Labastide & Anor, R v [2008] EWCA Crim 2564

[2008] EWCA Crim 2564Case No 200700315 C1, 200700318 C1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/11/2008
Before
LORD JUSTICE MAURICE KAYMR JUSTICE KINGMR JUSTICE SWEENEY
Between
RCrownLabastide and CartyDefendant
Mr Michael Turner QC for LabastideMr Graham Trembath QC and Mr Justin Cole for CartyMr William Boyce QC and Miss Jane Osborne for CrownHearing Hearing date : 31 October 2008
JudgmentLord Justice Maurice Kay
[1]On the 12th of December 2006 at the Central Criminal Court before HH Judge Kramer QC the appellants were convicted of the murder on the 30th of August 2004 of Lee Christopher Subaran. Labastide was convicted unanimously. Carty was convicted by a majority of 10-2. Each now appeals to this court against conviction with leave of the Full Court granted on the 16 April 2008 on a limited basis.[2]A co-accused Conroy Smith was also convicted of the murder. Smith has not sought to renew his application for leave to appeal against conviction.[3]In the case of Labastide this was a retrial. At the first trial in July 2005 he had been tried with four others. Of these 3 were convicted of the murder, namely Shane Taylor, Tafari Ducas and Leon Roberts. The fourth,Tunde Thomas, was acquitted. The jury were unable to agree a verdict in relation to Labastide. Subsequently Carty and Smith were charged with the murder.[4]The events of the murder followed on the Notting Hill Carnival held that day. At about 10.18pm the deceased was one of a large number of people attending a party in a park at Kensal Green. He was confronted by a group of men and a number of shots were fired at close range. Two shots hit him : one entered the left side of his chest and travelled through both lungs and a main artery. He managed to scramble to the park entrance said to be some 25-30 metres away but there collapsed and was pronounced dead less than an hour later.[5]The Crown case was that this was a joint enterprise carried out by members of a gang known as the “Mus Luv Crew”. There was evidence that the appellants were members of this gang . The Crown alleged that the appellants were in that group that night and that they and the other gang members were all armed with firearms. There was no obvious motive for the killing or causing serious harm to the victim who was otherwise known as “ Mark” or “Gangster”.[6]The main evidence against each of the appellants came from the oral evidence of two eye witnesses Tyrone Subaran, the brother of the deceased, and Sabrina Blackburn, a friend ,who were with the deceased at the time of the shooting. Each in their different ways purported to identify the appellants as being involved. Sabrina knew both appellants. She was a former girl friend of Carty and had known Labastide (or “J View”) most of her life. Sabrina had not given live evidence at the original trial when her statements were read, being admitted in evidence under sections 114 (1)(d) and 116 (2)(e) of the Criminal Justice act 2003. Tyrone also said that he had seen the appellants previously and to that extent was recognising each although was unable to put a name to either. He said he had seen Labastide before on more than six occasions. He said he had seen Carty a couple of times in Harlesden, at dancing and parties.[7]There was mobile phone cell site evidence which amounted to some association between phones attributed to the appellants and use in the general area but the highest the Crown could put this was that it was not inconsistent with the appellants’ presence at the scene of the shooting at the material time[8]There was no forensic evidence which linked the appellants to the scene or the shooting. A loaded hand gun GEO/13 and silencer was recovered from the scene together with fired cartridges, bullets and firearms discharge residue. The ballistic evidence concerned primarily the number of firearms discharged and the residue. Four different types of residue were found, Types 1,2 and 3 were consistent with the ammunition and findings from the barrel of the recovered gun. Type 2 was consistent with Mach 10 type ammunition recovered. The Type 4 residue however was consistent with none of the ammunition recovered although residue of this type was found on a recovered bandana and on the clothing of both the deceased and Tyrone Subaran. The totality of the material recovered demonstrated the presence of a minimum of four and a maximum of 6 weapons. The minimum number of shots fired was six and the maximum could have been nine.[9]Both the recovered gun and silencer had blood linking them to Shane Taylor. It was considered that at some time three rounds had been fired from this gun, although the only bullet recovered from the scene which had been fired from it was the bullet which remained lodged in the deceased. Two shots had been fired at the deceased from a distance of no more than 2 – 3metres, probably closer.[10]The jury also heard evidence read from the statement of Amy Reading that a black handgun gun was found underneath the deceased when he collapsed which was taken from the scene by a person unknown. Two rounds of ammunition were also found in the deceased’s car but neither was test fired for firearm discharge residue analysis. The two rounds were different. They were suitable for use in the recovered weapon but the projectile was different from that in relation to the deceased’s body.