to which the judge ought to direct the jury as to the potential dangers that accompany evidence of this kind. However, there are multiple other grounds of appeal that relate to wide-ranging aspects of the trial and the judge's summing up.

The incident and subsequent events

6. Shortly before 7.00 pm on 31 August 2011, Steven Grisales, who was 21 years old, was walking from Joyce Avenue, Edmonton, London N.18 to Silver Street Station. He was on his way home, having had dinner with his grandmother. His route took him along College Cross, where he encountered the applicant, who a few minutes earlier had been caught on CCTV footage in the company of two other males, Courtis Granville and Danele Smith. The applicant was wearing a dark coloured top with a brightly coloured pattern on the front and back, distinctive patterned jeans and a blue baseball cap, whilst Granville and Smith were both wearing dark hooded upper clothing. There were a number of other young people in the street at the time. The applicant and two of his companions who were walking towards Mr Grisales obstructed the latter's route along the pavement. When Mr Grisales passed the applicant, there was an altercation concerning some conkers that had been thrown by the applicant's group. Mr Grisales confronted them.

Martin Casey

7. At this point a witness called Martin Casey saw two black males shouting at Mr Grisales (who was white). The two black men were throwing punches in the direction of Mr Grisales and they were attempting to kick him, but as far as Mr Casey could recall they did not make contact. As he watched, Mr Grisales put down his jacket and a bag and he picked up a skateboard with both hands which he lifted above his head. Mr Grisales then hit one of the black men with the skateboard. Mr Casey saw the skateboard fall to the ground, and at this point the man who had been hit pulled out a black-handled kitchen knife with his gloved right hand from his pocket and he lunged at Mr Grisales in a stabbing motion. Although Mr Casey did not see the knife enter Mr Grisales's body, the latter shortly afterwards clutched at his chest, and came towards Mr Casey, asking him to telephone the police. Mr Casey saw that Mr Grisales was bleeding and "his eyes were rolled back". It appeared that the black "lads", who came towards him, were intending to stab Mr Grisales again. Mr Casey picked up his child and ran back inside his house. He shouted at the youths and the one with the knife threatened him. Some of his neighbours then appeared on the scene and the two black men ran away. Mr Casey believed he had seen the black man who carried out the stabbing on four or five previous occasions in the local area.
8. On 31 August 2011, Mr Casey described the stabber as having a short Afro/fuzzy hair; he described this as "the way you wear it when you shave it". He had quite a thin face, with quite dark skin and he had quite big dark eyes. He said he looked like a Somalian with high cheekbones. He was about 8 or 9 stone and was 5' 6" to 5' 7" in height. He was wearing a black glove and a hoodie of a "shell" like material, blackish and dark grey, with dark tracksuit bottoms (the top and the bottom matched as if they were a suit). He was aged between 16 and 20. This description, to a significant extent, tended to match Smith.
9. At an identification procedure on 6 September 2011 he picked out Granville and not the applicant. However, Mr Casey said in evidence that he was not 100% certain at the time of this identification because none of the youths in the photographs were wearing headgear.
10. On 17 January 2012 he identified the applicant's clothes as those worn by the man with the knife. Although these items did not match his original description (the matching shell tracksuit), he said in evidence "When I was shown the photos, everything came straight back to me". It was suggested to Mr Casey that the man he had originally described matched the appearance of Smith as seen on the relevant CCTV footage, to which Mr Casey replied "it looks that way but it was a mistake".
11. In evidence he described the man who stabbed Mr Grisales as wearing a darkish-coloured hoodie, with the hood up. He saw the purple peak of a cap sticking out from underneath, which may have had some writing on it. The hair underneath was "shortish Afro". He had faded jeans which possibly had one or two badges on them. He described the hoodie as being two-tone: greyish at the shoulders and darker on the arms. He gave his age as 16 to 20 and his height as 5' 6".
12. The defence extensively criticised the description of the perpetrator given by Mr Casey and the identification procedures set out above, whilst the prosecution highlighted that the witness gave evidence that the man responsible for the stabbing was the man who had been hit by the skateboard (it was accepted in the case that the applicant was the only person who had been hit by Mr Grisales with the skateboard)^[1].

Mandy Addy

13. Mandy Addy was also watching this incident. She noticed four people: a black male who was responsible for the stabbing, his victim (who was white), a light-skinned female and a second black male who had braided hair. As she recalled these events, only the victim and the man with the knife were actively involved in the incident. She noticed the victim was holding a skateboard. The man with the knife was shouting loudly at Mr Grisales, notwithstanding the fact that he was holding his hands in a placatory gesture. The black male then swung his right arm towards Mr Grisales in a punch-type gesture which seemed to connect with his left side. Mr Grisales went down to one knee, dropping the skateboard. He then got to his feet, once more holding the skateboard, whereon the black male hit him for a second time using a similar blow to the same part of the body. This caused Mr Grisales to fall backwards. Thereafter the victim got up once more and ran off across the road to a nearby garden. The black male and his companions also ran away. Ms Addy did not see the knife. She described the man who was responsible for the punching as black, 17 – 19 years of age, 5'6" to 5'7", close-cropped hair, dark clothing, medium to stocky build. She was not asked to participate in an identification procedure.

Mary Stokes

14. Mary Stokes, Mr Casey's partner and the witness on whom the Crown placed greatest reliance, heard shouting from her house and she went out to see what was happening. She could hear Mr Casey shouting "Forget about it about it, boys, just leave it ". She saw two black males in front of Mr Grisales. One of the males had a knife (similar to a kitchen knife Ms Stokes owned); he was getting increasingly enraged, and kept trying to reach Mr Grisales, moving the weapon backwards and forwards. She did not see if any of these attempted blows landed, but she became aware that Mr Grisales was bleeding and she concluded that something must have happened before she arrived on the scene. She shouted at the man with the knife to go away but he looked "angry and evil" and said "No: he hit me with a skateboard." The prosecution submitted, therefore, that on this witness's account the person who had the knife was the applicant, given he was the only person who had been hit with the skateboard (save for the suggested possibility, based on Williams's evidence, that Granville might also have been hit with the skateboard, as canvassed in footnote 1).
15. On 31 August 2011, Ms Stokes described the man with the knife as follows: "approximately 5'11", very skinny, with a long Afro which was half tied up. A dark-skinned black man wearing dark blue jeans and a black leather belt. I did get a good look at this face and so would recognise him again". This did not match the applicant as regards height (he is less tall) or length of hair (the applicant's was shorter).
16. On 3 September 2011 she gave the following detailed description of the man with the knife: "5'9 to 5'11", very skinny, quite dark skin, some type of Afro. I could only see a bit of it. A baseball hat, purple, possibly 'NY' on the front and a hoodie over it. Baggy jeans, a thick black belt, late teens, early 20s, 18 or 19, a hoodie, black with bright colours on it on the back and the front". She remembered a yellow colour in particular and that his eyes were "poppy". This description broadly matched the appearance of the applicant as shown in the relevant CCTV footage, but it is to be noted that it was provided before the video recording had been retrieved. Ms Stokes had attended a VIPER procedure on 6 September 2011, but she did not identify any of the suspects.
17. On 17 January 2012 she was shown still photographs from the CCTV footage and she picked out as the clothes worn by the youth with the knife those worn by the applicant.
18. In evidence she described the man with the weapon as being black, quite thin and about 5' 10" in height. She said his clothing included some bright colours, and his top included a significant amount of yellow. He was wearing a purple baseball cap with the design "NY" on the front, over which there was a "hoodie" (also with bright colours on the front). He was wearing jeans that were partially coloured red and yellow with a black belt. He was quite young, 17 or above. She saw some short but bushy hair sticking out over his ears. As for his companions, one was black – she could not remember his clothing but he was under 20 and was about 5'9" tall. The third black male wore a v-shaped bandana round his neck like a scarf. His hair was arranged in short plaits, in cane rows.

Other evidence

19. CCTV footage revealed the applicant, Granville and Smith moving away from the area. The applicant had removed his cap and the distinctly coloured and patterned top which he was now holding in front of him. The other two men had not changed their clothes.
20. Mr Grisales died at 15.13 the following day (1 September 2011) from a single stab wound to the left side of his chest, which had penetrated his heart. There were no signs of defence-type injuries on the deceased's body.
21. Officers searched the applicant's family home on 2 September 2011 but the applicant was not present. The clothing that he had been wearing during the incident was not found (save perhaps for an Emporio Armani shirt); there was a knife scabbard under the bed.
22. On 3 September 2011 the applicant, Granville and Smith attended at the offices of a firm of solicitors, Joseph Hill & Co, when it is said they spoke with Mr Hill. In due course the latter represented the applicant and Granville but Smith transferred to a separate firm of solicitors, Farradays.
23. The applicant was arrested on 5 September 2011 when he attended Edmonton Police Station, accompanied by a representative of Joseph Hill & Co. He was arrested on suspicion of the murder of Mr Grisales. The applicant said in evidence that he handed himself in with Granville because the police "had their names". In interview, during which he was accompanied by an appropriate adult, he simply relied on a prepared statement in the following terms:

"On Wednesday 31^st August, 2011 I was with Courtis Granville and another man whose name I am not willing to supply at this stage. I will refer to that man as "A". During the early evening of that day we were walking along College Close in Edmonton. We were going to Sainsbury's. As we walked along College Close I saw 2 girls who are known to myself, Courtis and man "A". Those girls' names are Ashley and Tamiesha. Tamiesha lives in the corner house in College Close. As we passed, Tamiesha she said that she wanted to speak with my friend "A". Tamiesha and "A" were talking to each other whilst I waited with Courtis. We were just around the corner but still in College Close. There is an area where there is a bush, a tree and grass and on the grass was some spiky things like concors (conkers) which I think had fallen from the tree. Myself and Courtis started throwing them at each other. Ashley had joined us at that time. A very short time later myself and Courtis started throwing the spiky objects at Ashley and Tamiesha and also at man "A". We did this recklessly and one of the spiky objects went close to a man who was walking in the street. I shall refer to him as "B". This man started shouting and swearing at me. I was shocked. I cannot recall what the man "B" said but it was aggressive and abusive. He was very angry. I was closest to him. The man crossed the road and picked up a skateboard which was on the floor outside Tameisha's house. He came at me very quickly. He tried to hit me on he head with the skateboard twice. I blocked each of his attempts to hit me with my left arm. He was holding the skateboard with both hands. The man was very close to me at this time. I punched him in the face. I punched him with my right hand. I did so in self-defence. I felt that with the skateboard he could cause me serious injury. Whilst I was being attacked I heard Tamiesha say "A" "Take the knife" and I then heard her say something like "take this". I did not actually see Tamiesha give anything to anyone.

