Brima, R. v [2006] EWCA Crim 408

Case No 200503100/C4[2006] EWCA Crim 408
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 8th February 2006
Strand
London, WC2
B E F O R E:
LADY JUSTICE HALLETT
MR JUSTICE NEWMAN
MR JUSTICE ROYCE
Between
R E G I N ACrown-v-
Between
JIMMY BRIMA
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 D JANNER QC appeared for APPELLANTMR A MALCOLM QC appeared for CROWN
J U D G M E N T
[1]MR JUSTICE ROYCE: It was on 25th May 2005 that this appellant, Jimmy Brima, now aged 18, was convicted of murder at the Central Criminal Court.[2]Saman Mohammed was an asylum seeker. On 12th October 2004, he went out with his girlfriend, Michelle Baker, to look at a flat in Woolwich. They came across a young black man called Christopher Barnes-Christian. Mohammed spoke to him. Barnes-Christian called him "a fucking idiot". Mohammed called him a "bastard". After this exchange of pleasantries they parted company.[3]At about 1.00 pm, after Mohammed and his girlfriend had looked at the flat, they were in Herbert Road in Woolwich, near an employment bureau called Changes in Common. They came across Barnes-Christian again. He was with a Turkish man called Azil Dogan. Mohammed and Barnes-Christian began to fight. That fight was broken up by an off-duty police officer, Douglas Scott-Skinner. Almost immediately another man came on the scene; he stabbed Mohammed in the stomach and made off.[4]The appellant was subsequently arrested and made no comment in interview on legal advice.[5]At trial, there was no issue that Mohammed had been murdered. The issue was whether or not his murderer was the appellant or someone else. It was the appellant's positive case, though he did not give evidence, that that other person was a man called Adeoye.[6]The appellant has been given leave to appeal against conviction on two grounds. The first ground was as follows. That evidence of two of the appellant's previous convictions should not have an admitted, under section 101(1)(d) of the Criminal Justice Act 2003, as their admission acted to bolster a manifestly weak case and did not amount to evidence of propensity to commit this offence. Alternatively, the evidence should be excluded under section 101(3).[7]Ground 2, the judge should have stopped the case at the close of the prosecution case. It is necessary, therefore, to consider what the evidence against the appellant was. There were essentially three elements. First, there was identification evidence from a man called Tuna Ates. He was working in his uncle's kebab and pizza shop in Herbert Road. From it, he saw Barnes-Christian, whom he knew, arguing with another man, who he did not know. He saw them take their coats off and start fighting until Scott-Skinner, who he did not know, broke the fight up. He then saw someone he knew as Barnes-Christian's friend coming from the deceased's right-hand side. He described how he had something concealed in his right hand. He came and hit the deceased with it in the stomach. He then turned and rushed off. He said in evidence the man was about five feet tall, skinny and about 18. He wore a baseball cap back to front and a hood. He had dark coloured clothing and light tracksuit bottoms. He said that there was nothing obscuring his view and the weather was clear. He described how he saw the attacker relatively close to him, when he ran past his shop, after the stabbing. He saw his face. The incident lasted a matter of seconds.[8]Mr Ates knew the appellant as he had come into his uncle's shop previously on several occasions. He knew he had a gold tooth and a tattoo on his neck. He did not see those at the time, although he said the neck was covered up. He had seen them when the man was in the shop. It was suggested to him by the defence that he hated the appellant, because in his statement made to the police he described him as rude. He said he did come into the shop and cause a nuisance but he said lots of youngsters came in and asked him for food. He said of the appellant "he is an 18 year old young man but I did not hate him". He had gone to the police on 18th October and he had identified the appellant as the attacker on a video identification on 15th November.[9]The prosecution called an appreciable number of other witnesses, some of whom were able to give a description and some of whom had been asked to look at some CCTV footage. We shall deal with them briefly.