Wooster, R v [2003] EWCA Crim 748

Case No 200005154/W3[2003] EWCA Crim 748
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 26th February 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
MR JUSTICE HUNT
MR JUSTICE HEDLEY
Between
R E G I N ACrown-v-
Between
PERRY WOOSTER
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR K MACDONALD QC appeared for APPELLANTMR LORD MORRIS QC & MR M HALSEY appeared for CROWN
J U D G M E N T

LORD JUSTICE LATHAM:

[1]The tragedy which underlies this case occurred on 1st June 1990 when the appellant went, with friends, in cars to a local area by a river and took with him a loaded pistol. People from another group were also present in their cars. Shots were fired. As a result the cars in the other group from the appellant's were driven away. Unhappily, a third shot was fired by the appellant which passed through the back of one of the departing cars and killed an 18 year old girl sitting in the back seat. The issue for the jury was the appellant's intention at the time that he fired that shot.[2]On 10th June 1991 he was convicted, in the Crown Court at Chelmsford, of murder, and was sentenced to detention for life. He appealed against his conviction essentially on two grounds. Firstly, that there had been a misdirection of the jury as to intention and the difference between the consequences in relation to a conviction for murder or manslaughter, which he, the appellant, was prepared to accept and had indeed offered as a plea at an early stage. Secondly, counsel on his behalf urged the court that there was in fact no sufficient evidence on which a jury could have concluded that what occurred that night amounted to murder as opposed to manslaughter. The court dismissed that appeal.[3]The appellant's family has, understandably, in the light of the tragic circumstances of this matter, persisted in seeking what they consider to be a proper verdict, which is one of manslaughter. Ultimately, they persuaded the Criminal Cases Review Commission to consider the matter; and in a Reference dated 30th August 2000, the Commission referred the matter to this Court, where the appeal has been argued - if we may say so - with great ability by Mr Macdonald QC on two grounds. Firstly, it is submitted that there is fresh evidence available to this Court which throws doubt about the safety of that conviction. The second ground is that, on revisiting the summing up, there are deficiencies in the summing up which also undermine the safety of the conviction.[4]In order to understand both grounds, it is necessary to say a little more about the facts underlying the charge which this appellant faced. The appellant had illegally obtained the revolver and bullets in question in May. He had briefly practised shooting the gun, using the bullets that he first obtained, and then obtained six more bullets. On the night of the tragedy he had been to a pub with some friends and then went in the car of one of them, a Volkswagen Golf, to a secluded area near some flooded gravel pits. It was clear that they had gone there with the express intention of, as it was put, "mucking about" with the gun. When they got to the area in the gravel pits where they wished to use the gun, unhappily there were already two cars parked there, one of the cars being the car in which the victim was a passenger. The two cars were parked together; it was clearly a group of friends; and they were chatting between the cars and listening to music. For whatever reason, after the Golf had been parked, the appellant and the one of his friends went towards the parked cars and fired, it would appear, two shots over the roofs of the cars. There was no suggestion that those shots had been intended either to cause injury or to cause any physical damage to the cars themselves. Not surprisingly, those who were in those cars were somewhat frightened. The driver of the car in which the victim was sitting started the engine of his car and drove it in fact towards the appellant and his friend, with a view to getting away. The appellant and his friend jumped out of the way of the car as it passed, went to the Golf, and the evidence of the driver of the Golf car, Mr Canty, was that the appellant got into the car and then fired through the passenger window, at or at least towards the car, which by then was travelling away from them. The bullet fired from the gun at that point unhappily went through the rear of the vehicle, through the back of the rear seat and into the victim, killing her.