After I punched "B" once I backed off. "B" was still in front of me holding the skateboard above his head. I saw my friend "A" appear to punch "B" in the chest. I saw blood on "B's" T-shirt. I ran away down College Close. My friends "A" and Courtis were running in the same direction. I did not know that Tamiesha was in possession of the knife at any time prior to the time when I heard her say "A" "Take the knife". I did not know or suspect that anyone might be in possession of a weapon. I was not involved in any violence towards "B" prior to the time when I punched him on one occasion only in the face and I did this in self-defence because at the time I was under attack. From the time when "B" picked up the skateboard to the point when I saw blood on "B's" T-shirt was about 20 seconds. Everything happened very quickly. The only injury that I was responsible for inflicting on man "B" was the punch to his face and that was in self-defence".

24. The applicant did not answer any of the questions put to him by the police in interview.
25. Granville also surrendered on 5 September 2011. He provided the police with an account that was broadly similar to that of the applicant. They both blamed a "man A" for the murder but they did not identify him to the police.
26. On 6 September 2011 Mr Casey was invited to attend an identification procedure. He did not pick out the applicant as the person whom he had seen lunging towards Mr Grisales with a knife. Nonetheless, on the same day the applicant was charged with the murder of Mr Grisales.
27. On 14 September 2011 the applicant's mother, Sandra Espeut, provided a statement to the police identifying "man A" as Smith.
28. On 21 September 2011, police officers spoke with Smith at his home, when he denied he had been present during the incident. In a later ABE interview at the police station Smith claimed that the applicant had confessed to the murder when they had both been with Romario Melhado.
29. It is to be noted that Melhado denied in evidence that this conversation had taken place. Melhado also testified that Smith confessed to him, and that he had been told by Shay Williams, Tamisha Williams' brother, that Mr Grisales had been stabbed by Smith. However, his reliability was undermined by the contents of his ABE on 13 October 2011 when he told the police that he knew nothing about the murder of Mr Grisales (contrary to some extensive details concerning the incident that he said in evidence had been provided to him during September 2011.)
30. Notwithstanding that denial by Smith on 21 September 2011 of involvement in, or presence at, the incident, Ms Espeut recorded on her mobile telephone a conversation she had with Smith two days later, on 23 September 2011. She provided this to the police two months later, on 25 November 2011. The exchange, as it appears in the transcript, begins with the person who is said to be Smith stating "they say someone say it was me". Thereafter, the conversation includes the following extracts:

"Female: "so you now handing yourself in again."

Male: "yeh, I'm going to have to now, I'm going to have to now, they come to my house already."

Female: "yeh but you can't make Ochaine go down for that Daniel."

Male: "I know".

Female: "when you know Ochaine did not do it."

Male: (INAUDIBLE) "I know that."

Female: "eh."

Male: "I know that."

Female: "its hard for Ochaine, its hard for Ochaine Daniel."

Male: "I know […]."

[…]

Female: "okay an what you gonna tell them."

Male: "I'm just like gonna. I told my solicitor that I said I'm gonna hand, their like all right, well I just like going to have to defend you and say yeh."

[There was then reference to Courtis Granville, which included the following:]

Male: "[Granville] say that he was gonna punch me up and [INAUDIBLE]."

Female: "no, punch you up for what."

Male: "and drag me to the police station."

Female: "no he not punch you and drag you to no police station."

Male: "that what Courtis told me."

[In the context of a conversation about bail, the following was said:]

Male "by how Courtis get bail."

Female: "I don't know. I don't know how Courtis get bail and everything is just down on Ochaine, its just everything is just down on him. He stressed out."

Male: "for real, yeh but I'm going in there, but I just wanna know how Courtis is meant to be all three of us in, no, a yeh, three of us yeh, I'm meant to do the most."

Female: "yeh."

Male: "then not even Ochaine and Courtis meant to do the same amounts, cause Ochaine defended himself."

Female: "yeh."

[…]

Female: "yeh so what about the girl she going."

Male: "she, she I don't know, she gone disappear; I don't know where she is."

[…]

Female: "oh, she gonna get herself in problem to."

Male: "yeh yeh for passing."

Female: "yeh because are you gonna say what she did."

Male: "yeh I have to, I have to. I'm gonna say I defend, I defended myself, my friends, but she gave it to me. And I'm going to say what she was doing with the knife right outside her house [INAUDIBLE] and ting."

[…]

31. Smith did not "hand himself in", and instead he was arrested on 19 October 2011 on suspicion of perverting the course of justice. He provided the police with a prepared statement in which he accepted he had been present at the scene, but otherwise he denied involvement in the stabbing. He referred to threats and persuasion to which he had been subjected by associates of the applicant. He was charged with the offence of perverting the course of justice. Those proceedings were discontinued on 1 January 2012.
32. The applicant's case at trial was that Danele Smith, who been passed the murder weapon by Tamisha Williams, had stabbed Mr Grisales. He accepted in evidence that he had been involved in the altercation at College Cross. He said he saw Smith standing in front of Mr Grisales from where he punched him in the chest, and that about 5 seconds later Mr Grisales started to bleed. The applicant testified that he then ran away, but as he did so he looked back and saw that Granville now had the knife which he was waving about. He then met up with Granville and Smith behind 'the Salon' hairdressers, at which stage Smith indicated he was responsible for the stabbing, having been given the knife by Williams. The applicant claimed that Granville said that he had hidden the knife.
33. The applicant called Granville whose account was that the applicant had not killed Mr Grisales. Instead, he claimed that although he did not see any weapon, he heard Tamisha Williams say "here's the knife, take the knife". After that Smith hit out in a punch-like motion, causing Mr Grisales to step back and to stumble. Shortly afterwards he saw blood on Mr Grisales's T-shirt. Granville did not agree with the applicant's suggestion that he (Granville) had been waving the knife around after Mr Grisales was stabbed. Indeed, he denied having seen the knife at any stage during the incident.
34. The applicant gave evidence about four issues which he had not set out in the prepared statement he gave to the police on 5 September 2011. First, that about 20 minutes after the stabbing Smith, in the presence of Granville, confessed to the stabbing. Second, that shortly after leaving the scene he discarded a number of items of his clothing in a bin near to a friend's house and he put his jacket under a baby bath in the garden of his home. Third, he left College Cross within moments of the stabbing (and before Smith and Granville) which meant that he could not have been the man seen by Mary Stokes. Fourth, as he ran away, he turned and saw Granville waving the knife, which meant that two of his companions had held the knife during the incident, and that the person Mary Stokes saw with the knife was unlikely to have been the person responsible for the stabbing.

The Grounds of Appeal

Ground 1: The First Recorded "Confession" of Danele Smith

Introduction (Ground 1)

35. Mr Bromley-Martin Q.C., on behalf of the applicant, complains that although on 20 April 2012 the judge ruled that the digital recording of the 23 September 2011 conversation between Smith and Ms Espeut (see [30] above) was admissible, on 25 April 2012 he erred by later ruling that it could only be introduced during the defence case as part of the evidence of Ms Espeut (following an indication by the defence that she was to be called). In outline, it is contended that this improperly prevented Mr Bromley-Martin from asking questions about the conversation during his cross-examination of prosecution witnesses, and he was prevented from introducing it during his re-examination of the applicant (see below).
36. In advance of the trial, the prosecution, in its Pre-Trial Agenda dated 9 April 2012, set out its position on this issue. It argued that Smith, along with Williams, should give evidence if statements on their part were to be relied on. It was suggested by the Crown that the applicant or the judge should call them, but in either event the defence should be permitted to cross-examine these individuals. Mr Edis Q.C. for the Crown submitted that introducing hearsay evidence from these individuals should only be contemplated if they refused to cooperate.
37. However, the judge concluded on Friday 20 April 2012 that neither the court nor the defence could properly be expected to call Williams or Smith. As a consequence, certain hearsay evidence was admitted during the trial as to the contents of conversations between Williams and a police officer, along with evidence that Smith had allegedly confessed to the applicant, Granville and Romario Melhado.
38. Following this decision by the judge, the prosecution submitted on Monday 23 April 2012 that the introduction of the recorded conversation on 23 September 2011 should be contingent on Ms Espeut giving evidence as to the circumstances in which the recording was made. It was suggested that it was likely that there had been other conversations between Smith and Ms Espeut (the telephone records revealed extensive telephone contact between them), and therefore it was possible that not all of what was said on 23 September 2011 had been recorded. Furthermore, the prosecution maintained there was a significant risk that Ms Espeut was a part of an attempt to enable the applicant to present a false defence, namely that Smith had stabbed Mr Grisales in defence of the applicant. The prosecution submitted that there were a number of issues about which Ms Espeut should be questioned:

i) On 17 June 2011 she had called the police because the applicant had threatened her with a kitchen knife and a shovel when she tried to get him out of bed to go to school. He was still behaving violently when the police arrived and he was arrested. Ms Espeut made a statement on the same day supporting this account, albeit 4 days later (on 21 June 2011) she made a further statement indicating she did not want to give evidence against her son. However, she did not suggest the earlier allegation was incorrect. Ms Espeut did not attend at the trial and as a result the prosecution offered no evidence. (It is of note that the prosecution decided only to seek to introduce this evidence if Ms Espeut gave evidence because of the evidential difficulties that existed in her absence, and it did not form part of the bad character evidence otherwise admitted against the applicant.)

ii) Kayan Brown, Ms Espeut's partner, acted as the appropriate adult for Granville when he attended at the police station. She gave evidence during the defence case that Granville had told her, when they were alone on this occasion, where he had disposed of the murder weapon, which he had picked up after the stabbing. She claimed that she retrieved it shortly afterwards. She then hid the knife under a stone in her garden until, following discussions with Ms Espeut, she decided to deliver it to the police on the same day that Ms Espeut's telephone containing the 23 September 2011 conversation between Smith and Ms Eseut was provided to the police: 25 November 2011. There was an issue at trial as to whether this was an honest account, although the prosecution submitted, inter alia, it was highly significant that the applicant's family had control over the murder weapon.

iii) Ms Espeut was involved in concealing at least one item of the applicant's clothing from the police: his coat. Ms Espeut was asked as to its whereabouts when the police were searching for it on 17 October 2011. In response she merely smiled.

iv) From the defence application to introduce hearsay evidence, it was clear that Ms Espeut claimed that Smith had made a further "confession" to her by telephone which she indicated was overheard by two social workers via a speakerphone. The three relevant witnesses had been traced by the prosecution and they denied that this event had taken place.

v) Ms Espeut was of bad character.

vi) She had been present when Granville visited her son in prison, when they had the opportunity to discuss their evidence.

