ON APPEAL FROM SNARESBROOK CROWN COURT
HHJ Kamill
Strand, London, WC2A 2LL |
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B e f o r e :
SIR NICHOLAS BLAKE
and
HIS HONOUR JUDGE LODDER QC
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(1) Ahmed Qasem (2) Eric Mathew Oppong |
Appellants |
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- and - |
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Regina |
Respondent |
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Mr Fessal appeared on behalf of the Second Appellant
Ms C Farrelly appeared on behalf of the Crown
Hearing date : 29 November 2019
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Crown Copyright ©
Lord Justice Hamblen :
Introduction
The outline facts
(i) Evidence from the complainant in relation to the allegations;(ii) Expert evidence from Mr Queenan (forensic scientist) in relation to the DNA analysis;
(iii) Expert evidence from Mr Tyler (forensic scientist) in relation to the toxicology evidence;
(iv) Evidence from Dr Shardlow in relation to the complainant's injuries;
(v) Evidence from the complainant's boyfriend RO and PC Wilson in relation to her first complaint;
(vi) Evidence from the complainant's friends CS and EL in relation to the complainant's demeanour at the Curtain Club;
(vii) CCTV evidence of the complainant inside and outside the Curtain Club and some of her movements during the early hours of 31st March 2018.
(i) Whether they were sure that Oppong had had vaginal sexual intercourse with the complainant; (count 4) – on which he was acquitted.
(ii) Consent - for both applicants on all counts.
The evidence at trial
The grounds of appeal
(i) The Judge erred in not disclosing to counsel questions or comments from the jury that related to the trial; and/or
(ii) The Judge wrongly excluded evidence under s.41 of the 1999 Act.
Ground 1
"In R v Andriamampandry (2003) 147 SJ 871, CA, it was said that where a judge receives a note from the jury, it may be dealt with without reference to counsel if it concerns an administrative matter unconnected with the trial; but in almost every other case, the judge should state in open court the nature and content of the communication and, if he considers it helpful to do so, seek the assistance of counsel. If counsel ask to see the note, normal practice would be to permit this. In that case, during the course of a trial, the jury had asked 17 questions in a series of notes, all of which had been handed to the judge in open court in full view of all parties. It was held that the failure of the judge to read out the whole of two of the notes constituted an irregularity; if the judge did not think it appropriate to read out the whole note, he should have showed it to counsel, so that counsel could have decided whether to make submissions in relation to that which had not been read out or to pursue it in the evidence. However, in the context of the case as a whole, the omissions were trivial and, in relation to a third note, which consisted of comment on the evidence, there had been no irregularity in the judge not reading it out, but instead referring it back to the jury with a request for clarification (which was never forthcoming). If counsel asks to see such a note, it should normally be shown. It was held that the failure to read out in full three of the 17 notes had not, therefore, deprived the defendant of a significant line of evidence or argument and had had no effect on the safety of the verdict."
"22. …the principle arising for consideration in this appeal was analysed and decided in Gorman [1987] 85 CrApp R 121 . Lord Lane CJ explained that, if the communication from the jury raised administrative issues, "unconnected with the trial", the judge could deal with them without referring to counsel or, indeed, asking the jury to return to court.
In almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful to do so, seek the assistance of counsel."
Lord Lane concluded his judgment by examining the reasons underpinning the principle.
"… The object of these procedures, which should never be lost sight of, is this: first of all, to ensure that there is no suspicion of any private or secret communication between the court and the jury, and secondly, to enable the judge to give proper and accurate assistance to the jury on any matter of law or fact which is troubling them. If those principles are borne in mind, the judge will, one imagines, be able to avoid the danger of committing any material irregularity.
23.. The principles, therefore, are clear. In the present case, the fact of each of these notes, including the three particular notes under consideration, and their receipt by the judge, took place in open court, in public view. They were not and were not treated as private communications between the judge and the jury. In most cases, the terms of the note were read out in open court, and the appropriate question duly asked by the judge. In those cases, in the absence of any express request, there was no requirement for the notes to be physically handed to counsel, although if counsel had asked to see them, it would have been normal practice to allow them to do so.
24. Given these principles, unless the note was of such a character as to come within the exceptional range of which a specific example was given in Gorman itself, an irregularity occurred when a note was received from the jury which was neither read out in open court, nor physically handed to counsel. Although Gorman was concerned with a note received after the retirement of the jury, the objective underpinning the principle applies to notes received before, as well as after retirement."
(i) Some jury notes were shown to counsel, but a number were not;(ii) Some jury notes were read out, but a number were not;
(iii) Some jury notes were dealt with by the Judge without being shown to counsel or read out;
(iv) Counsel were not made aware of the precise content of a number of the jury notes;
(v) The way in which the totality of the jury notes was dealt with by the Judge was inconsistent and, in relation to jury comments, wrong.
(i) Note 37 relating to the "automatic action" of a drunken person. An important issue at trial was how incapacitated by drink the complainant was. We accept that had this been brought to Defence counsel's attention it would have been explored in greater detail with the toxicology witness, Mr Tyler.(ii) Notes 46 and 47 relating to missing CCTV footage at the Community Centre car park. The fact that the police had failed to obtain this before it was deleted was an important element of the Defence case, in particular in circumstances where from the outset the appellants were urging that such footage be obtained because they claimed it would help to exonerate them. We accept that, if these notes had been disclosed, the relevance and significance of that cross examination would have been made clearer and a different approach would be likely to have been taken in relation to that issue. In the event, the Judge, who alone had knowledge of the notes, dealt with this issue fairly dismissively in her summing up, stating that:
"Now as to the defendants, can I say that I am not going to go through all the other aspects, like the police gathering evidence and all that sort of thing? You heard it and it doesn't necessarily impact upon the issues that you have to decide and, therefore I'm not going to repeat it now."(iii) Note 55 which related to AS's movements with the man named as Benson. An important part of the Defence case was that AS, having left the car, remained in the company of Benson (who, on the defence case, had had sexual relations with her in the car) for at least 20 to 30 minutes, contradicting her evidence that she left the car and was alone at the bus stop. We accept that had Defence counsel been aware of this question they would have sought to clarify the timings to show how they were consistent with the later CCTV sighting of AS with Benson walking back into the estate at 05.13 and to clear up the apparent misunderstanding of the evidence suggested by the note.
(iv) Notes 42, 56, 57, 59, 62, 64, 65 relating to Benson. We accept that, had Defence counsel been fully appraised of the sheer number and nature of the jury notes relating to this issue, they are likely to have addressed matters differently. Although it was for the defence to call evidence to identify the existence of Benson, Ms Knights may well have re-visited her application for the jury to be discharged and for such information as was obtained about him during the trial relating to the identification of Benson to be further investigated.
Conclusion