[5]The aftermath of the events was as follows. The appellant and his friends remained in the area. They, it would appear, continued to play with the gun, and indeed the indications are that they could only have done so if they were unaware of what had in fact happened. At some stage, however, the appellant became concerned about his possession of the gun and threw it and the remaining ammunition into the lake from where it was recovered later by the police.[6]In the early hours of the next morning, two police officers came on the scene and found the appellant and the friend still there. They were searched, but no gun was found as, of course, it had been disposed of.[7]However, the appellant was arrested. He was interviewed on six occasions. In the first interview, he denied any involvement in what had occurred in the gravel pits. In the second interview, he asked for a solicitor before he answered any further questions. Thereafter, in the interviews which followed, he admitted that he had been there with the gun; he admitted firing the gun but denied emphatically that he had, at any stage, intended to cause any injury to any of those who had been in the car. In the first of the interviews in which he gave an account of what had happened he said that a car had driven towards them, "like trying to run us over, so we got into the car and we left". He said that he shot at the car as it went past, but he was not aiming at the car, he was aiming to miss. He repeatedly said that he was not aiming at them, that is the car or its occupants. He admitted that he was shooting towards the car but said that he was hoping to miss it. He had no intention of hitting the car. He did not know why he had shot the gun. He was just messing around. That was his first account. Then later, he said, he shot towards them to scare them. He did not mean, he said, to hit the car. Then in an important passage he described to the police officer how he was leaning out of the car, that is out through the window of the car, and shot at the ground, as he described it. At that point, he indicated by his actions to the police officer that he was firing down, so the police officer said:
"If you do that you're firing down?"
His answer was "Yeah, I was firing down".[8]The subsequent interviews essentially repeated the assertion that he was making, that he had not had any intention of firing at the car or the people inside. He was aiming to miss.[9]At the trial, the prosecution called a firearms expert called Mr Warlow. His evidence was obviously of substantial importance. He described the damage to the car from the bullet as indicating that the bullet had entered from the rear and then gone through the rear seat in a straight line, without deviation either to the side or upwards or downwards. The height of the bullet holes, both to the back of the car and the back of the seat, were essentially but not identically the same height from the ground, and the angle at which the bullet entered the car indicated that it had hit the car at right angles, in other words 90 degrees to the rear of the car and therefore would have been fired from immediately behind, and that trajectory was such that it appeared to be going straight, parallel to the ground, at the time that it struck the victim.[10]The nature of his evidence can be encapsulated in one particular passage to which we have been referred by Mr Macdonald. It was a passage in re-examination, at page 181. The answer he gave was this:
"...the final arbiter must be the actual alignments of the gun barrel at the moment it is discharged, and in this case the gun barrel was pointed directly at the rear of the vehicle and a shot struck it directly. Now, whether the person in this particular instance meant to hit that exact part of the rear of the vehicle or someone else, I do not know."
[11]Essentially, therefore, the evidence of the prosecution expert was to the effect that the shot had been a straight - if that is the right description of it - shot, with the barrel of the pistol so aligned as to indicate that it was pointing directly at the rear of the car at the time that the trigger was pulled.[12]Counsel acting for the appellant at that time had available to them a report from their own expert, a Mr Mead. He had carried out a number of investigations into the gun itself and had provided his view as to what had happened. The report which was critical for the purpose of the decision which was ultimately taken which was that Mr Mead should not be called to give evidence, was a part of the report, which was headed "not for disclosure", in which Mr Mead said this:
"Certainly it was pointing at the rear off-side in a line towards the driver, but errors in firing pistols so overwhelm their possible accuracy that suggestion of a determined and successful shot at the driver must be fought."