39. An important limb of the prosecution's case was that there was clear material from which the jury could conclude that a number of those present at the killing had attempted to pull the wool over the eyes of police, concealing what had occurred. This was to be inferred from the fact that three of them had attended together at the offices of Joseph Hill on 3 September 2011. Thereafter, the applicant and Granville both went to the police station on 5 September 2011, believing the police had their names, when they provided written statements in broadly similar terms in which they admitted presence at the scene and claimed that man "A", acting in self defence, had stabbed Mr Grisales. However, on the prosecution's case this plan fell apart when the applicant was charged with murder. It then became necessary to unmask man "A" as Smith, a step taken by Ms Espeut. Furthermore, there was evidence that when, on 21 September 2011, Smith denied involvement in the incident, pressure was brought to bear on him to fall in line with the accounts given by the applicant and Granville. As set out above [31], in the prepared statement he provided to the police he spoke of threats and persuasion.
40. Against that background, and bearing in mind the equivocal or uncertain nature of Smith's utterances during the conversation, the prosecution argued that it was apparent Smith was expressing only a "guarded willingness" to speak to the police in order to assist the applicant. The prosecution submitted that it was in the interests of justice for the jury to be in a position to resolve whether he was in fear of Ms Espeut and her associates, whether he was simply "fobbing her off" or whether he was truly admitting an offence that he had committed. Absent Smith as a witness, it was suggested that these various options could only properly be addressed if Ms Espeut gave evidence.
41. Mr Bromley-Martin argued that this conversation was admissible without calling one or both of those involved, and he sought to introduce it as part of his questioning of a police officer during the prosecution's case. He suggested that the judge was not entitled to limit the circumstances in which it could be introduced. Furthermore, Mr Bromley-Martin opposed the admission of the prepared statement that Smith gave to the police when he was arrested on 19 October 2011.
42. The judge, in his reserved ruling on 25 April 2012, indicated that "the ideal scenario in terms of attempting to unravel all of this" would have been for Smith to have testified. However, the judge recognised that it was highly unlikely that evidence useful to the jury would have been forthcoming if anyone attempted to call him.
43. As to the submission that the applicant should be permitted to introduce the details of the conversation of 21 September 2011 via a police officer, the judge ruled that this would involve the introduction of multiple hearsay, thereby failing to meet the requirements of section 121 Criminal Justice Act 2003 ("CJA"). Even if that conclusion was erroneous, the judge decided that permitting the applicant to introduce this evidence by questioning a police officer who had merely been handed the digital recording would have the effect of depriving the prosecution of an opportunity to explore the whole background of the conversation, including earlier discussions between Smith and Ms Espeut, and this would be grossly unfair and undermine the spirit and reasoning behind the justification for admitting this evidence. The judge concluded that the "confession" was susceptible to one of two explanations. First, it represented the truth of what occurred or, second, Smith said what Ms Espeut wanted to hear because of the pressure to which he had been subjected. The judge concluded that this could not be satisfactorily investigated unless she was called to give evidence.
44. Additionally, the judge ruled that the jury should not hear a partial account from Smith, as advocated by Mr Bromley-Martin, but instead the prepared statement of 19 October 2011 was to be admitted in conjunction with Ms Espeut's recording of the conversation with Smith on 23 September 2011 and Smith's false alibi that was provided to the police on 21 September 2011.
45. Against that background it is argued by Mr Bromley-Martin that the applicant had been prevented from "establishing Danele Smith's relevant and admissible confession during the prosecution case". It is suggested that it should have been open to the applicant to ask one of the police witnesses whether, first, they accepted the voices were those of Ms Espeut and Smith and, second, they agreed that Smith had admitted that he had been handed the knife by Williams which he used to stab Mr Grisales. The applicant submits that Smith's alleged confession was first-hand hearsay, and it was irrelevant how many individuals may have been involved in its transmission prior to being provided to the court. It is suggested that the judge, in ruling that the admissibility of the evidence depended on Ms Espeut giving evidence, confused the interests of justice test with the mechanism by which admissible evidence ought to be introduced. Once it had been decided that the evidence was relevant and admissible, the judge had no authority to rule as to the route of its admissibility. The court is reminded that the prosecution had been in possession of the recording for 5 months prior to the trial, providing ample opportunity to investigate the identity of those speaking.
46. Additionally, it is contended that the prosecution, contrary to its pre-trial position and at a late stage, improperly adopted the stance that it intended to introduce bad character evidence relating to the applicant and Ms Espeut if the latter gave evidence. Once this indication had been given, the applicant decided not to call Ms Espeut. It is starkly submitted that the prosecution deliberately sought to introduce the evidence of bad character in questioning Ms Espeut, rather than during the prosecution's case, in order to discourage the applicant from calling Ms Espeut to give evidence about Smith's suggested confession. It is submitted that this impermissible stratagem was successful and, as set out above, the defence decided not to call Ms Espeut. Furthermore, it is observed the prosecution's approach would in any event have made it necessary for the applicant to apply to be recalled in order to address this evidence from Ms Espeut.
47. The prosecution is criticised for having not made a written application to introduce this evidence under Rule 35.4 of the Criminal Procedure Rules:

"Notice to introduce evidence of a defendant's bad character

(1) This rule applies where a party wants to introduce evidence of a defendant's bad character.

(2) That party must serve notice on—

(a) the court officer; and

(b) each other party.

(3) A prosecutor who wants to introduce such evidence must serve the notice not more than—

(a) 28 days after the defendant pleads not guilty, in a magistrates' court; or

(b) 14 days after the defendant pleads not guilty, in the Crown Court

[…]"

48. It is highlighted that the oral application was made out of time and the judge had not given permission to proceed without a written application, made in accordance with the Rules. When the prosecution first referred to this evidence (in its pre-trial agenda dated 9 April 2012) it was suggested that it was potentially admissible under section 101(1)(g) CJA (an attack on another person's character). At that stage the prosecution did not refer to section 101(1)(d) (an important matter in issue such as propensity). It is observed that no evidence was served in this context, and equally no application was made to admit this evidence was made during the course of the prosecution case under section 114(1) CJA, in the interests of justice. Accordingly, it is emphasised that this material was not relied on to rebut any aspect of the defence case and it had not arisen "ex improviso".
49. It is contended that the evidence of the June 2011 incident between the applicant and Ms Espeut was inadmissible because it related to an isolated event, the facts of which were disputed and it did not result in a conviction. In the result, it is suggested it would have led to inappropriate satellite litigation. Furthermore, it principally concerned a family disagreement, albeit it encompassed a threat (with a kitchen knife) made to the police officers who attended at the scene. It is argued that in those circumstances it was an allegation that stood alone and that it concerned circumstances that were very different to the present incident. It is contended that this incident did not establish a predisposition to commit an offence of the kind with which he was charged, namely murder, and that in any event its prejudicial effect far outweighed its probative value.
50. The applicant argues that introducing the June 2011 incident was an attempt by the prosecution to use evidence of bad character to bolster a weak case and that in ruling on its admissibility the judge wrongly took into account the nature of the defence case.
51. There are two yet further discrete elements of this ground of appeal. First, it is suggested that the judge erred in refusing to allow Mr Bromley-Martin to question Detective Chief Inspector Beadle about the 23 September 2011 conversation, following evidence from Mr Beadle to the effect that there was insufficient evidence to charge Smith and that the prosecution's view as to the identity of the perpetrator (the applicant) had remained unchanged. The judge is said mistakenly to have believed that this issue was dealt with in cross-examination, followed by re-examination. Instead, this matter arose during the officer's evidence in chief, when he expressed his views as to the extent of the evidence against Smith. We note that in the course of the summing up the judge directed the jury that this evidence from DCI Beadle was irrelevant. It is contended that the judge should have discharged the jury once this evidence had been given, particularly given – as it is submitted – there was "ample evidence" to justify charging Smith with the murder of Mr Grisales.
52. Second, it is contended that Mr Bromley-Martin should have been permitted to re-examine the applicant about the conversation between Smith and Ms Espeut once Mr Edis had cross-examined the applicant on the basis that he had recently invented his evidence that Smith had confessed to the applicant that he had killed Mr Grisales shortly after the incident. It is argued that his "confession" to Ms Espeut on 23 September 2011 increased the likelihood that he had confessed to Williams.
53. The prosecution observes that DCI Beadle was only called because the applicant's counsel had elicited in cross-examination of a junior officer that Smith remained on police bail for the offence of murder. The prosecution, fearful that this could cause a misleading impression, called the Detective Chief Inspector given the Crown had grounds to suspect that two people had been involved in the murder of Mr Grisales since the incident had involved a number of males.

Discussion (Ground 1)

Discretion to exclude hearsay

54. The first aspect of this ground of appeal is whether – as Mr Bromley-Martin contends – the judge had no discretion and was obliged to permit the conversation to be admitted during the prosecution case (for instance via DCI Beadle) once the court had ruled that Smith's alleged confession was admissible, or whether he was entitled to stipulate that the person to whom the statement had been made should give this evidence. In answering that question it is to be borne in mind that Ms Espeut's account of this conversation (if she had given evidence and introduced the digital recording on her mobile telephone), would have been hearsay. Smith's account as to what had occurred was made otherwise than in oral evidence in the proceedings and it was made with the purpose that it was to be believed by Ms Espeut (see R v Finch [2007] EWCA Crim 36; [2007] 1 Cr. App. R. 33, at paragraph 4). Further, an out-of-court confession or admission is an exception to the common law hearsay rule only to the extent that it is to be used against the person who made it, as explained by Lord Steyn in R v Hayter [2005] UKHL 6 at [7]:

"7. A voluntary out of court confession or admission against interest made by a defendant is an exception to the hearsay rule and is admissible against him. That was so under the common law. That is also the effect of s.76 of the Police and Criminal Evidence Act 1984 ("PACE"). (Given the wide definition of confession in s.82(1) of PACE I will simply refer to confessions.) A confession is, however, generally inadmissible against any other person implicated in the confession. The rationale of the rule was stated in the twelfth edition (1936) of a Digest of the Law of Evidence by Sir James Fitzjames Stephen as follows (at 36):

'A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only .' ...Emphasis added.)