[10]Michelle Baker, the girlfriend, only saw the attacker's back. She thought he was wearing a pom pom hat. Scott-Skinner, the off-duty policeman, said the man was all in black. He described him as having a top with a hood which was down. He said that he might have smiled. The significance of that comment, says Mr Janner QC, on behalf of the appellant, is that had he smiled he would have been able to see the appellant's gold tooth.[11]Three witnesses were called from the Changes and Common Employment Bureau. That was on the same side of the road as the killing but the opposite side from where the killer could be seen to have come.[12]Janice Martin described the attacker as nondescript, he was about 5 feet 9/10 tall. She did not see his face. She did not find that the CCTV footage assisted her recollection.[13]Sandra Frith saw a man but not the stabbing. Again, the Video did not assist her.[14]Celia Johnson saw some fighting. She said it stopped and she saw a man collapse. Again the video did not assist in her case.[15]Two witnesses were called from the shop next door, the London Electric Company. Jodie Haward saw the fighting stop. The black man came up and charged the white man in the stomach. She said there was blood. The black man ran and turned to look at the white man and ran off. He was small and hooded and had no hat on.[16]Luke Cicognani saw someone, not one of those who had been fighting, appear as one continuous movement, bump into or punch one of the fighters and then go out of the sight. He could not describe him.[17]A man called Matthew Cooper was working on a roof opposite. He saw some fighting and said there were lots of people. When the fighting stopped a black man left the group and ran off. He was just under six feet tall, had a hat on, perhaps a baseball cap but with flaps. The video showed a similar figure but he could give no positive description.[18]Pervez Mohammed saw some fighting. It had more or less stopped when a third man ran up, punched another and ran off. He could not identify him. He said he looked about 5 feet 11 to 6 feet tall.[19]The witnesses who took part in the video identification parade, namely Scott-Skinner, Haward, Cooper and Pervez Mohammed did not identify the defendant. There was one other individual called Rashih, who was not called as a witness, who apparently failed to identify him also.[20]The Crown did not shrink from calling three other police witnesses who had looked at the CCTV footage on separate viewings. Firstly, Police Constable Hobbs, who knew Adeoye. He identified him on the video, he said from his body language and the clothing. He said while the face was not very clear, it was clear enough to identify him.[21]Police Constable Lopez also knew Adeoye and he confidently identified him on the video from his physical features and clothing, although he said the face was not clear.[22]Police Community Support Officer Marie Packer also knew Adeoye. She identified him on two videos, but her identification of him on the first video was demonstrated to be wrong because the individual concerned, it was accepted, was Barnes-Christian.[23]The Crown, in putting that evidence before the jury contended that it was mistaken.[24]We have had the opportunity this morning of viewing it for ourselves. We are bound to say that the very brief passage of CCTV footage available to those officers, makes it difficult to be confident that anyone could identify anybody upon it with conviction. In any event the matter was left to the jury for their consideration to evaluate the strengths or weaknesses of those identifications by those three officers.[25]Mr Janner makes five main submissions in relation to this identification evidence. First of all, he points out that it was a fleeting glance case. As to that, Mr Malcolm QC responds by drawing the Court's attention to the fact that Ates was in many respects in the best position to observe the killer. He was standing in the kebab and pizza shop, looking through the window. He could see the deceased and Barnes-Christian fighting, and the fight being broken up. He could then see the killer approach and conceal something in his hand under a cloth, before striking the deceased with it in the stomach. He was then in a position to watch the killer running down the street towards him, passing his shop on the opposite side of the road, and then running further down the street, until he went out of sight into Barnfield Road. There was nothing to obstruct his view by anything on the window, or anything else. The visibility was good.