[11]Other eye witness accounts of events in the park which did not in themselves incriminate the appellants were read to the jury. These witnesses differed as to the number of shots fired.[12]Neither appellant gave evidence at the trial.[13]When interviewed following his arrest on 22nd November 2004 Labastide made no comment as a result of advice given. The case put on his behalf to the jury at the trial was that they could not be sure he was in the park. There was a general attack on the credibility of both Tyrone and Sabrina.[14]Carty relied upon the answers given in interview in which he denied having any gun or taking part in a shooting . He had been at the carnival where he met a couple of girls and had been in the vicinity of the park when he heard that someone had been shot and so he had run with the crowd. In interview Carty denied knowing Labastide and Smith and claimed that Sabrina had lied about him on the basis she was an ex girlfriend. His case in respect of the two identifying witnesses was that Tyrone was mistaken whereas Sabrina had fabricated her evidence being a woman scorned.[15]We turn to the identification evidence of Tyrone and Sabrina in a little more detail, bearing in mind the submission made on behalf of Carty that, as far as he is concerned, there was a fundamental difference – Mr Trembath QC would say fundamental contradiction – between the two in that Tyrone placed Carty as involved in the shooting, known as scene 1, whereas Sabrina had him present only at what became known as scene 2, namely the park entrance to which the deceased scrambled after the shooting before collapsing.[16]Tyrone described the events which led up to him and others going to the park where people were talking and dancing to music. Three black men approached. One was Smith. They looked at the witness and his group, then walked off. He saw the same three return a few minutes later with a group numbering about 13 or more. He recognised them as the “ Mus Luv Crew”. There was an exchange of words with the deceased about being “ dissed”. Then Leon Roberts ( convicted at the first trial) pulled out a gun and fired it at the deceased’s face. The deceased had moved his head. Two others had pulled guns Another man whom Tyrone subsequently identified as Tunde Thomas (acquitted in the first trial) pulled a gun which Tyrone had grabbed and which fell to the ground and went off. Whilst Tyrone was down he saw two more men with different guns which were fired at the deceased about 6-8 feet away. He saw the deceased stagger but carried on towards the road. Tyrone was terrified and ran in the same direction. He thought he heard about 7 more shots. Having run away he turned back to find his brother collapsed but did not see a gun under his body. He expressly denied that the deceased had a gun that night but did say that in Jamaica everyone carried one. He thought in all three guns were fired at his brother but did not know if any other guns were fired. However he heard a lot of other shots and thought there must have been 6 or 7 guns being shot at the crowd as well as his brother. He accepted he had given varying accounts of the number of guns fired but denied he had tailored his evidence to fit the ballistic evidence.[17]As to identification Tyrone described the lighting as “ alright”: it came from street lamps and a public house and was somewhere in betweenpitch black and broad daylight . He ultimately settled for “darkish”.[18]At an identification parade on 7th of January 2005 Tyrone identified Labastide as one of the group carrying an automatic gun but could not say if he saw him fire it, although at the first trial he said Labastide had fired it directly at him and into the crowd. Labastide had been in front of him. He accepted he had not previously mentioned in evidence a man standing in this position. He disagreed that he had lied about his identification because he had failed to save his brother and nor was he attempting to shore up the evidence of Sabrina. Sabrina was a friend but not a close friend. He knew that she knew all the members of the “ Mus Love Crew”. He agreed he had not originally provided a description of Labastide and that at the time of identification he had said Labastide was in the second group.[19]In relation to Carty, Tyrone identified him at a separate parade in March 2006 as having been there in the group and carrying a gun but he could not say whether he fired it. He was beside and behind a person in front but his view was not blocked. He was about an arm and a half away. He denied there was any possibility of a mistake.