Moran, R. v [2007] EWCA Crim 2947

Case No 200703618/D1[2007] EWCA Crim 2947
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 29th November 2007
Strand
London, WC2A 2LL
B e f o r e:
SIR IGOR JUDGE
MR JUSTICE MACKAY
MR JUSTICE DAVID CLARKE
Between
R E G I N ACrownv
Between
NOEL MORAN
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss J Korner QC & Mr D Kersh appeared for ApplicantMr P Clarke & Miss Z Johnson appeared for Crown
J U D G M E N T

SIR IGOR JUDGE

[1]: On 12th June 2007 at the Central Criminal Court before Her Honour Judge Goddard and a jury, Noel Moran was convicted of the murder of Christopher Burke (sometimes known as Mills) on 2nd January 2006. On 26th July he was sentenced to life imprisonment, with a minimum term of 15 years less 524 days, so that meant a minimum term of 13 years and 206 days. This is an application for leave to appeal against conviction.[2]This killing was the result of a joint enterprise between Moran and a man called Gavin Ward. Ward was tried separately from Moran, and he was convicted of murder on 30th May. On 26th July he was sentenced to life imprisonment, with a minimum term of 17 years less 574 days. There was a further co-accused with him, Stacey Ward. She was acquitted of perverting the course of justice.[3]Separate trials followed a joint trial for murder which started in October 2006. The jury in that trial was discharged as a result of something said by Ward when he was giving his evidence in-chief. Thereafter the Crown decided that, although the allegation was of a joint enterprise between Moran and Ward, there should be separate trials.[4]The background to the death of Christopher Burke seems to have involved a dispute between Ward and a man called Daryl Orvis at a New Year's party on 31st December 2005/1st January 2006 at the Fox and Pheasant public house. Orvis went to that party. He became involved in a fight. He was ejected in the early hours of the morning by a man called Paul McGinty. He later returned with others, including a man called Luke Oliver. He was seen, armed with a sword. Then Ward arrived at the scene, apparently looking for Orvis, but he was refused entry. He had a knife with him. He was waving it around. He appeared upset and angry. In that frame of mind he approached the deceased, who was in the car park, and held a knife to his face. Moran had been present at the Fox and Pheasant that evening but had not been involved in any trouble, and indeed at one point had given the deceased a friendly hug.[5]After Ward's threat to the deceased he found his way to the home of Orvis, where he caused damage to the door. The deceased later told his father that Ward had cut his face with a Samurai sword because he wanted the telephone numbers of some of his friends. He also reported that Ward had been to his home, kicked his door in and cut the mattress.[6]At about 11.15 on the night of 2nd January the deceased was at his home in West Drayton with Hayley Killick and her child. Gavin Ward and Moran entered that home. Both were armed with swords.[7]Three bangs were delivered to the door of the flat. Hayley Killick answered it. Ward and Moran came upstairs with a sword with a curved blade in each of their left hands. She disappeared into her daughter's room to protect her daughter and shut the door. She and her daughter got into a built in cupboard. She heard shouting which she thought was Ward, but she could not make out the words, and she could not remember hearing the applicant's voice but she heard the deceased scream and she then heard people running downstairs. The deceased called out to her. He was standing. There was a towel around his leg. He asked her to call an ambulance and then he lay down on the bed breathing heavily, and lost consciousness.[8]When she was cross-examined on behalf of Moran, she agreed that Ward had been the first up the stairs but she denied that the applicant was several seconds behind him. She also admitted that she had seen the men only for seconds before making her escape into her child's room. She disagreed that she had remained on the landing the whole time. She was asked about statements she had made to the police shortly after the incident, in one of which it was recorded that she said that one of the men was carrying a sword. She maintained the account she had given in evidence and she said that she had not heard Moran tell Ward to stop.[9]The deceased suffered a stab wound to his left thigh. He was taken to hospital. He was pronounced dead at 12.09 on 3rd January. The cause of death was loss of blood from the femoral artery. The wound was consistent with having been caused by a Samurai sword and would, on the evidence, have required moderate to severe force.[10]The two men, Ward and Moran, left the flat together and they made their escapes.[11]There were a number of telephone calls between McGinty and Ward, one of which was timed at 2.19 on 3rd January. McGinty told others that he had informed Ward of the death of the deceased. Ward had denied that, saying that he had only stabbed the deceased in the leg.