[26]Secondly, Mr Janner contends that Mr Ates had a motive for identifying the appellant. He points to what Mr Ates had said in his statement to the police regarding the appellant as a nuisance. However, Mr Ates dealt with that when he was cross-examined and pointed out it was no reason for him to hate the appellant. Thirdly, says Mr Janner, the DNA evidence, forensic evidence, is consistent with the killer being either the appellant or Adeoye. We will deal with that aspect of the criticism when we turn to the forensic evidence. Next, he says that there is identification evidence inconsistent with that from the three officers. We have already made reference to that aspect of the matter. Fifthly, Mr Janner maintains that there was substantial evidence that Adeoye may have been the killer.[27]The forensic evidence was the second element of the Crown's case. At a dustbin, not all that far from Adeoye's house, were found a number of items of clothing, including a top, some size 8 trainers and some tracksuit bottoms. The clothing was examined forensically. The tracksuit bottoms were found to have blood on the side of the upper right leg. The DNA profile matched that of the deceased. It was also found that there was weak DNA on the drawstring and pockets. That weak DNA was analysed and from the sample emanating from the drawstring, the prosecution expert found that the major contributor of the DNA was the appellant, in the sense that it matched his DNA. It was accordingly accepted by the defence that her conclusion that he was the usual wearer of the tracksuit bottoms was correct. The prosecution expert also found that there were at least two minor contributors to that sample. It was her evidence that the DNA in the minor component did not match Barnes-Christian or Joseph Adeoye, although some of the components did. But those components were relatively common. She agreed, in cross-examination, that she could not exclude the possibility that Adeoye had worn the tracksuit bottoms.[28]The third element of the case against the appellant came from Joseph Adeoye himself. He was aged 17. He had heard about the morning incident in Herbert Road, involving Barnes-Christian, who was his best friend. He had been telephoned and he said by both Barnes-Christian and by the appellant, who he knew less well. He arranged to meet up with them later that day, at about 5.00 or 6.00 pm. He was not in Herbert Road, he said, at the time of the killing but went there later, when it had been blocked off by the police. He described how he had met up with the appellant and a man called Fazal. The appellant had said something to him about stabbing someone and he had bag. He said he wanted to throw something away. He said he did in a bin shute. That bin shute was the one to which Adeoye subsequently took the police and from which they recovered the items to which we have made reference.[29]When he was initially approached by the police, he did not tell the truth, maintaining that he had been with his girlfriend until 5.00 pm. He indicated, when he gave evidence, that he was concerned about becoming involved in this matter.[30]Adeoye also gave evidence when shown a knife that had been found in Maypole Lane, not far from the appellant's address, that it was like one that he had previously seen in the appellant's house. There was no forensic evidence linking that knife with either the appellant or Adeoye.[31]Adeoye accepted that he had initially lied to the police. He accepted that he had lied, to some extent, on one matter when he was giving evidence. He agreed that his shoe size was 8, the same size as the trainers in the bin. The appellant's shoe size was 7.[32]When he was cross-examined, he was asked about his previous convictions for thefts, assaults, drug possession and six robberies. He had also been cautioned and charged with possession of offensive weapon offences.[33]At the time the judge ruled on the bad character application, Adeoye had not been cross-examined. He denied the suggestion that it was he who committed the murder. There are a number of criticisms relating to his credibility that Mr Janner has outlined before us this morning. When the judge came to sum the matter up, he said this:
"I have some directions as to your approach to [his] evidence, members of the jury. Firstly this: he says that on arrest, this is his evidence, he lied to the police saying he was with his girlfriend until 5 o'clock on this date. He also admitted, you will remember, later in his evidence to lying about receiving a letter from the police warning him to come to court. So I direct you, since he has admitted to lying in the course of these proceedings, to approach his evidence with caution in view of this, because in the circumstances, additionally, he may have a motive to shift blame away from himself and that is an additional reason for caution regarding his evidence."