[20]Sabrina Blackburn said that she had assisted the police despite the fact her family disapproved and was hoping to gain some advantage for herself, she conceding that she regularly dealt in drugs .She confirmed she was only a friend of Tyrone and he was not aware of what she and her brother were doing that night in relation to drug supply. Her account was that 6 or 7 men came along and that was when it all happened. She had been reluctant to name all those she recognised. The deceased was challenged about the way he was holding his hands. She then went to calm things down but did not get the chance because the “Mus Luv” group started shouting. She saw Leon, Connors (Smith), Hypo (Taylor) and others, whose names she did not know, each with a gun. She was only some 5 or 6 feet away. Leon pulled out a black automatic and he shot at the deceased. She heard people say Hypo had shot Gangster. When she went back and saw the deceased on the ground it was then she saw Hypo with a gun. She had not seen Tyrone wrestle with anyone. After the shooting the deceased ran passed her and the gang chased him. She followed, found her boyfriend, then returned to where the deceased was on the ground. J View (Labastide) Hypo and Labba (Carty) then came over. Each of them took out a gun and she thought they were going to shoot the boyfriend. They looked at the deceased on the ground. She heard Carty say to the other two that they should go because the police were coming.[21]In her original statement Sabrina had put Labastide at the scene one shooting but in her evidence in chief she said she was not sure whether she had seen him there. He had however had a gun when he approached the deceased at the park entrance. She identified him at a parade held two months later. She accepted that there were 14 occasions when there was contact with her handler before, in November 2004, she gave information connecting him to the shooting. She had made a number of witness statements but she denied the suggestion that she added other names because she thought she should give the inquiry team more names than she had given her handler.[22]Under cross examination from Mr Trembath on behalf of Carty she agreed that, “seeing what she saw”, Carty was not involved in the shooting of the deceased but had come over to the deceased’s body at the park entrance with Labastide. She had declined to attend a parade in respect of Carty because “ I thought that as Labba wasn’t one of those who shot Gangster ... going on a parade wasn’t worth doing”. She agreed that she had not given Carty’s name or nickname to her handler in her contacts in 2004 because, based on what she had seen, he was not involved in the shooting. She said she thought Carty had a gun and had grabbed hold of him with it, although she was cross examined over whether she might have been mistaken. The grounds of appeal.[23]Leave to appeal has been granted to Labastide on one ground and to Carty on two.[24]In the case of Labastide the single ground relates to the ruling of the Judge refusing the application made on his behalf by Mr Turner QC that he be allowed to introduce evidence through his questioning of the officer in charge of the case that Shane Taylor, convicted at the first trial although not a witness in the re-trial, was found when he first came to the attention of the police in late September 2004 to have a healing head injury, and further that blood stained jeans had been found in Taylor’s car. The purpose of this evidence was said to be to be to give support to a submission to be made to the jury that the injury could have been caused by the firing of a gun at the murder scene by the deceased under whose body a gun was seen although not recovered, or by Tyrone, and which would account for the Type 4 residue found at the scene and on the clothing of both the deceased and Tyrone and on the bandana. It is submitted that if the jury had accepted this to be the case then this would potentially have had an effect on their assessment of the credibility of the two crucial eye witnesses, Tyrone and Sabrina, each of whom denied the deceased had a gun, and would also go to undermine Tyrone’s evidence that this appellant had been in possession of a gun. It is said to undermine the Crown’s suggestion that the unaccounted for type 4 residue was indicative of a fourth gun in the hands of one of the attackers and of Labastide in particular. In support of the relevance of the evidence, it is prayed in aid that the evidence had been introduced without objection from the Crown at the first trial at which the jury were unable to agree a verdict on this appellant. However, at the retrial the Judge refused the application on the grounds that the evidence sought to be introduced for this purpose was irrelevant, potentially misleading and invited the jury to speculate. The ground of appeal is that he was wrong to do so.[25]In the case of Carty the two grounds go to the quality of the identification evidence. The first is that the Judge was wrong to reject the submission made at the close of the prosecution case that the quality of that evidence was so poor being both inherently weak and mutually contradictory that the case should be withdrawn fromthe jury both under the second limb in Galbraith and the guidance given in Turnbull. The second relates to the directions given to the jury that the evidence of each of the two eye witnesses, if the jury were satisfied as to one, could be mutually supportive of the other. The submission is made that this was a misdirection in the particular circumstances of this case where it is submitted the evidence was fundamentally contradictory in putting the appellant at different parts of the event and at different times.[26]We turn to consider these separate grounds.