[12]By 9.20 on 3rd January, Ward and Moran travelled together on the Holyhead to Dublin ferry with a Renault car which belonged to Ward's sister, Stacey, using the names B and C Moran. Moran handed himself into the police on 16th February 2006 and he was arrested for murder.[13]At an earlier stage before the murder of the deceased, in June 2004, three Samurai swords had been found in Ward's bedroom. On 3rd January 2006 Moran's home was searched and an empty scabbard and a scabbard with a sword were found on some clothes by the bed. Later, on 16th November 2006, Moran's father handed in a sword and scabbard to the police which he said belonged to Moran but which had gone missing in December 2005 and had been retrieved after Moran's arrest.[14]Ward had previous convictions for serious violence, including grievous bodily harm with intent, which involved using a bottle as a weapon in some unfortunate victim's face, and affray. He had been barred from public houses in the local area because of his aggression. Moran, on the other hand, had no relevant previous convictions, but he and Ward had been involved together in an incident outside "Royales" nightclub in June 2005. No charges arose from his or indeed Ward's involvement in that incident but their activities, and Moran's in particular, had been captured by CCTV. In the incident Ward was seen to punch a man and then Moran was seen to push, or punch him and subsequently, when the victim was on the ground, he kicked or stamped him in the area of the top of his body.[15]The prosecution case was that these two men were jointly responsible for the murder of the deceased. The case was that both were seen by Hayley Killick armed with swords when they entered the deceased's home and then went into his bedroom. The fatal wound was administered with one of the swords, by one of the two of them as part of a joint plan to kill or seriously injure the deceased. It was, on the Crown's case, therefore, a premeditated plan.[16]The Crown relied on the evidence of the Royales incident. The objective, although we shall come to this in a little more detail, was to demonstrate a proved tendency, on the part of Moran, to use violence; that he and Ward had been involved together in violence on a previous occasion and that he was perfectly well aware of Ward's tendency to use violence. The admission of the evidence relating to the Royales incident provides the first ground of appeal. We shall come to it in due course.[17]The defendant gave a prepared statement for the purposes of his interview. He said that he did not wish to make any detailed statement until such time:
"... as you make full disclosure of those matters upon which my solicitor needs more information. What I will say at this stage is that I did not kill Christopher Burke, I did not conspire with anyone to kill him and I was not part of any joint enterprise to kill him."
[18]A defence case statement was supplied, the precise details of it are unclear to us. We have no copy but we need not adjourn the hearing of this application for a copy to be obtained. It appears that the defence case statement denied that Moran was armed, or that he was aware that Ward intended to assault the deceased, and denied that he was party to any joint enterprise. The defence case statement adds that Ward was seen struggling with the deceased who was bleeding.[19]Moran gave evidence at trial. He claimed a good friendship with the deceased. He had known Ward for about 4 years but had not seen him much between June and Christmas 2005. As far as he was aware, Ward and the deceased were friends but, in the end, that friendship ceased, partly at any rate because the deceased was fed up with always being asked to drive him around. Indeed it was accepted that the deceased had been stopped by the police on no less than 17 occasions driving Ward's car. Ward had the habit of ringing up Moran and asking him to drive, and he had been stopped by the police driving Ward's car on no less than 13 occasions since June 2005. He described his knowledge of Ward's tendency to violence: he was a short tempered man. He had heard stories about Ward kicking in someone's door and shooting them. He thought Ward was a bully but he did not think that he would harm or attack any of his friends. He said that he was trying to avoid Ward and he had told his father to say that he was out if ever Ward called.[20]He had only a limited recollection of the incident at Royales. He accepted that from the CCTV footage he appeared to be punching the man that Ward had first punched, but said that he had in fact pushed him away from Ward. Thereafter a general fight had broken out and he had kicked the man on the floor in the back and the shoulder, but not in the direction of his head. This incident had not been planned. There was no "team work".