[13]In the light of that opinion, counsel considered that it would be too dangerous to call Mr Mead because of the fact that he would confirm the evidence of Mr Warlow as to the direction in which the gun was pointing at the relevant time. They decided to concentrate on the point being made by Mr Mead that the pistols are not accurate weapons, they were certainly not accurate weapons in the hands of an inexperienced shooter; and the circumstances in which the pistol was used, namely at night, would render it even less likely to be an accurate weapon. It was that line of defence which counsel, on behalf of the appellant, determined to run and was the essence of his defence. The appellant himself was not called to give evidence.[14]Accordingly there was no evidence from him, other than the material gleaned from the interviews, as to the way in which he was holding the gun and firing the gun at the material time. That was the evidence upon which the jury ultimately convicted this appellant.[15]The only other evidence which has subsequently turned out to be of relevance which was before the jury was some very uncertain evidence about the distance over which the pistol was discharged at the time that the bullet struck the car.[16]The evidence of Mr Warlow was that essentially it was not possible, from the nature of the damage to the car, to determine how far the pistol had been from the car when the bullet was discharged. It certainly was not so close as to have left a powder mark or other similar damage on the car. But, in a passing and it seems to us throwaway remark, in answer to the judge, shortly before an adjournment, Mr Warlow agreed that it might have been as far away as 100 yards.[17]That was not an issue which was explored in any significant detail at the trial; and that is an important matter when we come to consider the nature of the Reference and the ground of appeal relating to fresh evidence. However, it should be noted that the witnesses who gave evidence did give some account of how far, either in terms of distance or time, the car was from the appellant.[18]Mr Canty, who was the driver of the car, said that the distance he had covered between passing the appellant and the shot could be no more than 30 feet, but he did agree it could have been longer. At a later point in his evidence he indicated that he was travelling between 25 and 30 miles per hour and that, about 10 to 15 seconds elapsed between his passing the appellant and the shot. However, when he was brought back to distances as opposed to times, he again placed the distance within a very short space, by indicating that it was no more than the back wall of the court which was something in the region of fifteen-and-a-half metres. Again, at another stage, he said that the distance would be within 25 metres; in other words, when asked about distances, the account that he was giving was that he was relatively close to the appellant when the shot was fired. The man who was the driver of the Golf was of the view that when the shot was fired the car was further away than any of the distances in court, that is the size of the court; but clearly he was not indicating that the car was any substantial distance away. The two passengers in the car which was hit gave different accounts in terms of time, as to the time which elapsed between the passing of the appellant and the shot. One said that it was one or two seconds, and the other said 10 to 15 seconds. There is no doubt that the car itself followed a course which took it close to the Golf and to the appellant, then diagonally away from the Golf onto a road.[19]The nature of the material which persuaded the Commission to refer the case to this court consisted, so far as relevant, in a report prepared for the appellant's family by Mr Law. In his report, Mr Law, who had had an opportunity to examine the gun and the material which had been available at trial, concluded that there had been a significant omission from the consideration of both Mr Warlow and Mr Mead at the time of the trial. He considered that neither had taken into account two particular features which should have been taken into account, firstly, the fact that, on tests that he had carried out on the gun, using the particular ammunition which was being used the gun would shoot low and to the right, and secondly the effect of gravity, and of air resistance, which would cause the bullet itself to slow and to drop. This meant that, in his view, the point of aim must have been higher and to the left of the point of impact. He did some calculations which suggested that, from a distance of 16 to 20 yards upwards, the point of aim would have had to have been above the level of the roof of the car to result in the bullet striking the rear of the car in the position that it did.[20]The Commission instructed a Dr Renshaw to examine the previous expert reports in the case. He did so, and has provided both to the Commission and to this Court careful reports; and he had given evidence to us in support of the application that we should receive his evidence.[21]His conclusion in the first instance, based on material with which he was provided but not based on any examination of the site where the tragedy took place, was, in accordance with the conclusions of Mr Law, that the distance between the gun and the car must have been somewhere between 15 and 40 yards at the time that the gun was fired. At that distance, he was satisfied that there would be no significant effect of the dropping of the bullet or any other effect which could undermine the conclusion that the muzzle of the pistol was pointing at the rear of the car.[22]However, he went to the scene and produced two supplementary reports as a result, in which he expressed concern about whether any confident conclusion could be drawn as to distance between the gun and the car when the shot was fired. He concluded essentially that there were two points which could have produced an angle of fire which would have resulted in the bullet entering the car as it did. One was, as had previously been assumed, when the car was some 15 to 40 yards away or thereabouts. The second was a position further down the road, in the direction that the car undoubtedly took when leaving the scene, but near some readily identifiable landmarks, namely the buildings of the sailing club, some 185 yards away from the point at which the pistol would have been fired.