Devon, R. v [2006] EWCA Crim 388

Case No 2005/2900/B1[2006] EWCA Crim 388
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 17 February 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE STANLEY BURNTON
MR JUSTICE SIMON
Between
R E G I N ACrown-v-
Between
PAUL DEVON
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 A BOSCOE appeared for APPELLANTMR P HALL appeared for CROWN
J U D G M E N T

LORD JUSTICE KEENE:

On

[1]12th May 2005 at the Crown Court in Liverpool before His Honour Judge Macmillan, this appellant was convicted of doing an act tending and intended to pervert the course of public justice (count 1) and putting a person in fear of violence by harassment (count 2). He was sentenced to a total of six months' imprisonment and a two year restraining order. He now appeals against conviction on count 1 by leave of the single judge. He also renews his application for leave to appeal against conviction on count 2.[2]The complainant in respect of both counts was a man called Smith who lived in the same street as the appellant in Wallesey. Mr Smith lived at No 61, the appellant at No 53.[3]Mr Smith was due to be the principal witness against the appellant on 9th June 2004 when the appellant was due to stand trial on a charge of criminal damage. Count 1 was based on the complainant's evidence about an incident on the night before this trial was to take place, that is to say the night of 8th June 2004. The complainant said that at about midnight on that night he heard knocking on his door and saw the letter box open. Someone shouted through the letter box that they would burn his house down if he attended court. As a result the complainant was too frightened to go to court and did not attend. As we understand it the matter then did not proceed.[4]The complainant's evidence was that he recognised the voice as being that of the appellant whom he knew. He also said that he then saw the appellant going out through the front gate of the house. His evidence was that the scene was well lit and he saw the appellant clearly.[5]The appellant's case on this charge was that he was not there and did not shout any such threat. He said in evidence that he was at home that evening and was in bed by midnight. His partner supported that alibi in her evidence to the court. The jury, which convicted unanimously, clearly believed the complainant and disbelieved the appellant and his partner.[6]Although the appellant does not have leave on count 2 it is convenient to deal with the basic facts about that charge before turning to the grounds of appeal in each case. That second charge was founded upon two incidents said to have occurred on successive days. In the first, on 24th June 2004, the appellant, according to the complainant's evidence, was seen by him shouting abuse and calling him a faggot. The appellant broke the garden gate and threw something, a post of the gate, at the ground floor living room window.[7]The following day when the complainant was coming home he saw the appellant, he said, standing in the middle of the road. The complainant's evidence was that the appellant threw something through the bedroom window on the first floor breaking the window. The complainant rode around on his bicycle for a time and then, according to his evidence, went home where he found a piece of slate in the bedroom. He said he was seventy or eighty feet from the appellant when he saw him and it was pretty light.[8]In cross-examination he rejected a suggestion that there had been four people throwing things at his window. He said that he saw the appellant on his own in the middle of the road, although there were two people outside the pub nearby. Again, the appellant denied that he had done any such thing as was alleged in respect of this count.[9]In relation to the appeal on count 1, the ground of appeal put forward is based on further evidence which it is now sought to put before this court. It is said that a witness, Mr Stanley Washington, has now come forward saying that it was he who shouted through the letter box and not the appellant. We were not satisfied initially that this evidence met the terms of section 23 of the Criminal Appeal Act 1968 as to the reception by this court of fresh evidence and so we heard the evidence from Mr Washington orally this morning on a de bene esse basis - that is to say on a provisional basis to see whether it met the terms of the section.[10]His evidence was that on one occasion he visited the appellant and his partner, Jenny, bringing with him a bottle of vodka. However, neither the appellant nor his wife drank and they explained that the reason for that was that the appellant had to go to court the next day, "something about a paedophile". According to Mr Washington, he then went home and carried on drinking there until he had finished the bottle of vodka. After that he went out and went on what he described as a "pub crawl". Eventually he went to a pub round the corner from the complainant's house, something like 200 yards away. He got drunk. Eventually, he said, he went to the house which he believed to be the complainant's and knocked on the door. There was no answer and he shouted through the letter box. He could not explain why he did that. He said it just came back to him what had happened to him as a child when he was sexually abused. When he was cross-examined he said that he was just being abusive in the course of this shouting. He was not trying to stop the complainant giving evidence the next day and in effect he said he was not issuing threats to the complainant. All that he said was something like "I hope you burn in hell". After that he did not see the appellant or his partner Jenny for some time and when he did he learnt from Jenny that the appellant was in prison for shouting through the letter box. This, said Mr Washington, horrified him because it had been him, Stanley Washington, who had actually been shouting abuse through the complainant's letter box.[11]We have given careful consideration to this evidence. Mr Washington is a man with numerous previous convictions including no less than 32 for theft, burglary, handling or obtaining by deception and a further four for fraud or forgery. None of that of course means that he is not telling the truth today, but it does indicate that his honesty cannot be taken for granted.