[21]As to 2nd January itself, Ward had picked him up in his BMW. They had gone for a drink together. Ward then received a telephone call and told the applicant that people were out to shoot him. He panicked. He told the applicant to drive to the West End where nobody knew them. They were indeed stopped by the police and when they were stopped they were on their way to see the deceased, because Ward had said that they wanted to see if it was the deceased who was looking out for them. He said that he was unaware at the time that Ward had recently cut the face of the deceased and indeed damaged his mattress. He just thought the two of them were going together to see a mutual friend for a chat.[22]When they arrived at the deceased's address they parked by the garage and Ward then reached into the back of the car and pulled out a sword. Moran said that he had not realised that the sword was there at all. It was similar in size to the one later recovered from his house. He had seen it before, in Ward's bedroom. He did not know what was happening, but he certainly did not think Ward was going to use the sword to attack the deceased. Ward ran towards the door of the deceased's home fairly quickly. He kicked the door once and went straight through. Moran waited 10 to 15 seconds before following. He did follow but he was not carrying any weapon. There was no arrangement for him to do anything to the deceased. He heard Ward shouting aggressively and so he went to find out what was going on. He saw Hayley Killick on the landing at the top of the stairs. She was there the whole time. She did not go to protect her daughter. He heard shouting and screaming coming from the bedroom. He went a couple of feet into that room. He saw that Ward was on top of the deceased, with his left hand round the deceased's throat and the sword in his right arm. Ward had his legs wrapped round the deceased and he was shouting and screaming. He, Moran, shouted "stop it, let's get out" and after a few seconds Ward's attack on the deceased ceased.[23]Moran did not see any injury to the deceased but he could see some small blood matters on the duvet which was over the deceased. Ward got up and left the deceased and Moran ran downstairs with Ward following behind. They got into the car. Ward was still carrying the sword in his hand. He asked Ward what had happened. Ward said he had given the deceased a nick on the leg. He did not know how serious the injury was and he thought that Ward did not know either. He suggested to Ward that they should get rid of the sword and leave the area but Ward wanted to go to Orvis' house. Ward told him they could not go home because people were looking for them. He realised that Ward had enemies but he was not aware people were looking for him too. He agreed to drive Ward to Orvis' house because he thought he would be safest in the car. They both got out of the car. He persuaded Ward to leave the sword in the car. Ward kicked the door in and he came out seconds later and they agreed to get out of the area. At a later stage Ward received a telephone call which related to the deceased and he heard Ward say: "No way, it's not true, I only stabbed him in the leg".[24]Ward decided they should go to Ireland. He agreed to do so because he was afraid of what Ward would do if he did not. Ward's sister met him with her car, some money and some clothes for Ward. He did not need to change as there was no blood on him. They went straight to the ferry.[25]That is a narrative of some of the evidence that was put before the jury in this case for the Crown to demonstrate a joint enterprise in which Moran was involved with Ward in a murderous enterprise, and by which Moran denied involvement, criminal involvement in the death of the deceased.[26]The judge summed the case up to the jury. No criticism is directed at the summing-up or the directions of law which she provided. Indeed she handed her directions of law, in relation to the critical matters in this particular case, in writing, to the jury which took them away with them.[27]We come now to the second ground of appeal, which arises from the jury's verdict. The judge had given the jury an appropriate warning during the trial about the way in which each member of the jury should deal with any matters, whether within the jury room itself or outside the jury room, which were causing him or her concern. After they had been in retirement from 12.46, at about 4.00 pm on that day the judge received a note from the jury. She told counsel that she had received the note. She said, without indicating the numbers involved that some of the jury were for murder and some was for manslaughter. She said that, given the time that the jury had been deliberating she did not want to give a majority direction at that time of the afternoon.[28]In the normal course of events the contents of that note would not be revealed. In view of the ground of appeal arising from the jury's verdict, we believe that the note should be ventilated publicly, as it has been in the course of the application:
"We are currently undecided to our verdict. We have a split decision. Half (50%) of the jury are for murder another half (50%) are for manslaughter. Please could you provide further guidance in order to reach our verdict."