(See also Phipson on Evidence, 18^th edition, 28-16)"

55. If DCI Beadle had introduced the recording, it would have been second-hand hearsay: his evidence would have been to the effect that Ms Espeut told him that Smith had described to her what had occurred during a conversation on 23 September 2011 which she had recorded on her telephone.
56. Additionally, it is to be noted that Ms Espeut was in a position to provide critical ingredients of the circumstances of this conversation, including who was speaking, when the conversation took place and the context in which it occurred. Although the judge, for the purposes of his ruling, proceeded on the basis that this was a conversation between Smith and Ms Espeut, as far as this court is concerned we are unaware of any evidence identifying the voices (the applicant refers only to scientific analysis by a police forensic scientist relating to the integrity of the recording). Mr Edis highlights that for the police officers it would be no more than their opinion or belief as to who was speaking, given no formal process of voice recognition appears to have occurred. And even allowing that the defence rather than the prosecution sought to rely on this material, none of the preconditions of admissibility – the safeguards set out in R. v. Flynn and St John [2008] 2 Cr App R 20 – had been satisfied. It had not been established whether any of the prosecution witnesses were in a position reliably to give voice recognition evidence.
57. It follows that although the judge sustainably ruled that evidence of what Smith said to Ms Espeut was admissible (it was relevant to the issues in the case), he nonetheless had to consider whether it should be admitted as hearsay evidence. The relevant route to admissibility if Ms Espuet was to give this evidence was section 114(1)(d) CJA which provides:

"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—

[…]

(d) the court is satisfied that it is in the interests of justice for it to be admissible.

Additionally, by section 114(2):

In deciding whether a statement not made in oral evidence should be admitted under section (1)(d), the court must have regard to the following factors (and to any others it considers relevant) –

[…]

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence on the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it."

58. However, if this evidence was to be given by DCI Beadle (or another officer), for the reasons set out above it was multiple hearsay, in which case section 121 CJA was engaged, which is in the following terms:

"Additional requirement for admissibility of multiple hearsay

(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless—

[…]

(c)the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.

(2) In this section "hearsay statement" means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it."

59. The reasons for concluding that it was not in the interests of justice to admit this conversation as (multiple) hearsay evidence were rehearsed by the judge at length. There was a clear basis for suggesting that a number of those present at the killing had attempted to deceive the police as to the true identity of the perpetrator, thereby concealing what had occurred. The applicant, Smith and Granville attended together at the offices of Joseph Hill & Co on 3 September 2011. Thereafter, the applicant and Granville both went to the police station on 5 September 2011 and provided similar written statements in which they admitted presence at the scene and claimed that man "A", acting in self defence, had stabbed Mr Grisales. However, when the applicant was charged with murder Ms Espeut (the applicant's mother) almost immediately revealed that man "A" was Smith. Of particular significance, there was evidence that after Smith denied involvement in the incident when he spoke to the police on 21 September 2011, pressure was applied on him to support the accounts given by the applicant and Granville: in the prepared statement he provided to the police on 19 October 2011 he spoke of threats and persuasion.
60. What Smith was communicating during the conversation was far from clear (e.g. "yeh I have to, I have to. I'm gonna say I defend, I defended myself, my friends, but she gave it to me. And I'm going to say what she was doing with the knife right outside her house [inaudible] and ting."). We accept the prosecution contention that Smith demonstrated only a "guarded willingness" to speak to the police in order to assist the applicant, and it is far from clear that what he was intending to say represented what he believed to be the truth: "I'm gonna say/I am going to say" are ambiguous expressions and create doubt as to whether the account he proposed to give was false or true. Without Smith or Ms Espeut as a witness the prosecution would have been placed at a considerable disadvantage, and there would have been a wide range of critical questions relating to whether this was properly to be described as a genuine confession that would have been left unanswered. She was available to testify (indeed, the applicant had indicated his intention to call her).
61. In all the circumstances, it was in the interests of justice for the jury to be in a position to resolve whether he was in fear, whether he was saying what Ms Espeut wanted to hear simply to avoid a difficult situation or whether he was truly admitting an offence that he had committed. Given the extent of the contact between Smith and Ms Espeut and the clear allegation of pressure set out by Smith in his statement of 19 October 2011, the judge sustainably decided that admitting second-hand hearsay evidence of this conversation would not be in the interests of justice.
62. We therefore reject the submission by the applicant that once the judge had ruled that the evidence was admissible, he had no discretion as regards the suggested route of introduction. The judge was wholly entitled to stipulate that – in the absence of Smith – the person to whom he had spoken (Ms Espeut) should give this evidence and that second-hand hearsay evidence of the alleged confession (e.g. from DCI Beadle) was inadmissible.

The impugned tactics on the part of the prosecution

63. We unhesitatingly dismiss the allegation that has been made by Mr Bromley Martin to the effect that Mr Edis, when he indicated he intended to raise certain matters in questioning Ms Espeut, resorted to inappropriate tactics in order to dissuade the applicant from calling her. We deprecate that these allegations were made without any justification that survives sensible scrutiny. The issue of the admissibility of this conversation developed during the trial, and the central importance of Ms Espeut in this regard only became clear once the judge rejected the prosecution submission that the defence (or the court) should call Smith if the conversation of 23 September 2011 was to be relied on. Thereafter, as set out above, Mr Edis properly identified a number of matters about which he sought to question Ms Espeut if she was called:

i) The 17 June 2011 incident (when Ms Espeut called the police because the applicant had threatened her with a kitchen knife and a shovel). The reasons for not attempting to rely on this material as bad character evidence during the prosecution case were self-evident. Although Ms Espeut made a statement setting out the assault by her son, she later indicated her unwillingness to give evidence against him. This did not result in a conviction, and absent evidence from Ms Espeut it was likely to have been difficult to establish that this was bad character evidence, given her equivocal and untestable attitude to the original complaint. However, if Ms Espeut was to be called, it then became possible properly to investigate whether she accepted the contents of her original witness statement on the subject, without risking extended satellite litigation.

ii) This witness was likely to be able to assist as to how a knife that was likely to have been the murder weapon was in the possession of the applicant's family after the incident.

iii) The reason Ms Espeut failed to reveal on 17 October 2011 where the applicant's coat had been hidden.

iv) The circumstances and justification for what appeared to have been a false claim by the applicant that Smith had confessed in the hearing of two social workers.

Procedural objections and bad character

64. The arguments relating to procedure – most particularly, the failure by the Crown to make a written application prior to the trial to introduce this evidence of bad character – are without foundation. Given the developments during the trial to which we have just referred, it is unsurprising that this was not addressed in advance. The defence had been aware that the prosecution wished to rely on this material (as was clear from the pre-trial Agenda prepared by Mr Edis, dated 9 April 2012) and there is no prohibition on the prosecution applying to introduce bad character evidence after it has closed its case. The critical issue is whether the circumstances of the admission of the evidence were unfair. The judge had generally permitted the prosecution to lead evidence of the applicant's bad character, an issue addressed later in this judgment. As regards this particular incident, the judge indicated that it satisfied sections 101(1)(g) (the defendant has made an attack on another person's character) and 101(1)(d) (it is relevant to an important matter in issue between the defendant and the prosecution). Focussing on section 101(1)(d) CJA the judge ruled:

"If true the incident on that date demonstrates a willingness on the part of the defendant when confronted with a relatively insignificant but volatile situation, and when challenged, to act in a highly impetuous way by using a kitchen knife in a threatening and aggressive manner. There are, therefore, significant similarities between the facts of the 17 June incident and the incident with which this jury is concerned, albeit that in the earlier incident the defendant was disarmed and so did not in fact actually used the knife so as to cause injury. The clear implication however of the manner in which the incident is described by the mother is that he may well have done if she had not been able to disarm him. "

65. Although this was one incident, it was close in time to the index offence and it involved a number of highly similar features. As the judge concluded, the prosecution acted fairly by not attempting to introduce any material relating to this incident until Ms Espeut gave evidence. The authorities in this area, which it is unnecessary to rehearse, clearly permit one event to be used to prove bad character, depending always on overall circumstances. For the reasons set out below [80] this was not a situation where evidence of bad character was impermissibly being used to bolster a weak case, because the evidence linking the person who was hit with the skateboard (the applicant) and the stabber was clear-cut. The area of dispute as regards Ms Espeut's evidence was narrow, given the applicant suggested he had threatened to kill himself as opposed to making threats to his mother, and resolving that issue would not have involved significant court time. The judge indicated that the applicant would be permitted to return to the witness box to address this evidence and – notwithstanding Ms Espeut was a defence witness – he would have permitted Mr Bromley-Martin to cross-examine her on this issue.

Application to cross examine DCI Beadle on the "confession"

66. We address next the argument that the judge erred in refusing to allow the applicant to question DCI Beadle about the conversation between Smith and Ms Espeut after the officer suggested, first, there was insufficient evidence to charge Smith and, second, that the prosecution continued to hold the view that the applicant was the perpetrator. Whether this topic arose in evidence-in-chief or in cross-examination of DCI Beadle, it was only under consideration because Mr Bromley-Martin had sought to establish that Smith may have been responsible for killing Mr Grisales: he elicited from a junior officer that Smith was on bail for this murder. That self-evidently opened up the issue of the prosecution's stance towards Smith and, if it was left without further explanation, it potentially created the wholly misleading impression that there was additional evidence against Smith - but withheld from the jury – that had led the prosecution to consider he was a possible perpetrator. Therefore, DCI Beadle's assessment was only given because the applicant decided to explore the prosecution's stance towards Smith, and in those circumstances it was clearly correct for the Crown to explain that he was not on bail for murder because he was suspected of having stabbed Mr Grisales. Instead, Smith had been suspected only on the basis that this was a joint-enterprise attack, albeit the Crown ultimately did not pursue a charge of murder against Smith on this basis. The history set out above did not entitle the applicant to seek to introduce inadmissible hearsay evidence, which the prosecution in any event did not consider provided a basis for suspecting Smith had stabbed Mr Grisales. Furthermore, we repeat that in the course of the summing up the judge directed the jury that the opinion of DCI Beadle as regards Smith was "utterly irrelevant".