[23]His evidence was that the effect of gravity and of air resistance would have meant that, in order to have hit the back of the car from this distance, the pistol must have been aimed substantially above the level of the car, in order for that result to have eventuated.[24]Based upon that evidence, Mr Macdonald submits that the account given by Mr Warlow to the jury was an account which was essentially misleading. He does not suggest that that was deliberate in any way. But he suggests that the possibility existed, which had not been excluded, that the point of aim of the gun could have been substantially above the car, in a way which could justify the conclusion that the appellant might have been aiming, as he said, to miss the car.[25]He submits that that was an unfortunate omission, bearing in mind the fact that Mr Warlow himself is a very experienced forensic expert and should have been aware of the possibility of the effects of gravity and air resistance to a bullet. But it is, he submits, the more unfortunate because Mr Mead had in an addendum on his report, calculated what the effects of bullet drop would be at given distances, indicating that the drop from the level trajectory for a type of bullet fired by the appellant from this gun would be approximately 26.4 inches at 100 yards. However, it is to be noted that those calculations confirmed the view that Dr Renshaw had provided to the Commission and to us that the effect of bullet drop would not have had any material impact at under 50 yards.[26]The submission is therefore made to us that Dr Renshaw's evidence is credible evidence, that it is admissible evidence, that there has been a reasonable explanation for failure to adduce the evidence, and that the evidence provides a ground for allowing the appeal: in other words, that the criteria set out in section 23 of the Criminal Appeal Act 1968 have all been met.[27]We have no hesitation in accepting that Dr Renshaw's evidence was credible. There is no doubt that would have been admissible in trial. But there is rather more doubt about whether it can properly be said that there is a reasonable explanation for the failure to adduce the evidence in the previous proceedings, as will have been apparent from what we have already said. Mr Mead was available to give evidence. He had carried out the relevant calculations and could have given evidence in relation to bullet drop at the previous trial. It appears that in fact that aspect of the matter was not explored between Mr Mead and counsel and formed no part of their deliberations. The decision ultimately not to call Mr Mead was based on the concern which we have already alluded to. This was understandable for it was assumed that the distance between the fence and the car was less than 50 yards. The fact therefore is that the decision not to call Mr Mead is one which we have to consider with some care when evaluating whether or not there is a reasonable explanation for failure to adduce the evidence in those proceedings.[28]It seems to us that in fact the consideration of that question overlaps with consideration of the ultimate question, which is whether it appears to the Court that the evidence may afford any ground for allowing the appeal. The fact is that the totality of the evidence that was called in relation to distance gave absolutely no support for the proposition that the car could have been as far away as 185 yards from the place where the pistol was discharged. We acknowledge that two of the witnesses did talk about there being a passage of time of 10 to 15 seconds between passing the appellant and the firing of the shot. If indeed it be correct that the speed of the car was, say, 30 miles per hour, that would have meant that the car was travelling at 15 yards per second, which would have put the car somewhere like 300 yards away.[29]But essentially, all the witnesses who gave any indication about distance as opposed to time, including Mr Canty, who also gave evidence as to time, indicated that the distance was a short distance. In other words they were talking about a distance within a 50 yards radius. Again, we acknowledge that evidence as to distance, just as evidence as to time is notoriously unreliable and subjective. But we have no doubt whatsoever that the evidence simply does not fit the scenario that the pistol was fired when the car was 185 yards away. That was clearly the reason why no issue was taken up with Mr Mead about bullet drop from a greater distance, because it formed no part of the picture as it was presented to the court and therefore to counsel at trial. A further reason is that the proposition that the car was 185 yards away or so does not fit with the appellant's own account. The appellant's own account was that he fired down. That was the way he exculpated himself. He did not seek to exculpate himself by saying that he fired over the car or that he fired when it was a long distance away. It seems to us, in those circumstances, that the evidence of Dr Renshaw is evidence which, if it was called before a jury, would clearly have had no effect upon the jury's deliberations, for the reasons that we have given. In those circumstances, as we indicated earlier in the day, we do not consider that it is appropriate to receive that evidence and accordingly that ground of appeal falls away.[30]The second ground of appeal is one which in some ways has caused us more concern. The judge, in summing up the case, dealt with the defence in a very short passage at the end of the summing up. He told the jury that they had got the interviews which was material which they were entitled to consider, and indeed, there was a part of the interviews which had been played to the jury and they were reminded of that. However, he did not seek to provide any detailed assistance to the jury as to what parts of the interviews might be considered relevant. He did not sum up the defence arguments and he did not sum up the facts capable of supporting the defence case. The most that he said was this, and this was at the instigation of defence counsel:
"Members of the jury, if I had not made it clear, I was just about to summarise it in this way: The accused is saying: 'I did not intend to cause serious injury to anybody in that car. I did not intend to kill them. I accept that what I did was wildly, unlawfully, criminally reckless. That is why I pleaded guilty to manslaughter."