It is plain that if that were to represent a final view of the jury there could not have been an appropriate verdict of murder. It is also plain, again if that were to be regarded as the final view of the jury, that they all rejected the defence case. It was to be a verdict one way or another of unlawful homicide. But, this was simply a note to the judge asking for further guidance. It represented their "current view." That evening the judge did not give any relevant further guidance. She suggested that she would consider saying something to the jury about a majority direction on the following morning after perhaps an hour or so of further deliberation. When the jury returned to court she directed them simply to the effect that having received the note setting out the present state of their deliberations, the only thing she would say at the moment was that they should take the murder count first, that they knew what the prosecution had to prove, because they had her directions in writing, and that in order to return a verdict of either guilty or not guilty in relation to murder they all had to be agreed. She was not dealing with questions of majority. If they were all agreed that Moran was guilty of murder, then that would be the end of the matter, but if they were all agreed they were not sure that the prosecution had made out murder, then the verdict would be not guilty of murder and they would move to consider manslaughter. Again, if they considered manslaughter before they could return a verdict of guilty or not guilty on that count, it was to be a unanimous verdict.[29]The jury left court. They returned the following morning. They resumed their deliberations. The judge did not give any majority verdict that morning. She had a discussion with counsel about the possible consequences, if the jury adhered to the note which they had sent her and the sometimes difficult problem which has to be addressed is governed by the case of R v Saunders [1988] AC 148, that is to say where the jury disagree on murder but agree on manslaughter. She asked counsel to refresh their own memories of the case of Saunders, in case there were further submissions that she needed to receive, they left. The jury continued with its deliberations and eventually the judge received a note to the effect that they had reached a unanimous verdict. The jury returned to court with their verdict at 2.13 in the afternoon. The clerk proceeded to take the verdict. The clerk asked whether the jury had reached a verdict upon which they were all agreed. The foreman replied "yes". The clerk asked whether they found the defendant, Moran, guilty or not guilty of murder and the foreman replied "guilty". The clerk asked:
"You find the defendant guilty of murder and that is the verdict of you all?"
The foreman replied "Yes".[30]It is not suggested by anyone that there was any sign or suggestion of dissent, or even concern, among any members of the jury when the foreman returned their verdicts. The jury was discharged, no doubt with the usual expression of gratitude. They left court and dispersed. That was or appeared to be the end of this matter for them.[31]The first ground of appeal is based on the decision of the judge to admit the evidence of the Royales incident. Miss Korner QC takes as her first point the fact that the Crown had failed to go through the appropriate processes, required by statute, which should be undertaken before an application to admit what is described as "bad character" evidence is engaged. Her complaint is a perfectly legitimate one: the prosecution ought to follow the procedures. They should not turn up at the last minute with an application in relation to bad character. Sometimes that can be unfair, sometimes it can be inconvenient, in any event it is a failure to comply with the appropriate requirements. This was rather an unusual case. There was no doubt that the existence of the CCTV footage from the Royales incident was known about to both defendants but Miss Korner's solicitors had twice written asking whether this material was to be used at the trial of Moran, on his own, without receiving any response. We are not even sure that there was the courtesy of an acknowledgment. But by the time the case was ready for trial the Crown had included among its witness the officer who was involved in and who would be responsible for the production of that CCTV film.[32]The point was drawn to the judge's attention. It was accepted before us, and we suspect was accepted before the judge, that except possibly there might be additional CCTV material which would serve to demonstrate that in the course of the Royales incident the appellant was acting or may have been acting in self-defence, the real point related to the admissibility and the exercise of the judge's discretion. In this Court we have looked at the way in which the judge addressed the failure to comply with the requirements. The non-compliance left her with a discretion whether to admit the evidence notwithstanding non-compliance, and we can find nothing to suggest any ground for interfering with this experienced judge's decision that this material should be admitted notwithstanding the various deficiencies by the prosecution. It is difficult in this Court to imagine that we should regard a conviction for murder as unsafe as a means of disciplining the Crown Prosecution Service and encouraging them, on other occasions, to be more efficient than they were here.[33]Miss Korner, however, attacks the heart of the issue, the admission of this material at all. She has drawn our attention to the relevant statutory provisions, first section 98 of the 2003 Act, misconduct and the definition of misconduct in the relevant part of the Act, and then on to section 101 and ultimately to section 103. The issue was fully argued before Judge Goddard and in effect Miss Korner repeated the submissions that she made to Judge Goddard.