[12]Under section 23 of the 1968 Act one of the specific matters which this court, as a matter of law and understandably, is required to have regard to is whether the evidence proffered as fresh evidence appears to be capable of belief. Having listened to Mr Washington we can say straightaway that we do not regard his evidence as capable of belief. He found it almost impossible to explain why he would have shouted through the complainant's letter box. On his account of events he did not shout any sort of a threat to prevent Mr Smith going to court. Moreover, it was all happening on his account of events a long time after he had left the appellant's home and had heard about the appellant being in court the next day. When we put all that together with Mr Washington's record of dishonesty in the past, we simply cannot attach credence to what he now says. In those circumstances we decline to admit his evidence.[13]On count 1 there was in fact good identification evidence of the appellant from the complainant. He recognised not merely the appellant's voice but he also saw him as the appellant was leaving the property. The case against the appellant on this charge was, in our judgment, strong and we can see no basis upon which this conviction could be regarded as unsafe. It therefore follows that the appeal in relation to count 1 is dismissed.[14]We turn to the grounds advanced on count 2 in support of the renewed application for leave. There are several grounds here. One of those concerns a ruling made by the judge during the course of the trial. There was material available in the shape of a police Altaris log of a 999 call received by them on 25th June 2004 at 20.11 hours. The caller was a woman who gave no name or other details. According to the log she said that she had seen four people walk up to the complainant's property and throw a brick or slate through the bedroom window. The defence at trial wanted to put the log before the jury and the prosecution seems to have been willing for that to have been done. That was effectively confirmed today by Mr Hall, who appears for the prosecution. But the judge ruled in a very brief ruling that the log should not go in before the jury.[15]Mr Boscoe submits that that was an error on the part of the judge. He contends that the log was admissible evidence. Mr Hall, for the prosecution, finds it difficult to argue to the contrary. We agree that the log was admissible evidence. It was admissible under section 114 of the Criminal Justice Act 2003, in particular because all parties agreed to it going in - see section 114(1)(c). It could also in our judgment have gone in under section 117 as a document created by the holder of an office. It is unclear to us that either of these sections were expressly relied upon in argument at the time. It follows that the judge's attention may not have been drawn to them. Although a judge does have a discretion, even in respect of admissible evidence, to exclude that evidence under section 126 in certain circumstances, it does not seem to us that that was the basis of the judge's ruling. In our view he erred in making that ruling.[16]However, we do not regard that error as casting in itself any real doubt on the safety of this conviction. First of all although the complainant's evidence was that the appellant was alone when the slate was thrown, this anonymous caller was not providing any real evidence that the appellant was not the person who threw the slate. He may at some stage have been part of any such group of four and the complainant may have been inaccurate in that part of his evidence. But in addition, and in any event, the jury already knew about this call. In the course of cross-examining the complainant the appellant's advocate put the following to him, beginning at page 14 of the transcript of the complainant's evidence. It reads as follows:
"Q. What if I told you, Mr Smith, that the police received a 999 call from somebody else telling the police that they saw four people smash your window and that the police called at your home address and the police left a note at your home address? A. That's right, I've got the note, yes."
And then a little further down on page 15D:
"Q. What if I said to you then that this person who made the 999 call to the police said that she had seen four people, not one, four, throw something through your window and smash the window at about 8 o'clock on 25th June? A. There was two people outside the pub when I was coming round and there was one person on his own, that's Paul Devon, in the middle of the road and he had something in his hand. As I said before, I thought he had a wallet in his hand; it was a piece of slate."
It was never suggested by the Crown that the description of that telephone call received by the police was inaccurate or that the police had not received such a call. So the fact that the jury did not actually see the Altaris log does not seem to us to be of any real significance. The jury knew about this call and the contents of it in any event.[17]The other points raised in respect of count 2 depend upon further evidence which we have again heard on a de bene esse or provisional basis. First, photographs have now been taken by a law clerk with the appellant's solicitors of the gateway to the complainant's property. Those were taken in October 2005. Several of them show two pillars standing either side of the pathway at the front edge of the property. Those pillars appear to be concrete, painted white, with a wooden post attached to each. Of the gate itself there is no sign. It seems to have gone in its entirety. It is said that this fresh evidence casts doubt upon the complainant's credibility when he described at trial a gate post being thrown on one occasion through his ground floor window.[18]In the judgment of this court it needs to be borne in mind that the complainant gave somewhat varying descriptions of what was actually thrown on that occasion by the appellant. At one point, the first point where he refers to this in his evidence, he said (transcript page 7):
"... my gate was a bit damaged in the first place, it's an old gate, and he [the appellant] ripped the gate off and chucked it through my living room window..."
