England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		28th February 2014

1. LORD JUSTICE ELIAS: On 18th January in the Crown Court at Wood Green before His Honour Judge Carr, the appellant was convicted of section 18 wounding with intent and was sentenced on 30th January by the same judge to 10 years' detention in a young offender institution. He now appeals against conviction and sentence by leave of the single judge.
2. The facts were these. On the evening on 18th August 2012 the complainant, Omar Kelly, went to his friend, Michael Coker's house for a barbecue. After a few hours they moved onto a house party in Tottenham and at approximately 4.30 am they decided to leave. As they walked outside into a communal area the complainant had what he described as a light-hearted exchange with a young women. She said she was the niece of the woman throwing the party. He then heard a male, who was sitting on a wall nearby saying "lough it" twice, a colloquial term meaning "stop talking to her; or "forget the girl". The complainant turned to leave but as he did so he heard the sound of liquid being poured onto floor and the thud of someone jumping off the wall. The bottle was then smashed over his head following which he was stabbed to his left side with the bottle.
3. He said he did not see the bottle but he did see the attacker, who was the man on the wall. He ran to the road where he stopped a passing ambulance. He was taken to hospital and underwent emergency surgery to his bowel. He remained in hospital for 9 days and had to use a colostomy bag for many months. He underwent further surgery and was left with a 12 inch scar to his lift side.
4. Police recovered a broken beer bottle from the scene. The appellant's DNA was found on the bottle, following which he was arrested and interviewed three times. He denied any involvement in the offence and then refused to answer any further questions.
5. On 29th August 2012 the appellant took part in an identification procedure. The complainant identified the appellant as the complainant's attacker. So in a separate identification parade did Michael Coker, his friend. Coker had also given evidence that he had seen the attack; indeed he had been knocked unconscious by somebody who was with the assailant at the time. It is right to say that there were certain weaknesses in the identification which were highlighted by the judge in the summing-up, in accordance with the Turnbull direction. It was not entirely light, it was dawn at the time; there were various descriptions given at different times by both these witnesses which did not entirely match the description of the defendant; and the glances were relatively fleeting.
6. The prosecution case was that the complainant and Michael Coker had both correctly identified the attacker. They prayed in aid the DNA found on the broken bottle, the appellant's silence in interview, and that there were certain previous convictions which they alleged showed a propensity for committing acts of violence. The defence case was mistaken identity. The complainant and Michael Coker had wrongly identified the defendant when it must have been someone else they had seen at the party who was the claimant's attacker. The defendant did, however, accept that he was at the party.
7. There was an application to admit as bad character evidence the three previous convictions for robbery which we have mentioned. These were said by the prosecution to be relevant to an important issue between the defence and the prosecution, namely whether the appellant had a propensity for violence and, if so, whether the conviction should be adduced in evidence because they may be material to the question of coincidence.
8. The appeal against conviction relates to the admissibility of that evidence. The three robberies were all street robberies committed in 2008, 2009 and 2010 respectively. One of these involved actual violent in the form of a punch or punches though we are told that it is not entirely clear whether the punch emanated from the appellant himself or perhaps one of the other persons with whom he committed the offence. The other two involved jostling and harassing the victim, although in one there was a threat that a knife would be used although no knife was actually produced.
9. The judge concluded that the evidence should be admitted. He said this:

"It seems to me that although the convictions are for a different offence containing violence within but not in the circumstances of each of these robberies - violence with a weapon and of course some of them, or at least one or two of them, were committed when Mr Ngando was still a very young man, the nature of the defence and the association of coincidence both with the bottle and with the identification parades are such it seems to me right that it is left to the jury properly directed, I hope, to conclude whether they find it of assistance or not and it will not be appropriate for me to rule it out at this stage."

10. We understand the judge to be saying the conviction was potentially relevant because a jury might infer that someone with a record of violent offending, albeit of the kind present here, would be less likely to be the subject of a mistaken identity than someone of good character. It was, to use the language of Turnbull "evidence which was capable of supporting the identification" - of course, along with the more powerful DNA evidence.
11. The judge had emphasised the need for careful and clear directions so as to ensure the evidence was properly assessed and not given undue prominence. He gave such directions. Whilst not formally directing the jury that they could not use these convictions as evidence of propensity to use violence in the way that it was used in this case, he did say that the jury might think that the violence in the earlier offences was "a long way from the particular offences you are dealing with."