[34]The judge had to reflect on the way in which the prosecution were advancing the case that this misconduct, as shown on the CCTV film, should be admitted in evidence. The Crown's case was that it was relevant, in the language of section 101(1)(d), to an important matter in issue between the defendant and the prosecution. On the Crown's case this evidence would demonstrate propensity in Moran to be violent, second, that the two men, who were said by the Crown to be jointly responsible for the murder of the deceased, had been involved together on a previous occasion in an act of violence, and third, that Moran had direct personal previous experience of Ward's tendency to be violent. The Crown also sought to admit to have this evidence admitted to rebut the defence, as understood from the Defence Case Statement, that although present at the incident, Moran was, as the judge put it, "a passive bystander". The judge reflected on some of the authorities, drawn to her attention including Edwards and Hanson, both of which are well-known and she then reflected on the contentions of Miss Korner. Miss Korner suggested that the Royales incident did not go to what could properly be described as propensity as explained in section 103(1) of the Act. In particular it did not show propensity to commit offences of the kind with which her client, Moran, was charged. It was, she was contending, as she did before us, a wholly different type of incident, not least because the Royales incident operated, as the Crown put it, "spontaneous team work between these two men", whereas the incident involving the deceased, again as the Crown put it, involved an allegation that the two men had "armed themselves and made their way directly and specifically to the deceased's home". Moreover, those weapons and their possession demonstrated another difference between the Royales incident and the incident with which the jury would be concerned, that there were no weapons taken or involved in the Royales incident. There would be no dispute that Moran knew of Ward's propensity to violence.[35]The judge came to the conclusion that the incident represented misconduct for the purposes of section 98. It was true that there was no conviction for any offence arising from it but, nevertheless, the incident, as shown on the CCTV, fell within the ambit of misconduct for the purposes of the Act. She believed that the issue of Moran's behaviour on that occasion was "bad character" and relevant to issues between him and the Crown. There was his own propensity to violence, his involvement with Ward on a previous occasion in an act of violence and his personal experience of Ward's tendency to be violent. The judge said that she was not admitting the evidence to rebut any possible defence. As to that we would simply observe that another judge might have taken a different view. She also took account, in more general terms, that the Royales incident had occurred some 6 months earlier and it was a single event.[36]In the course of her ruling she had to consider an argument by Miss Korner that, if the evidence was admissible and fell within the ambit of section 98 onwards then, as a matter of discretion, this CCTV footage should not be admitted. Quite apart from the general discretion to exclude evidence found in section 78 of Police and Criminal Evidence Act, this was a clear case in which to consider the specific discretionary powers of the court, provided in section 101. The main argument in relation to discretion was the danger, if this CCTV footage were admitted, that it would have a disproportionate impact to its actual importance. It would provide a film rather than a description; it would be full of powerful visual images and, in those circumstances, inevitably it would assume too great an importance in the jury's deliberation.[37]Judge Goddard carefully addressed that issue. She came to the conclusion that the admission of this evidence would not have an adverse effect on the fairness of the trial. The question for us is, first, whether the judge was right to admit the evidence, as to which we have no doubt: it was admissible, it came fully within the ambit of the relevant statutory provisions. As to the exercise of her discretion, this is an area with which we are extremely reluctant to interfere unless some misapprehension, or misdirection can be demonstrated on the part of the judge. No such misapprehension or misdirection can be demonstrated here. A very experienced and respected judge came to the conclusion that the trial could continue, fairly, if this evidence were admitted. In those circumstances, there is no realistic basis for a successful appeal against conviction on the first ground.[38]We now come to the second ground. After the jury dispersed, and left court, the Court received two letters. We emphasise that no complaint was made about any aspect of the process of deliberation before they were received.[39]We have not identified the jurors who wrote to the court, one wrote to a court official, another wrote to Judge Goddard herself. The letter that was sent to the court official was given to the judge and the judge made sure that both letters were sent to the Registrar of Criminal Appeals. He made them available to counsel and solicitor who acted for Moran throughout trial. These letters are said to demonstrate that there was a miscarriage of justice. They at least demonstrate sufficient of a possibility of a miscarriage of justice that we should now order a further enquiry by the Criminal Cases Review Commission into events in the jury room.[40]We have described the letter dated 18th June, the type script letter, as letter B. This juror, and we shall assume these letters were sent by members of the jury, says that he or she was a member of the jury and that he found the deliberation "extremely difficult". It describes how he felt that the verdict was very harsh for Mr Moran. He stressed that he felt "extremely pressurised or even 'bullied' into agreeing with the majority vote of guilty". He says "You directed us to follow through the murder steps first then on to the manslaughter points, but we only read through the murder points". The letter ends by saying:
"I understand it is too late now as the trial is over but if possible, is there anything else that can be done? May be take Moran to trial again as our verdict was not truly unanimous."