It seems unlikely that by that he meant the whole gate was thrown through the window. Later, under cross-examination, the complainant referred to what was thrown as being "a post of the gate, it's rotten the gate" - see page 10E. The appellant's advocate then, perhaps understandably, began using a form of shorthand, referring to what was thrown as a gate post and the complainant adopted that expression. But it seems to us on a fair reading of the complainant's evidence that he was talking about a piece of the gate being thrown, not about a gate post of the kind on which a gate is hung or to which a gate connects when closed. We therefore do not see that this further evidence might afford any ground for allowing an appeal against this conviction and we decline to receive it.[19]Finally, further evidence has been proffered from Neil Galloway about the breaking of the upstairs window which, in essence, he says came about as a result of children kicking a football. Once again we have today heard this evidence on a provisional basis. Mr Galloway said that on a summer's evening in 2004 he saw three or four children kicking a football about. They kicked it up and broke the front window of No 51. He then heard banging later that night as the window was boarded up. He was asked in cross-examination about when he first learnt about the charge against the appellant concerning the broken window and it is worth quoting those answers of his in full. He said:
"Yes, I saw Mr Devon a few days afterwards. He said that he had been arrested."
Mr Galloway explained that he lived opposite Mr Devon and he went on to say this:
"He said that he had been charged. He didn't say what with, just that it was about the man opposite."
In response to questions from the court he then said this:
"No, I didn't ask him what he had been charged with or about. It did not click with me at the time. It was only when he had been convicted that I realised it was about the window."
Then he went on to add this:
"I got called to court at the time. I don't know who wanted me. I was going to go there to tell them what I had seen."
[20]It seems to this court that one needs to bear in mind in assessing this evidence the contents of the witness statement made in this matter by Mr Galloway dated 22nd May 2005 and filed with form W. On page 2 of that witness statement, which Mr Galloway says is true to the best of his knowledge and belief and which he makes knowing that if tendered in evidence he shall be liable to prosecution if he has wilfully stated in it anything which he knows to be false or does not believe to be true: "The only reason I can relate to this particular matter is that a matter of just a few days after the window was broken I saw Mr Devon and he told me that he had been arrested. I think he said he had been charged with causing the damage to the window, the damage I saw caused by children kicking a football." ][21]It seems to us that there are a number of problems with Mr Galloway's evidence. First of all, on one interpretation of what he has said, this was evidence which could have been adduced at trial. According to his witness statement he saw the appellant a few days after the window had been broken and knew that the appellant had been arrested for the damage to the window. Of course, today he says he knew only that the appellant had been charged when he spoke to him. He did not know what he had been charged with. We are bound to say that we find that later version quite incredible. It seems to us to be inconceivable that, having heard that his friend had been charged with an offence, he did not ask what the offence was about in some detail and that he was not then told, and if that was so it would follow that he would have told Mr Devon what he knew about the children kicking the football. That would be the natural and normal sequence of events. It follows that the appellant knew or must have known about the availability of this evidence and no reasonable explanation has been put forward as to why it was not adduced at trial. Under section 23(2) we are bound to have regard to whether any reasonable explanation has been adduced as to why this was not put forward at trial.[22]Secondly, it is inherently lacking in credibility that the top floor window was broken by a football. The slate referred to by the complainant as being the article which broke the window was available as an exhibit. It is listed as an exhibit in the court papers. The complainant refers to it in a call to the police made soon after the event. That is recorded. The anonymous female caller referred to a brick or slate having been thrown through a bedroom window - see the details we have already referred to about the entry on the Altaris log of the 999 call. Thirdly, Mr Galloway's evidence, as will be apparent already from the short summary we have given, is riddled with inconsistencies. What he said in court this morning conflicts with his witness statement. He even refers to the house in question as No 51, which of course is not the complainant's, and even Mr Boscoe, who appears today on behalf of the appellant, has to say that he cannot explain the evidence given by Mr Galloway about being called to court on the day in question. There was nothing in the unused material to indicate that the Crown had ever taken a witness statement from Mr Galloway, and Mr Boscoe fairly says that he was not being called by the defence. That is yet another inconsistency in this man's evidence. For all those reasons which we have indicated we decline to receive the evidence of Neil Galloway.[23]It follows that none of the grounds advanced in respect of count 2 are properly arguable. The conclusion arrived at by the single judge when he refused leave was a sound one. We have no doubts as to the safety of this conviction. It follows that both the appeal and the renewed application are dismissed.[24]The appellant of course was on bail. He has now surrendered to his bail. There is an outstanding part of his sentence to be served?[25]MR BOSCOE: My Lord, there is. He has served, before bail was granted, 42 days in custody.

LORD JUSTICE KEENE: Well, I am afraid he must be taken down and serve the appropriate remainder.

Cited in 1 later judgment