[34]We turn then to the first ground of appeal. The Crown applied at the outset of the trial to adduce the evidence of two of the appellant's convictions. The first conviction was for assault occasioning actual bodily harm, on 27th November 2002. The offence had taken place on 1st August 2002. The facts were these. After an altercation with the victim earlier the same they the appellant approached him, caused him to fall over and stabbed him in the leg with a knife. The second conviction was for robbery on 28th April 2003 at Inner London Crown Court, for an offence committed on 12th September 2002. The facts were that the appellant had held a knife to the throat of the victim, and demanded his training shoes and top which the victim handed over. The prosecution contended that the appellant had a propensity to commit offences of violence using knives either by inflicting or threatening injury.[35]The judge approached the application with care. He postponed dealing with it until he had heard the evidence of Tuna Ates, the identifying witness and until he heard the evidence of Adeoye in-chief. The relevant sections of the Criminal Justice Act with which he was concerned, were section 101(1)(d), section 101(3), section 103(1) and section 103(2). They are sufficiently familiar for it to be unnecessary to set them out.[36]In giving his ruling it is clear that he had well in mind the guidance given by Rose LJ Vice-President in R v Hanson & Ors [2005] 2 Cr App R 21 at page 299. Part of that guidance at paragraph 10 was that the judge:
"...must always consider the strength of the prosecution case. If there is no or very little other evidence against the defendant, it is unlikely to be just to admit his previous convictions, whatever they are."
That is a passage that Mr Janner prays in aid.[37]The judge did consider the strength of the prosecution case. He said this:
"...I have heard evidence from a witness who identifies the defendant as the perpetrator. The defendant is known to that witness. I have also been told of forensic evidence that shows on 13th October on tracksuit bottoms found in the bin in Dawson Close, Woolwich, on the upper right leg, blood matching that of the deceased was found. Tests on the drawstring and inside the two pockets show the presence of DNA from more than one person. The results from the drawstring: the components matched the defendant; and it is said that this DNA is most likely to have come from the usual wearer of the tracksuit bottoms. Now Joseph Adeoye has given his evidence in chief. Although he was a reluctant witness, he has now given evidence saying the defendant admitted to him that he did the stabbing, and that he was with the defendant when he, in effect, got rid of items from a bag, linking him thus with the tracksuit bottoms. He also says he had seen a knife similar to PB/3 in the possession of the defendant shortly before the murder. The knife itself was found outside the Maypole Lane, at the scene. I do not conclude, that the case is so weak that it would be unjust to admit these two convictions."
Notwithstanding the careful analysis that Mr Janner has put before us, as to the evidence that the appellant faced, we are unpersuaded that it was insufficiently strong to justify the judge's conclusion.[38]He then went on to consider the three questions set out in paragraph 7 of the judgment of Rose LJ, in Hanson. The three questions are as follows:
"(1) Does the history of conviction(s) establish a propensity to commit offences of the kind charged? (2) Does that propensity make it more likely that the defendant committed the offence charged? (3) Is it unjust to rely on conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?"
[39]Mr Janner contends that the judge was wrong to conclude that the convictions established a propensity to commit murder. He argues that because severe force was used in the murder and severe force was not used in the previous conviction offences, propensity is not established. However, we bear in mind that the task of the judge was not to determine whether the previous convictions did in fact establish a propensity, but merely whether they had the capacity so to do. As Rose LJ said in Hanson:
"The court will not interfere unless the judge's judgment as to the capacity of an offence to establish the propensity is plainly wrong or the discretion has been exercised unreasonably in the Wednesbury sense."