Labastide

[27]As will be evident from our summary of the facts, the broad background against which Mr. Turner made the application to ask the officer about Shane Taylor’s head injury was as follows:-(1) Taylor shot Mark Subaran in the neck using the pistol & silencer (Exhibits GEO/13 & GEO/14). The bullet was later found still lodged in Mark Subaran’s body.(2) Taylor then abandoned the pistol & silencer in the park, and made good his escape.(3) The pistol & silencer were recovered by the police, who also found a total of 7 fired cartridge cases at the scene, along with a fired bullet, and a bandana with an apparent bullet hole in it.(4) The witness Amy Reading had seen a handgun underneath Mark Subaran after he collapsed. The gun was taken away by a person unknown, and was never recovered.(5) Two rounds of ammunition were found in the car that Mark Subaran had used to drive to the scene. These rounds were different to each other, although both were reloads. They were never test fired.(6) Scientific examination showed, amongst other things, that:- (a) Taylor’s DNA was present, in blood, on both the recovered pistol and the silencer. (b) A total of at least four guns (the recovered pistol, a Glock or Sigma self-loading pistol, a MAC 10 type sub-machine gun and another handgun) had been fired at the scene, although it could have been as many as six. (c) 2 of the 7 cartridge cases found at the scene had been fired in the recovered pistol. (d) There were four types of firearms residue at the scene. Type 4 was not consistent with the recovered pistol and silencer, nor with any of the cartridge cases, nor the bullet, recovered at the scene. (e) Type 4 particles were however found around the apparent bullet hole in the recovered bandana, along with Type 2 particles. In addition, particles of Type 4 were found in the front and back pockets of Tyrone Subaran’s jeans, and a single particle was found on the back of Mark Subaran’s shirt. (f) The particles found in relation to the Subaran brothers could, in each case, have resulted from them being close to a gun when it was fired.(7) Taylor was first spoken to by DI Horsley, in passing, on 22nd September 2004 (over three weeks after the fatal events). The officer noted that he had a “nasty graze” to the right side of his forehead, about an inch in diameter, with a scab.(8) Taylor was arrested on 30th September 2004 (over four weeks after the fatal events). He was examined by a Forensic Medical Examiner, who noted that he had an old scar on his right forehead, about 3cms in diameter. He was photographed. In addition, jeans with some small blood spots on them were recovered from his car. The blood was later shown to be his own.(9) Tyrone Subaran’s evidence about Taylor, at the first trial, was that after he (Tyrone) had struggled with the first armed attacker, during the course of which that attacker’s gun may have been discharged, Taylor was one of those who had then fired at his brother Mark (at scene 1).(10) Taylor’s defence, and evidence, was that he had been in the vicinity, heard shots, had gone towards the scene, and had been confronted by Tyrone Subaran, who was armed with the recovered pistol & silencer, and had struggled with him. During the struggle, the pistol had been discharged and the bullet had grazed his forehead, causing it to bleed. He had eventually disarmed Tyrone Subaran, and had then put the gun down elsewhere in the park for safety, after which he had left the scene. The blood on the gun & silencer must have come from the graze to his forehead, which had bled.