Application to re-examine the applicant on the "confession"

67. The contention is equally unsustainable that Mr Bromley-Martin should have been permitted to re-examine the applicant about the conversation between Smith and Ms Espeut once Mr Edis had cross-examined the applicant on the basis that he had recently invented his evidence at trial that Smith had confessed shortly after the incident to the applicant that he had killed Mr Grisales, as set out below. During his evidence the applicant claimed that a number of things had occurred that had not been included in his defence statement (see [34] above). When Mr Edis asked the applicant if he had recently made up the suggestion that Smith had confessed shortly after the murder, Mr Bromley Martin intervened to suggest that this contention was contained within the applicant's proof of evidence. Although when the jury left court the relevant section of the proof was not produced, Mr Bromley-Martin read out a passage in which the applicant claimed he had said to Smith "Why did you stab that man?". As Mr Edis observes, this was not an admission by Smith, and we do not accept Mr Bromley-Martin's suggestion that an admission is to be "implied". Given this was one of a number of matters that had not been included in the defence statement, the prosecution was entitled to investigate whether it had been recently made up. Furthermore, there is no logical basis for the contention that Smith's "confession" to Ms Espeut on 21 September 2011 reduced the likelihood that the applicant had recently invented an additional alleged confession shortly after the murder on 31 August 2011. These were two wholly unconnected events. Prosecuting counsel had asked an appropriate question, and once Mr Bromley-Martin objected it was not pursued. Therefore the judge correctly refused to permit the applicant to introduce the 21 September 2011 conversation during re-examination.

Ground 2: The Second Recorded "Confession" of Danele Smith

Introduction (Ground 2)

68. On 30 May 2012 a young man, who we refer to as "witness B" in this judgment for his protection, provided an unsigned statement to the applicant's solicitors to which he exhibited a voice note/digital recording of Smith ("Dmadz") allegedly confessing to stabbing Mr Grisales. This recording was provided to the police on 2 July 2012. Witness B gave evidence before us on 23 July 2013. His testimony, in summary, was that he had been imprisoned for possessing class A drugs with intent to supply, and he was released on 9 May 2012. Smith contacted him on his Blackberry mobile telephone via the Blackberry Messenger service. During the exchange of text messages that followed, Smith allegedly asked witness B if he had seen the applicant ("Spider/Spida"). Witness B told Smith that when he encountered the applicant in prison, the latter was talking about Smith. Witness B told Smith that the applicant had been unhappy, upset and stressed and he asked Smith "Are you really going to let him stay in gaol for this crime which he did not do?/Are you going to let him ride the bird in gaol?". Smith allegedly replied that he did not know what to do. Shortly afterwards witness B asked what happened on the night, to which Smith replied he was going to send a voice recording (a voice note) because it was going to take too long to type the reply. The text of the messages that were allegedly exchanged as set out above have not been retrieved but the voice message was as follows:

"Yeah, so anyway this what happened yeah, me, him and Courts walking down the road innit, and obviously he's going out with that that Tammy, that Tammy girl at the time innit, so obviously mans seen her now, mans gone over to her innit, but these times they weren't too talking innit, so mans gone over to her and start talking and Courtis and Spider start rushing man innit, so man like chill out bruv, hold out like, then man like little kids start dashing conkers and thing like and then obviously the man walk past yeah, one hit him, my man went across the road, got the skateboard licked Spider like 3 times in his head (inaudible – mine was like?), my man like Spider was busy/dizzy yeah and then man just went over to him and just yeah fuck, do my ting basically."

69. During his evidence witness B was asked to interpret or explain what Smith was saying during the voice message. When asked what "do my ting" meant, the witness replied "From what I've heard, I've heard the guy was stabbed, so he's saying that he's gone over to him and done his thing, and so he's gone over there and stabbed the guy." However, the witness also stated that "do my ting" meant simply that he had done something, although he maintained that he considered this meant Smith had committed the murder. Not long after this exchange, witness B was with a friend (whom he was not prepared to name) when the applicant telephoned this unnamed friend. The applicant and witness B spoke, including about the voice message. Thereafter, the witness received a telephone call from Ms Espeut to whom witness B sent a copy of the voice message (to her telephone). The witness suggested during his testimony that the text messages had been deleted and that in any event the telephone had been damaged as a result of overheating. This latter contention conflicted with the account he provided to the representative from Joseph Hill & Co on 15 April 2013 when he said the police had seized the telephone, and that he had been able to listen to the voice recording during the month before he met with the solicitors.
70. It is the applicant's contention that the evidence of witness B and the contents of the voice note are capable of belief and they afford a ground for allowing the appeal. The credibility of this material is said to be "self-evident" ("palpably capable of belief"); it is averred that it is clearly the voice of Smith; and it is suggested that the "content of the recording speaks for itself". Moreover, in elaboration of his submissions Mr Bromley-Martin, having accepted that interpreting the voice message necessarily involves an understanding of particular street slang, suggested that this court was bound to accept the interpretation of the meaning of the words provided by witness B. Additionally, he argued that the only credible meaning was that Smith had stabbed Mr Grisales. It is said that the evidence would have been admissible at trial as hearsay evidence under section 114(1)(d) in the interests of justice, and it is noted that it was a confession by a person against his interests.

Discussion: (Ground 2)

71. The account of witness B was not available during the applicant's trial and this court must make its own assessment of this evidence and, in light of that assessment, ask what effect the evidence has on the safety of the conviction (R v Ishtiaq Ahmed [2002] EWCA Crim 2781, paragraph 37). Our central conclusion is that we do not accept that what Smith allegedly said on the voice message to witness B amounts to a confession by Smith that he stabbed Mr Grisales (see [68] above). It is an extremely unclear and ambiguous description of what occurred. The word "man" is used during this short passage to describe the actions of at least three different people: the victim, the applicant and another person. It is wholly unclear who the third – and last – "man" is ("and then man just went over to him") and it is equally uncertain who is being described in that sentence as "him". We do not consider that this tends to establish that Smith admitted that he went over to Mr Grisales, given the identity of the person to whom he is referring is wholly obscure. But of even greater significance, however, is that it is impossible to conclude that Smith was confessing to having stabbed Mr Grisales. "Do my ting" on witness B's own evidence means no more than he did something. It is pure conjecture on his part to suggest that the "something" was to take a knife from Williams and then use it to stab Mr Grisales. It is untenable for Mr Bromley-Martin to submit, as he did in oral argument, that this court is bound to accept the interpretation of the meaning of the words provided by witness B. The witness was simply making an assumption which this court is not in any sense obliged to accept.
72. Added to that speculation and uncertainty is the extent to which there is a clear basis for concluding that some of those present at the killing set about deceiving the police as to the true identity of the perpetrator (see [39] above). A striking pattern has emerged in this case of an attempt to manipulate the court process on the part of the applicant, Granville and Smith, as demonstrated by the similar statements the applicant and Granville prepared at the offices of Joseph Hill & Co, which included references to "man A" in those documents notwithstanding their undoubted awareness of Smith's identity. We have had the advantage of being able to consider all of the evidence on which the applicant seeks to rely on this application, and it is significant that Smith is said to have "confessed" on a number of occasions, not to the police but instead to the applicant, his mother or his associates. To a significant extent these suggested confessions have been in vague and equivocal terms and they have not been tested, and what is alleged to have been said would have provided Smith with ample room to argue, if arrested, that he has been misunderstood or that he had been placed under pressure falsely to implicate himself. Therefore, not only is this wholly unpersuasive evidence standing alone but it also appears to form part a scheme to conceal the identity of the perpetrator of this murder.
73. It follows that we do not consider that the evidence of witness B has any material impact on the safety of the applicant's conviction. The voice message does not amount to a confession on the part of Smith that he stabbed Mr Grisales – the critical passage at the end of the recorded statement is wholly unclear as to its meaning – and, in any event, this material is seemingly part of a coordinated attempt improperly to manipulate the court process by implicating Smith in ways that are designed to enable him to avoid a successful prosecution should he become a suspect. Whether or not this evidence is formally admitted in these proceedings is a technicality that we do not need to resolve: either way, it does not afford a ground of appeal.

Ground 3: The Admission of Danele Smith's "Denial"

Introduction (Ground 3)

74. It is argued that the judge erred in admitting the contents of Smith's prepared statement of 19 October 2011(under section 114(1)(d) CJA) in which he denied responsibility for the death of Mr Grisales. It is submitted, first, that the judge failed to distinguish properly or at all between a confession (a declaration against interest) and a denial (an assertion in his own interests that implicated the applicant). Second, it argued that the prosecution should have called Smith, as opposed to relying on the statement of 19 October 2011. Third, the applicant suggests the judge failed properly to take into account the matters listed in section 114(2) CJA and that, in any event, the evidence of Smith's denial of involvement in the offence was introduced for a reason that never materialised: it was not needed as a counterweight for the conversation between Smith and Ms Espeut, because the defence did not call the latter witness.

Discussion: (Ground 3)

75. The prepared statement by Smith of 19 October 2011 was admitted as part of the prosecution case under section 114(1)(d) CJA because the defence had informed the court that Ms Espeut was to give evidence, as part of the defence case, about the conversation with Smith on 23 September 2011. Therefore, Smith's denial of involvement in the murder of Mr Grisales was only introduced – albeit in anticipation – in order to provide the jury with the complete picture as to whether he was, or may have been, responsible for the stabbing, and whether his suggested confession to her was voluntary and genuine. The applicant changed his mind and decided not to call Ms Espeut once the prosecution had made an application in advance of her evidence that she could be questioned about the matters set out earlier in this decision. In our judgment, the ruling that the prosecution was entitled to introduce various matters in cross-examination of Ms Espeut, leading to a new tactical decision on the part of the applicant, does not render the trial unfair. The judge dealt with the 19 October 2011 prepared statement as follows:

"You heard that Denali Smith, interviewed by the police, said that Ochaine had confessed to the stabbing in Tottenham High Street in the presence of Romario Melhado whereas Romario for his part denied such a conversation had taken place.

You have not, of course, heard from Sandra Espeut nor have you heard from Denali Smith so, as with Tamisha, you need to approach with considerable caution what they have or have not said to others about these events or matters not tested in your presence and hearing by the evidential process of witnesses being called and cross-examined."