He then continued as follows:

"You may think the only fair thing to do if you find a propensity however, for violence, is to put it into the equation as an issue of coincidence. Just as you are entitled to ask yourself: 'What from the chances that two people pick out a man whose DNA happens to be on the bottle?' you are entitled to ask yourself what is the chances of two men picking a stranger who happens to have the convictions this man does. You may think coincidence would be the only fair way, if at all that is used."

12. The appellant submits the evidence ought not to have been admitted for any reason. The offences were not of a sufficiently similar character to the attack inflicted on this victim and ought not to be considered material even in the context of rebutting his defence that he had been wrongly and mistakenly identified. The prejudicial effect of allowing the former convictions to go to the jury outweighed their probative value. The identification evidence was weak, and as Rose LJ pointed out in the case of R v Hanson [2005] Cr App R 21, it is not legitimate to admit bad character evidence in order to bolster a weak case. Counsel submits there very likely would be a number of persons with similar criminal records at the party; and furthermore, for reasons we have given, the identification of the appellant was not wholly reliable.
13. We reject this submission. In our judgment, the judge was entitled to allow the evidence to go before the jury. We agree that it would not have been appropriate to do so purely for the purposes of demonstrating a propensity to commit violence of the kind used in this attack. The earlier offences would not we think properly sustain that inference.
14. But in effect the judge indicated that to the jury, although it would be we think better if he had specifically directed them that the conviction should not be used to support an inference that the defendant would commit violence of the kind used in this offence. But we do not accept the premise that the identification was weak, nor that the case overall was weak. As to the former it, in our view highly pertinent there was identification by two witnesses and that the person identified was, on his own account, at the place where the attack occurred. As to the case being weak, quite apart from identification evidence there is the DNA of the applicant on the bottle used in the attack.
15. This is not, in our view, a case of bad character being admitted to bolster a weak defence. The judge was entitled to say the evidence was potentially of some relevance albeit perhaps limited to rebut the defendant's claimant that he unfortunately and just by chance had been wrongly picked out by two people in the identification parade. The judge was entitled to admit it on that basis and to direct the jury to use it accordingly if they thought fit. He properly emphasised to them they could not convict solely or mainly on that evidence.
16. We also bear in mind what Rose LJ said in Hanson, at paragraph 15, that this court will interfere in a case of this kind only if the judge has misdirected himself or reached the judgment which is plainly wrong. In our judgment, that test is not satisfied here.
17. We should add that in any event we are wholly satisfied that even if the evidence had been wrongly admitted, there is no real doubt about the safety of the conviction. In that context we bear in mind the following factors: the appellant's admitted presence; the DNA found on the neck of the bottle; the admitted fact that he had been drinking from a bottle of that kind on the evening in question; the fact that the only broken glass in the area was from that bottle; and the identification by both the victim and by Michael Coker. As we have said, this independent identification by two parties is potentially very strong. Also the appellant gave a "no comment" interview and the jury were directed as to the illegitimacy of drawing inferences from that fact provided certain requirements were satisfied.
18. In our judgment, therefore, this bad character evidence was properly admitted but even if it was not, the verdict is safe. The appeal against conviction therefore fails.
19. We turn to sentence. The judge considered this was a level 1 attack with a starting point of 12 years. He reduced it to 10, which gave significant reduction principally for the appellant's age – he was 19 at the time of the offence - and for other matters. In our judgment, this was a perfectly proper sentence. The victim had suffered serious life threatening injuries as well as psychological damage, as he outline in his victim impact statement.
20. The appellant submitted that it was not a case of higher culpability. The basis of the argument is that the attack was not planned or premeditated, it was an impulsive act and although a dangerous weapon was used, the bottle was not an offensive weapon per se. It was suggested that this rendered the culpability at a lower level and should have caused the judge to sentence by treating the offence as a less serious one, with a sentencing range of 4 to 7 years.
21. In our judgment, neither of the factors relied upon by the appellant would justify concluding this was not a case of higher culpability. A broken bottle is a very dangerous weapon. Liquid was poured from the bottle before the appellant leapt from the wall and in order to attack the victim. It was wholly unprovoked. In our view, the judge applied the guidelines perfectly appropriately. Accordingly the sentence of 10 years could not conceivably be said to be out of line. Credit was given for the age of this appellant. We therefore reject the appeal against sentence also.