[41]Letter A follows the telephone conversation and says "This juror feels as though Moran (unanimously convicted of murder by a jury) that the wrong decision has been made." He or she then describes that the deliberation period was rushed, there were older and domineering jurors also present who did not take his or her suggestions seriously. She felt "racked with guilt" for not being strong and courageous enough to deal with it at the time. I have read sufficient of the letters to enable Miss Korner to identify her ground of appeal.[42]The problem with these letters is very simple. They provide no arguable basis for further investigation, nor any basis on which a further investigation could take place without wholly contravening the elementary principles which relate to the confidentiality of the jury deliberations. In fact, expressions of unhappiness by jurors present at the verdict apparently giving their full informed consent to the guilty verdict, but then regretting afterwards that they had done are unusual but not a particularly rare event. This can follow for all sorts of reasons. In this trial there is no evidence of any extrinsic pressure on any juror. There is no evidence of any impropriety by any juror which can be investigated. There is an expression, in effect, that looking back on it, after they left court; that these jurors were concerned about the conviction for murder for which they were responsible.[43]There is nothing in the case to suggest any kind of misconduct, such as tossing a coin, or to use another example using a ouija board for the purpose of returning a verdict. There is nothing to suggest that at the time when the verdict was returned, it was other than a verdict which the jurors who have now written their letters were entirely content with. For a juror of course to become troubled about a difficult decision, (and it always is a difficult decision,) after a verdict, and then to seek to blame others for an asserted inability to maintain their asserted disagreement provides no basis for further investigation.[44]We do not think that the fact that the jury sent a note in on the afternoon before they returned their verdict indicating where they had arrived at in their discussions is of any relevance at all: that reflected where the jury stood at that stage. That is not uncommon, it is to be expected. Jurors go to their rooms to deliberate. They think about what they have heard. They reflect on the views expressed by others. They may each have a preliminary view at the start of their discussions and they may need to reflect on the views of others to decide where their consciences should lead them. What is clear is that by the time the jury did return their verdicts, those preliminary disagreements were resolved. They returned unequivocal unanimous verdicts of guilty.[45]In our judgment, by the time these letters arrived, it was too late for the jurors who were unhappy about the consequences of their decision to be able to require the court to resuscitate the case and conduct an inquiry of the kind which would inevitably be required into what happened in the jury room as the deliberations were taking place.[46]In those circumstances, notwithstanding that two jurors have expressed second thoughts, or demonstrated changes of heart about what they were parties to when they were sitting in the jury box, in open court, there is no sufficient basis for concluding that there was a miscarriage of justice. In those circumstances, notwithstanding Miss Korner's valiant efforts on behalf of her client, we shall dismiss the application for leave to appeal against conviction.[47]MR CLARKE: My Lords, out of courtesy to the two jurors, who obviously felt strongly about it, the respondents may tell us about the letters, I have felt that I should ask your Lordships leave for the Central Criminal Court to send a copy of this judgment to those two jurors.

SIR IGOR JUDGE: I can think of no reason why--

[49]MR CLARKE: Exactly. We could not rule that without your Lordships accent because it is communicating with jurors about their deliberations and the like. Could I pass on to the court administrator at the Central Criminal Court, when it is printed, that your Lordship's judgment should be sent to the two jurors?[50]MISS KORNER: I do not think it is a matter for me to opine upon.[51]MR CLARKE: Not do without your Lordship's leave.

SIR IGOR JUDGE: It is a matter of public record, Mr Clarke. The cost issue. There is no reason at all why that should not be done. Thank you for mentioning it. They should receive it. Are you content that you take on the responsibility of letting the officials at the Old Bailey know this?

[53]MR CLARKE: Yes, I will do that personally.

SIR IGOR JUDGE: Thank you very much indeed.