76. In light of the defence strategy to introduce the 23 September 2011 conversation, Smith's statement of 19 October 2011 was plainly admissible – it was directly relevant to whether Smith had stabbed Mr Grisales – and the attempt by Mr Bromley-Martin to limit the issues that could be raised with Ms Espeut in cross-examination was unsustainable. Save exceptionally, the evidence of a witness should not be restricted so as to deny another party the opportunity to explore in questions live matters that have arisen in the trial, and about which the individual is able to give relevant evidence. The judge had properly concluded that there was no prospect of Smith giving evidence that would assist the jury, and the defence contention that he should have limited hearsay evidence in this context to declarations by Smith against his interest is without any legal foundation. The hearsay regime established by the CJA does not prohibit the prosecution from introducing evidence that may establish that an individual who is implicated by the defendant did not, in fact, commit a crime, and the applicant has not advanced any jurisprudence to support this argument. The linked submission by Mr Bromley-Martin that Smith's denial of involvement was inadmissible because it was a "previous consistent statement" is equally without any proper basis in law. These circumstances did not engage the general rule of evidence that prohibits a party from introducing statements a witness has made on other occasions which tend to confirm the instant evidence from the witness. These are entirely different circumstances – not least, Smith did not give evidence and the 19 October 2011 statement is relied to contradict, not to establish consistency with, other evidence. These arguments are without any merit.
77. The judge properly admitted this material, having assessed the relevant factors, as follows:

"In seeking to achieve a balance of fairness between both the prosecution and the defence I have no doubt whatsoever that there would a real and serious risk of the jury being misled if they were to hear only a partial account of what Danele Smith said about involvement in these events, thereby from Mr Bromley-Martin's point of view, the jury being told about the plums but not the duff. In my judgment, the jury need to hear the full picture so as to put them in the best possible position to evaluate the veracity and reliability, or lack thereof, of the confession which the defence allege that Danele Smith made to Sandra Espeut, the defendant's mother.

I this regard, and particularly in relation to the admissibility of the Danele Smith prepared statement made to the police, I have had very much in mind the provisions of section 114(2) of the Criminal Justice Act which I am enjoined to take into account in considering whether the prepared statement made by him should be admitted under section 114(1)(d).

Before referring to the matters se out at (a) – (i) of section 114(2), I should emphasise that in addition to those matters, the court is entitled to have regard to any other it considers relevant. As to this, as I have already observed, in my judgment, it is of particular importance for the jury to have the full picture and not just those selected highlights that favour one side.

Turning to the sub-paragraphs of section 114(2). As to (a): clearly the prepared statement has high probative value, if true, both in relation to what happened in College Close and in explaining why Danele Smith said what he did to Sandra Espeut. As to (b): there is of course other eye witnesses as to the events in College Close, but clearly the more direct evidence the jury have of the events, the better able they will be to evaluate and decide the truth of what occurred. As to (c): the evidence is clearly of very great importance as to the context of the case as a whole. As to (d): it can properly be argued that Danele Smith did have strong interests of his own to serve in saying what he did to the police whilst under arrest for murder. With regards to (e): in the light of the different accounts Danele Smith has given at different time, both parties accept, as they are bound to, that his reliability is seriously in issue, which of course is why neither seek to call him. Regarding (f): there is no issue as to the integrity of the circumstances in which the prepared statement was made. As to (g): some oral evidence of the matter stated has been given in the form of eyewitnesses called. As to (h): the defence will be in a position to call Sandra Espeut to set against the contents of the prepared statements. Lastly regarding (i): the absence of Danele Smith from the witness box clearly has the potential for prejudice so far as both sides are concerned.

Overall, weighing the up the pros and cons for both sides from a consideration of the matters in section 114(2) which, in my view are mixed in nature, as I have indicated, I am clear that the defence cannot have it both ways. If they want in, as they do, the Sandra Espeut conversation and the Danele Smith false alibi, the jury must be entitled to have the whole picture to include the later prepared statement."

78. This approach, in our judgment, was faultless. The judge considered all of the relevant issues, and for the reasons set out above he was fully entitled to conclude that the jury should be given the full, as opposed to a one-sided, picture of what Smith had said about his involvement, or lack of it, in the death of Mr Grisales.

Ground 4: The Submission of No Case to Answer

Introduction (Ground 4)

79. The applicant submits there was insufficient evidence for the case to go before the jury. On the basis of the accounts from the witnesses, set out above, it is argued that no jury could properly have convicted the applicant. In particular, the applicant relies on i) the discrepancies in the descriptions of the witnesses as to the appearance of the perpetrator; ii) the extent to which the judge relied on the evidence of Martin Casey and Mary Stokes that tended to indicate that the male who stabbed Mr Grisales had been hit with the skateboard; and iii) the unequivocal evidence of Williams that she had handed the knife to Smith.

Discussion (Ground 4)

80. This argument can be shortly addressed. The Crown candidly accepted that there were certain weaknesses in the prosecution case against the applicant as regards the original descriptions by Mr Casey and Ms Stokes of the man who stabbed Mr Grisales. It was acknowledged that the jury would need to focus on the reliability of evidence they provided at a later stage which tended to identify the clothing of the applicant. However, the jury were not limited to the descriptions of the alleged perpetrator that had been given at the outset of the investigation. Critically, they were entitled to consider the clear link that the evidence established between the only man who the prosecution suggested Mr Grisales hit with the skateboard (the applicant) and the man who stabbed the victim (see, for instance, the evidence of Ms Stokes, set out above). This provided a clear basis for the applicant's conviction, and it was for the jury to assess whether the criticisms of the prosecution's evidence meant that they were nonetheless unsure of the applicant's guilt. That was a decision for the jury at the end of the trial and not the judge on a half-time submission of no case to answer.

Ground 5: Bad Character

Introduction (Ground 5)

81. It is argued that the judge wrongly admitted the applicant's previous convictions (via gateway (g) of section 101(1) CJA). As set out above, this followed the suggested attack that he had made on Smith and Williams, neither of whom were called to give evidence and neither of whom were victims. In support of this contention the applicant relies on the case of R v Nelson [2006] EWCA Crim 3412, which we address later in this judgment [85].
82. Further, the judge is criticised for having not excluded this evidence under section 101(3) CJA on the basis that it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Discussion (Ground 5)

83. At the heart of the applicant's defence was the contention that Williams had provided the knife that Smith then used to stab Mr Grisales. Against that background, the judge admitted the applicant's previous convictions which included a reprimand for assault in February 2009; convictions for three offences of robbery, attempted robbery and battery in September 2009; another offence of robbery and breach of a referral order in November 2009; and a domestic burglary in July 2011. During submissions on this issue the applicant accepted that in these circumstances section 101(1)(g) of the CJA were engaged, but the judge was urged to exclude the applicant's previous convictions under section 101(3) CJA. These provisions are in the following terms:

"Defendant's bad character

Section 101

(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—

[…]

(g) the defendant has made an attack on another person's character.

(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

84. Indeed, before the judge it was argued that the previous convictions of an accused should never be introduced when the person whose character has been attacked is neither a victim nor a witness. The judge rejected this submission as being "clearly wrong" and he concluded:

"In my judgment, the circumstances here are highly unusual whereby the defendant, by way of seeking to exculpate himself for the offence of murder, has chosen to introduce [material] before the jury which inculpates in the murder not one by two others. His attack on their character therefore goes absolutely to the heart of the case and a more serious and substantial attack upon individuals it is difficult to imagine. "

85. In support of the contention that it was impermissible for the applicant's previous convictions to go before the jury, Mr Bromley-Martin relied on the case of R v Nelson [2006] EWCA Crim 3412. However, on analysis this authority simply indicates that although this may not be a regular occurrence, ultimately it will always be a matter for the judge's discretion, depending on the facts of the individual case. The court observed:

"14. We take the gateway aspect of the case first. There is no doubt that the wording of section 101(1)(g), "an attack on another person's character", does not confine that gateway to the situation where a defendant, personally or through his advocate, attacks the character of a prosecution witness. It goes beyond the wording used in the earlier statutory provision which dealt with this area of law, namely section 1(3) of the Criminal Evidence Act 1898, which by paragraph (ii) referred to "imputations on the character of the prosecutor or the witnesses for the prosecution or the deceased victim of the alleged crime." Apart from the case where there was a deceased victim, the earlier statutory provision effectively confined this basis for admitting evidence of a defendant's bad character to situations where there had been an attack during the trial on the character of a prosecution witness, including a person whose statement was read at trial. It did not extend to cases where the defendant attacked the character of a non-witness, save that of a deceased victim (see the decision in R v Lee (1976) 62 Cr App R 33).

15. That has been changed by the 2003 Act, which simply refers to "an attack on another person's character", apparently irrespective of whether that person is a witness at trial. It must be taken, in our view, as Parliament's intention deliberately to widen the gateway in this fashion. Nonetheless, we would emphasise that the trial judge still has a discretion as to whether the jury should hear about a defendant's bad character when he has merely made imputations about the character of a non-witness. Not only does he have such a general discretion under section 78 of the Police and Criminal Evidence Act 1984, but section 101(3) of the 2003 Act specifically provides that: "the court must not admit evidence under subsection (1)(d) or (g) if on an application by the defendant to exclude it it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

16. How the trial judge exercises that discretion is a matter for him or her, but it seems to this Court that it would be unusual for evidence of a defendant's bad character to be admitted when the only basis for so doing was an attack on the character of a non-witness who is also a non-victim. The fairness of the proceedings would normally be materially damaged by so doing.

17. Having said that, the facts of cases do vary. […]"

86. In this case evidence from Smith and Williams was before the jury and the applicant had accused them of having caused the death of Mr Grisales. This attack on their character was extremely grave, and it was well within the judge's discretion in those circumstances to introduce evidence of the applicant's convictions. That step did not have such an adverse effect on the fairness of the proceedings that in consequence the court ought to have excluded this material; indeed, to the contrary it was entirely appropriate that the jury were put in a position of the being able to use this material when assessing the credibility of the defendant who was accusing others of being in possession of a knife and, in Smith's case, of using it to kill Mr Grisales. As the judge said to the jury:

"The reason why I gave permission to the prosecution to adduce that evidence before you is because of the allegations made by the defendant to the police and subsequently repeated to you in evidence against Tamisha Williams and Denali Smith. He has accused Danele Smith of carrying out the stabbing and he has accused Tamisha Williams of effectively encouraging the stabbing by off her own bat producing a knife and handing it over to Denali Smith for use.