[40]In our judgment, the conclusion as to the capacity of these convictions to establish the requisite propensity that was reached by the judge was correct. He also concluded that in answer to the question: does the propensity make it more likely that the defendant committed the offence charged? That, in his words "bearing in mind the proximity of these matters and nature it does". We agree. Thirdly: is it unjust to rely on these matters and in any event will the proceedings be unfair if they are admitted? The judge, again, came to the conclusion that it would not be unfair to admit the convictions. We do not consider that the judge was plainly wrong. We consider that he was plainly right.[41]The judge, in fact, was in a very good position having heard, at least part of the prosecution case, and a substantial part at that, to determine its strength or weakness. He had seen Ates give evidence. He had seen Adeoye give evidence in chief. In our judgment, he was fully entitled to reach the conclusion in relation to the previous convictions that he did reach. We accordingly see no force in the first ground of the appeal.[42]We would add this. Bearing in mind that it was going to be part of the appellant's case, when cross-examining Adeoye, that Adeoye was probably the murderer, it is highly probable that this evidence would have become admissible in any event under Gateway G. It is unnecessary, however, for us to consider that aspect of the matter further.[43]The second ground is that the case was so weak it ought to have been stopped. It follows from our earlier reasoning that we do not agree. This was a case, in our judgment, where the judge was fully entitled to conclude it should be left to the jury.[44]There is a third ground of appeal on which leave was not granted. Mr Janner pursued his application for leave upon it. The third ground is as follows: the prosecution should have carried out tests on the hairs and fibres obtained from the items from the bin to establish who wore the clothing and trainers at the time of the stabbing. This was essential in the light of the disputed inconclusive DNA evidence on the drawstrings of tracksuit bottoms. The conviction cannot be regarded as safe until the outcome of the tests are made. As we have indicated recovered from the bin was in addition to the tracksuit bottoms, trainers, size 8, and a Nike top.[45]The fact that hairs and fibres had been found on those items of clothing is evident from a witness statement from Miss Vraitch, the prosecution expert, dated 1st February 2005. Her approach, however, had been to seek to ascertain who had worn the tracksuit bottoms because of the evidence found in relation those as to the presence of the deceased's blood. There was no evidence that she had found linking the other items with the deceased.[46]The defence did request further DNA tests should be carried out on the component parts recovered from the tracksuit drawstring. It was not however until Miss Vraitch was being cross-examined that they suggested she should have carried out tests on hairs and fibres. She said she could carry out tests if so requested by the court. But the defence did not apply for her to do so. They appear to have been content to proceed on the basis that they could comment to the jury that no such tests had been carried out and thus there was some element of uncertainty. Miss Vraitch also said testing on hairs would not necessarily indicate much more, because hairs transfer very easily and sometimes easily via a secondary object. Consequently there was no evidence as to whose hairs were there. That was the position as summed up to the jury.[47]The defendant did not give evidence, but on his behalf, Dr Semikhodski, a DNA expert was called. On the issue of hairs he said that it was possible to obtain DNA from the root of hairs. We should indicate that his other evidence was to do with analysis of the minor components of the DNA extracted from the drawstring.

The judge summed the matter up in this way, quoting from the doctor:

"I conclude that the usual likely wearer of the tracksuit bottoms was the defendant."
In relation to the minor DNA component on the draw string, Dr Semikhodski made random match calculations to determine how possible it was that Adeoye or Barnes-Christian was the source of the minor component. His conclusion as summed up by

the judge was as follows:

"Now all this calculation is all a little bit speculative but it is based on several assumptions. Some of these are open to debate but I feel I am not justified in discounting the possibility the one of the men, most probably [Adeoye], was an occasional wearer of the trousers."
It is apparent that there was, accordingly, not a great deal between his conclusions and those of the prosecution expert. There was, in fact, in this case, no direct evidence that Adeoye had borrowed the tracksuit bottoms usually worn by the appellant. Neither was there any indirect evidence. We are invited to conclude that this conviction was unsafe. There is no criticism made of the judge's Turnbull direction on identification. There is no criticism of the way he directed the jury to approach Adeoye's evidence and the caution that they should use. There is no criticism of any other aspect of the summing-up. The plain fact of the matter is that there was no evidence called to contradict or refute the evidence that the prosecution had adduced.[48]We pay tribute to the careful arguments advanced by Mr Janner, but we are wholly unpersuaded that this conviction was unsafe. This appeal must be dismissed.