The only other aspect of the defence which could properly be said to have been specifically the subject of a direction by

the judge was in answer to a question from the jury, as follows:

"'Is an intention to hit the car the same thing as trying to hit an occupant/occupants in the car?'"
[31]He told the jury that the answer to that was no. They had to be satisfied that the intended bullet should cause serious harm to an occupant in the car.[32]Mr Macdonald has rightly referred us to a number of authorities, starting with R v Silverman (1988) 86 Cr App R 213, in which this Court has repeatedly indicated that there is an obligation on a judge to identify for the jury what the nature of the defence is, and to provide such assistance as is appropriate in the circumstances of the case.[33]The case of Silverman was a case involving obtaining property by deception. The appellant had not given evidence and this Court considered that the facts of the case required the judge to give some detailed help as to the nature of the appellant's defence. Similar comments were made in R v Bass [1992] Crim LR 647, a case involving a conspiracy to defraud, in connection with the 'ringing' of cars. Again, in R v Hillier and Farrer (1993) 97 Cr App R 249, this Court repeated what it had said in Silverman, in a case where a number of officers of a football club had been charged with conspiracy to cheat and various offences of false accounting. Again, they had not given evidence and the Court considered that the jury were entitled to have the help of the judge as to the material matters in the interview, and, indeed, the arguments generally of counsel. Then again, in the case of R v Curtin (24th May 1996), this Court said that those cases were important guidelines to judges as to the obligations they had in summing up the case to the jury.[34]Finally, we were referred to case R v Soames & Wareing [1999] Crim LR 89, in which once again the principle was restated in following the terms by a repetition of Rose LJ of what was said in the case of Curtin:
" ... it is a judge's duty, in summing up to a jury, to give directions about the relevant law, to refer to the salient pieces of evidence, to identify and focus attention upon the issues, and in each of those respects to do so as succinctly as the case permits. It follows that as part of this duty the judge must identify the defence. The way in which he does so will necessarily depend on all the circumstances of the place case."
[35]We do not consider that the judge carried out the exercise as we would consider it ought to have been carried out in this case. That, however, does not answer the question which we have to answer, which is whether or not on the facts of this case his failure in that respect renders the conviction unsafe.[36]The important features which have driven us to the conclusion that there is no basis upon which we could come to such a conclusion are that, essentially, although there was a substantial amount of expert evidence before the Court, the issue before the jury was a simple one which could be simply stated in relation to his intention at the time.[37]In those circumstances, we do not consider that the jury can have been in any doubt or confused about what it was that they had to decide, or the material upon which they could properly decide that question. It seems to us that that clearly could have been the view of the extremely experienced team who were advising the appellant at the time of the first appeal. That was an appeal at which this particular point could well have been taken had it been considered to be of significance. We take the view that the circumstances of the case were such that the jury could not in any way, as we have indicated, have been under any misapprehension as to the nature of the question it had to answer and the material upon which it could come to a conclusion about that question.[38]For those reasons, we are of the view that this conviction is not unsafe and, accordingly, the appeal must be dismissed.