It is, therefore, only right where serious allegations like that are made against others that you should know of the character and background of the individual who makes such allegations but the use that you are entitled to make of your knowledge of these previous matters in which the defendant has been involved is limited. You are entitled to consider the convictions in your evaluation of the defendant's credibility. That is to say it would be open to you to be less inclined to accept his account of what occurred in College Close than you might the account of a person with an unblemished character. What weight, if any, you attach to his previous offending is though, as far as credibility is concerned, entirely a matter for you. You are not entitled in any way whatsoever to regard his convictions as making it in any way more likely that he has committed this stabbing. They have no relevance in that regard at all."

87. This was a model direction that reveals that it was appropriate for the jury to hear of these convictions when assessing the credibility of the individual who had accused two others of responsibility for the murder with which he was charged.

Ground 6: The Summing Up

Background (Ground 6)

88. The verdict is said to be unsafe because of a number of errors in the summing up, some of which were left uncorrected. The central contentions in this regard are as follows.

"Tamisha Williams: the warning

i) The judge erred in directing the jury to approach the evidence of Williams with considerable caution and circumspection, reminding them that her truthfulness had not been tested in front of the jury.

Tamisha Williams: offering the knife to Smith

ii) The judge failed to mention sufficiently early in the summing up that Williams' account was that she had offered the knife to Smith.

Romario Melhado and Shay Williams

iii) As regards the evidence of Romario Melhado and his suggestion that Smith confessed to him, the judge incorrectly directed the jury to be very careful about his evidence and that it was of limited value. Similarly, the judge should not have warned the jury to approach the hearsay evidence of Shay Williams with very considerable caution.

A modified Turnbull direction for the clothing

iv) The judge wrongly directed the jury on the subject of the clothing of Martin Casey and Maria Stokes, and he failed to give a modified Turnbull direction (63 Cr App R 132). It is contended that the judge should have warned the jury of the "special need" for caution as regards the identification procedure on 17 January 2012 during which the applicant's clothing was identified by Martin Casey and Mary Stokes, and that he should have adapted the Turnbull formula to clothing. Furthermore, it was suggested that it was necessary for the judge to direct the jury as to the risk of collusion on the part of these witnesses. We note in this regard, however, that the unchallenged evidence by the prosecution was that there had been no opportunity for collusion on the part Mr Casey and Ms Stokes between their individual identification procedures. Generally, it is argued that the judge inadequately addressed the identification evidence, and the inconsistent details that were provided by various witnesses.

The section 34 direction

v) The judge gave an incorrect direction pursuant to section 34 Criminal Justice and Public Order Act 1994 as regards the applicant's failure to mention when questioned matters that he later relied on in court. It is argued that this was not a case in which these matters "called out" for an explanation. It is contended that this was not an ambush defence and the applicant had provided a detailed account in his prepared statement.

The Lucas direction

vi) A lies direction in accordance with Lucas (73 Cr App R 159) should not have been given as regards the telephone call the applicant said he made to Williams shortly after the incident (her telephone records revealed no such call had been made) and his assertion that he had not been wearing an item of clothing with a hood. It is suggested that even if these matters were lies, they did not have any bearing on his suggested guilt and they did not relate to a material issue. Furthermore, the judge failed to set out the matters for the jury that may be relevant when they are deciding whether he may genuinely and reasonably have relied on legal advice.

Self-defence

vii) The judge undermined the applicant's true defence by summing up the ingredients of self-defence, and that there was no evidence before the jury that raised this issue."

Discussion (Ground 6)

i) Tamisha Williams: the warning

89. Although Tamisha Williams was arrested on suspicion of the murder of Mr Grisales, she was not charged with any offence and she did not testify during the trial. DC Durham gave hearsay evidence that Williams told her that she had been inside her house at the time of the stabbing, and had only gone outside in order to give first aid. However, on being informed as to the contents of the applicant's prepared statement (set out above), she changed her account and described a conker-throwing incident which started an argument. She suggested that Mr Grisales "got mad" and hit the applicant ("Spider") with a skateboard, whereon the applicant hit him. Granville and Mr Grisales exchanged blows and there was then a general fight, which included a third man who, until that point, had been watching on the side lines. She agreed she had said "take the knife, take this", but she declined to give the name of the man at whom this instruction was directed. On her account this was not the applicant or Granville, and viewed realistically it must, therefore, have been the third man (Smith). She then walked away in the direction of her house, but she heard screaming and she turned round and saw the now injured Mr Grisales crossing the road.
90. The judge reminded the jury of the evolution of her account, and he then went on to direct them as follows:

"You will recall that these exchanges between her and the police all occurred when she was being interviewed as a witness. No solicitor had been present and she did not have access to legal advice and had not been cautioned. She was then arrested. She was now interviewed under caution in the presence of her solicitor and went no comment.

Importantly, ladies and gentlemen, you have not heard from Tamisha herself; only what she said to the police. Both sides agree that she did say those things to the police because those are a matter of record but, of course, the truthfulness of her account has not been tested in your presence and hearing because she has not given evidence before you. It therefore follows that you need to approach what she said to the police with a degree of caution and circumspection."

91. In our judgment, this warning to the jury was entirely appropriate. The witness had given, over a short period of time, two wholly different accounts as regards what she had seen. She had not made a witness statement. On any view, the jury needed to be warned that neither version had been verified on oath or tested by cross-examination. The need for caution and circumspection in those circumstances were undoubted. The judge did not undermine or shift the burden and the standard of proof in giving the jury this indication of the need to take care when they were considering these two untested and contradictory accounts, and when they were assessing whether the witness may have been telling the truth. It is untenable to suggest that the judge is obliged to warn the jury of the dangers that can accompany hearsay evidence that is relied on by the prosecution but is obliged to remain entirely silent on this issue when the hearsay evidence is said to support the defence case.
92. The hearsay regime established by CJA applies equally to both the prosecution and the defence, although when the court is applying its various provisions the identity of the party may well be relevant. For instance, it does not necessarily follow that the interests of justice will point in the same direction upon an application by the Crown as they might upon an application made by a defendant (R v Y [2008] EWCA Crim 10; [2008] 1 Cr App R 34, at paragraph 59). But the legislation does not structurally favour the defence over the prosecution, and this reflects the longstanding position at common law (see R v Turner and others (1975) 61 Cr App R 67, at page 88). Critically, although the CJA provides for the wider admissibility of hearsay evidence than had been the position hitherto, it is not to be considered the equivalent of first-hand or direct evidence. As this court pointed out in R v Riat [2012] EWCA Crim 1509; [2013] 1 Cr App R 2:

"3. […] The common law prohibition on the admission of hearsay evidence remains the default rule but the categories of hearsay which may be admitted are widened. It is essential to remember that although hearsay is thereby made admissible in more circumstances than it previously was, this does not make it the same as first-hand evidence. It is not. It is necessarily second-hand and for that reason very often second-best. Because it is second-hand, it is that much more difficult to test and assess. The jury frequently never sees the person whose word is being relied upon. […]"

93. Counsel failed to cite one of the few relevant authorities from this court on this issue: R v Abiodun (2003) EWCA Crim 2167, referred to in one of the leading text books (Blackstones at F16:47). That case concerned the admissibility of evidence under section 23 Criminal Justice Act 1988 as regards two defence witnesses who were abroad and the judge directed the jury as follows (as set out at paragraph 29 of the judgment):

"Then the statements of Mr Adedeji and Mr Akerele were read. I should explain, Members of the Jury, that there is a statutory procedure under which where witnesses are abroad and cannot come to this country, their statements can be read, so their evidence goes in in statement form. Obviously from your point of view, when it comes to assessing what weight to give to their evidence, the disadvantage is, of course, that you have not had the benefit of seeing them give evidence and seeing them cross-examined so you don't know, at the end of the day, how well or badly they would have fared, particularly in cross-examination, to what extent they would have impressed you, if at all. That is, of course, denied to you, but nevertheless, their statements are in evidence before you perfectly properly and have been read to you."

94. Of that direction, the court observed as follows:

"66. The disadvantage, it is said, of admitting the statements under S. 23, was that the judge was bound by R v McCoy (John) 10 December 1999, [2000] 6 Archbold News 2 to direct the jury in the terms that he did, and that the jury would inevitably place less, perhaps much less, weight on the evidence of Mr Adedeji and Mr Akerele. Further the absence of the witnesses meant the jury could not assess their evidence properly.

67. Even if McCoy obliged the judge to give such a direction (we note that the facts of McCoy are very different from the instant case) then in our judgment the direction the judge in fact gave was mild. In any event it did no more than remind the jury of what in any event would have been obvious to them i.e. that the witnesses had not been cross-examined and that they were under some disadvantage in assessing how well or badly they would have fared in cross-examination. Furthermore, from the appellant's standpoint the absence of the two witnesses meant that the risk of their evidence being damaged, had they been cross-examined, was eliminated."

95. Furthermore, it is of note that in R v Marsh (2008) EWCA Crim 1816, a decision by the trial judge was upheld on appeal to refuse to admit a hearsay account of what a prisoner – a man called Rossier – had said to another inmate (Bennett), about the appellant Marsh's lack of involvement in the offence of conspiring to supply cocaine. Hughes LJ indicated that the second of the court's two reasons for concluding that the exclusion of this evidence did not render the verdict unsafe was "[…]the very clear warning or direction which the judge would admittedly have had to give about the extreme caution needed before relying on second-hand evidence of this kind of what Rossier had said" [26]. In other words, the judge would have needed to give the jury strong directions about hearsay evidence relied on by the defence.
96. We repeat that the judge, when giving directions to the jury on hearsay evidence relied on by the accused, must be scrupulous to ensure that he does not shift the burden of proof away from the prosecution. But it was unobjectionable in this case for the court to identify the weaknesses in the evidence and to highlight the need for caution as regards material that had not been tested, particularly when the witness had given two completely contradictory accounts that have not been investigated in cross-examination. The judge's remarks were balanced and proportionate and these directions do not provide an arguable ground of appeal.

ii) Tamisha Williams: offering the knife to Smith

97. It is suggested that the judge failed to mention sufficiently early in the summing up that Williams in her account was, as a matter of logic, indicating that she had offered the knife to Smith. When first dealing with her evidence on the first day, the judge reminded the jury:

"The police then read to her that part of Ochaine's prepared statement in which he referred to Tamisha having said, "Take the knife". She was asked if this was correct. She paused and nodded. She admitted saying "Take the knife, take this" to a male although would not name him."

98. On the second day of the summing up (after a day's break), the judge said to the jury:

"[…] a very brief further observation about Tamisha Williams. I wanted to remind you that, in accepting as she ultimately did the truthfulness of Ochaine's account when it was put to her by the police, although she did not name the third man to whom she agreed that she had said "Take the knife", that person must on her account have been Denali Smith."

99. By the time the jury retired, the evidence on this issue had been set out in full. There is no substance to the complaint that the verdict is unsafe because the reference to Smith was delayed until the second day of the summing up. It was arguably to the applicant's advantage that the link between the knife and Smith was rehearsed shortly before the jury retired.

iii) Romario Melhado and Shay Williams

100. Mr Bromley-Martin asserts that the judge incorrectly directed the jury to approach the evidence of Romario Melhado and his suggestion that Smith had "confessed" with very considerable caution, given it was relied on by the defence. Instead, he submits that the judge ought to have been directed the jury that if they accepted, on the basis of the hearsay account, that the statement may have been made, then they had no choice but to conclude that may have been a genuine account of what occurred. No other direction, in the applicant's submission, should have been given. Therefore, Mr Bromley-Martin contends that if it was possible that Smith uttered the words of the "confession", the applicant was entitled to be acquitted.
101. The problems with Melhado's account were considerable. He gave evidence of having heard from Shay Williams on 1 September 2011 that Smith had got into an argument and stabbed someone. It was unclear whether Shay Williams was speaking about something he had seen or whether this was an additional piece of hearsay (resulting in the judge observing that this evidence from Shay Williams needed to be treated with very considerable caution). Melhado also suggested that he had heard that the applicant was "snitching" on him and that Smith had indicated that he had heard Tamisha Williams say "here's the borer". However, he also told the police when interviewed by the police at length on 13 October 2011 that he did not know and had not heard anything about the murder. The judge concluded his rehearsal of Melhado's evidence as follows:

"Two things are clear from his evidence: firstly, what he said to you is entirely at odds with what he said to the police and, secondly, in any event he is telling you not what he saw but rather what he claims others have told him, others from whom of course you have not heard. You may conclude, although it is a matter for you, that his evidence is of limited value. "

102. In light of the above, it is clear that the parts of Melhado's account the defence sought to rely on were, certainly in the main, hearsay evidence and possibly multiple hearsay. Melhado had given starkly contradictory accounts as to his state of knowledge – on any view he had lied at one stage on this issue – thereby calling into question the reliability of his evidence. Given the extent to which he was (if truthful) dependent on what others had told him and bearing in mind the inconsistencies in his account, the jury undoubtedly needed to approach his evidence (along with the suggested information that had come from Shay Williams) with significant care. In our judgment the applicant's submission that the only direction that ought to be given when the defence rely on a suggested hearsay confession to crime, regardless of its origins or its circumstances, is to invite the jury to consider whether the confession had been, or may have been, made is wholly untenable. We note this argument is based solely on an illustrative direction set out the 2010 Crown Court Bench Book at page 220. Instead, as set out above [90] so long as the judge does not undermine the correct approach to the burden and standard of proof, he is fully entitled to draw the attention of the jury to the potential strengths and weaknesses of hearsay evidence in order to ensure that the possible limitations of evidence of this kind are understood by them (e.g. the lack of any cross-examination), whomsoever introduces or relies on it. There is no rule of law – nor should there be – that the judge must simply direct the jury to consider whether the "confession" may have been made and to ignore all other matters relating to that piece of evidence. In this instance, the comments of the judge did not in any sense undermine his earlier directions as to the burden and standard of proof, and in those circumstances the comments he made about his evidence were justified and entirely appropriate.

iv) A modified Turnbull direction for the clothing

103. The applicant argues that the judge wrongly directed the jury on the subject of the clothing of Martin Casey and Maria Stokes in the sense that he failed to give a modified Turnbull direction. The judge's direction was as follows:

"Identification evidence. Martin Casey and Mary Stokes are clearly very important witnesses and I shall be reviewing their evidence with you shortly. Neither of them picked out the defendant at the VIPER identification procedure but on 17 January both did so from the clothing images of three individuals, each of whom, as you know were wearing different clothing.

You need to approach their evidence with great caution. I will, of course, remind you of the description which they gave at different times of the person who they say was in possession of a knife and you will have to reach a conclusion as to the extent to which, if at all, the description that they variously gave undermines the prosecution case that it was the defendant who committed this offence. […]"

104. It is contended that the judge should have warned the jury of a "special need" for caution as regards the identification procedure on 17 January 2012 during which the applicant's clothing was identified by Martin Casey and Mary Stokes, and that he should have adapted the Turnbull formula for these purposes. There is no legal basis for the suggestion that the judge needed to give a modified Turnbull direction in the manner suggested, and the warning by the judge set out above was entirely appropriate and sufficient in these circumstances. It is of note in this regard that no Turnbull warning is required in respect of a photofit: it is sufficient to direct the jury that it is simply an attempt to reconstruct the features of a person to the best of the witness's ability (R. v. Constantinou, 91 Cr.App.R. 74). That approach applies equally in the present circumstances. The arguments in relation to collusion fall away given the undisputed evidence that no such opportunity existed. Finally, the judge set out the various descriptions of the witnesses in significant detail. The applicant's submissions under this heading are wholly lacking in merit.

v) The section 34 direction

105. As to the ground of appeal that the judge gave an incorrect direction pursuant to section 34 Criminal Justice and Public Order Act 1994 concerning the applicant's failure to mention when questioned matters that he later relied on in court, this is equally lacking in substance. The judge carefully set out for the jury the four matters which formed part of the applicant's defence that had not been included in the prepared statement:

i) That 20 minutes or so after the incident Denali Smith, in the presence of Curtiss Granville, confessed to having carried out the stabbing;

ii) That shortly after leaving the scene he discarded a number of items of his clothing in a bin near to a friend's house which has had the effect of preventing the recovery of those items and also that he put the jacket under a baby bath in the garden of his home;

iii) That he left College Cross within moments of the stabbing and before the other two which, if right, would mean that he could not have been the person seen by Mary Stokes;

iv) Lastly, that as he ran away he turned round and saw Curtis Granville in possession of the knife, waving it about, which, if correct, means that two people were in possession of the knife during this incident so that the person Mary Stokes saw with the knife is unlikely to have been the person who carried out the stabbing.

106. Contrary to Mr Bromley- Martin's submissions, the prosecution did not accept that any of these suggested facts were true – they were all clearly in dispute. As to i), in the prepared statement and in his interview, the applicant made no mention of the confession by Smith shortly after Mr Grisales had been stabbed. As to ii), as part of his defence at trial the applicant needed to explain why the main items of clothing he had been wearing that night were not discovered by the police when they searched his home. The applicant gave an elaborate explanation in this regard during the trial, none of which was referred to in the statement and during the no comment interview. As to iii), the prepared statement describes the three companions running away in the same direction at the same time, and on iv) there is no mention of Curtis Granville waving the knife. All of these four matters, relied on by the applicant at trial in support of his defence, which were disputed and which had not been set out in the prepared statement or during his interview, provided a proper basis for a section 34 direction and the applicant's submissions to the contrary are without any sustainable foundation.
107. Furthermore, there is no basis for suggesting that the judge should have directed the jury as to the possibility that the applicant may have not mentioned these matters as a result of legal advice is entirely without foundation. He did not give evidence to that effect.

vi) The Lucas direction

108. Contrary to the applicant's submissions, a lies direction in accordance with R v Lucas (73 Cr App R 159) was entirely appropriate in this case as regards the telephone call the applicant said he made to Williams shortly after the incident (her telephone records revealed no such call had been made) and his assertion that he had not been wearing a hooded item of clothing at the time of the stabbing (this evidence was demonstrated to be untrue). There was a clear basis on which the jury could conclude that these were lies on separate or distinct issues that supported the prosecution's case against the applicant on the charge of murder. The Crown suggested that the applicant had lied as regards the telephone call because he needed to explain why he had evaded the police and that he lied about the clothing in an attempt to undermine the suggestion that he had stabbed Mr Grisales. This direction ensured that these undoubted lies were not used improperly against the applicant by the jury, and the direction operated to his advantage.

vii) Self-defence

109. We unhesitatingly reject the applicant's complaint that the judge undermined the applicant's true defence by summing up the ingredients of self-defence, along with the linked submission that there was no evidence before the jury that raised this issue. On the facts of this case the judge had to guard against the possibility that the jury may reject the applicant's defence that he had not wielded the knife. In that eventuality, it was necessary – in his interests – for the jury to consider whether he may have acted in self-defence, given there was clear evidence that he had been hit at least once by Mr Grisales with the skateboard. This attack on him by the victim raised the issue of self defence in the clearest possible way, and the judge would have failed in his obligations if he had failed to direct the jury as to the elements of this possible defence.

Other suggested errors of fact and law in the summing up

110. At paragraph 43 (xiii) of the Final Advice on Appeal 27 August 2012, certain supposed "errors of fact" are referred to. These were, in the main, slips by the judge which were brought to his attention at the end of the first day of the summing up. Those of any merit were dealt with at the beginning of the second day of the summing up, prior to the jury going into retirement. Those which the judge did not address or correct were either unimportant or without merit. It is unnecessary to deal with these issues in the course of this judgment: none of them, viewed separately or collectively, undermines the safety of the conviction.

Conclusion

111. Notwithstanding the myriad arguments advanced in support of this application, none of them arguably support the suggestion that the verdict is unsafe. The application is accordingly refused.

Post Scriptum

112. The exceptionally long delay between hearing the evidence of witness B and the final hearing of the application (12 months) was solely the result of repeated requests by the applicant to be afforded additional time to locate the original recording sent to witness B by Smith and to instruct one or more relevant experts. It is unnecessary to rehearse the details of the repeated applications that were made to this court to delay the proceedings for these investigations to take place, but the requests to postpone the case continued right up until the final hearing of the application on 15 July 2014. Given the importance of this issue to the applicant – as a teenager convicted of murder – the court, with considerable reluctance, was prepared to allow the applicant's solicitors to complete what proved to be extensive researches. In the result no material of relevance was produced and the applicant accepted that the final submissions should be presented on 15 July 2014.

Note 1   Tamisha Williams indicated that Mr Grisales hit Granville, but she did not state this was done when he was holding the skateboard; instead she simply said that Mr Grisales hit him back.     [Back]