(11) The Crown’s case against Taylor at the first trial was, simply, that he had used the recovered pistol and silencer to shoot Mark Subaran, and that he had hit him in the neck with one of the shots that he had fired. In cross-examination, unsurprisingly, given the finding of Taylor’s blood on the pistol and silencer, the Crown did not dispute that he was injured at the time. It was their case that this may, for instance, have been as a result of a stray bullet, not any struggle with Tyrone Subaran. It is clear that no specific concession was made that Taylor had the head injury at the time, nor that it necessarily resulted from a bullet. On the contrary, the general thrust of the Crown’s position was that Taylor’s whole account was invented in order to avoid conviction.(12) Taylor was convicted.(13) Labastide’s defence at the first trial was alibi – albeit that he did not give evidence. There was no cross-examination of Taylor on his behalf as to the fatal events.(14) Tyrone Subaran gave evidence about Labastide at both trials. Sabrina Blackburn’s statements and interviews were put in evidence at the first trial, but she gave evidence at the second trial . The thrust of their evidence, and of cross-examination, is set out in paragraphs 16-21 above.(15) Labastide’s case at the second trial was, again, alibi. It was, however, suggested on his behalf that there were never more than three attackers with three guns.(16) During cross-examination of Mr Painter (the Crown’s discharge residue expert), after he had been recalled to deal with a jury question, Mr. Turner asked him a question to the effect of whether he had been informed that Taylor had potentially been injured by a bullet, and bled as a result, during the fatal events. Mr. Painter said that he had not.(17) Mr Boyce QC did not object to this question at the time. However, he made absolutely clear subsequently that he had been slow to react, and should have been on his feet objecting.(18) At the time of the application, the jury was not aware that Shane Taylor had been convicted at the first trial – albeit the Crown’s evidence had already made clear that he was one of those involved. The conviction was later the subject of an admission.[28]In making the application to ask the officer about the existence of the head injury on 22nd September 2004 (and the bloodied jeans found on 30th September 2004), Mr. Turner submitted that such questioning was relevant to two issues, namely :- i) Taylor’s guilt. ii) The injury would also be consistent with having been caused by the firing of a gun in the hands of Mark or Tyrone Subaran. This would potentially explain the presence of Type 4 residue at the scene, and demonstrate that it was not therefore indicative of a fourth gun in the hands of the attackers at all, but rather would be consistent with the defence suggestion that there were three attackers with three guns. If that suggestion was right, Labastide would be excluded from having a gun, which in turn would have a detrimental effect on the credibility of Tyrone Subaran & Sabrina Blackburn.[29]Mr. Boyce submitted that any evidence from the officer about the head injury could only lead to impermissible, and probably misleading, speculation as to how the injury came about – given that there was no evidence when the injury had been caused, or how, let alone that it had anything to do with the fatal events. He suggested that it was for the defence to call Taylor if they wished to pursue the suggestion being made. He further submitted that the evidence already established, by a permissible route (the combination of Amy Reading and the discharge residue evidence), the possibility that the gun seen under Mark Subaran might be the source of the type 4 residue.[30]In reply, Mr Turner relied upon the Crown’s approach to Taylor’s evidence during the first trial. He repeated his contention that the evidence of the injury to Taylor’s forehead provided evidence that a gun in the hands of either Mark or Tyrone Subaran had been fired during the fatal events.[31]In refusing the application,

the Judge said :

“In my judgement, the defence must be in a position to put their case in its best possible light, but on the basis of properly admissible evidence, relevant and probative evidence. In the case of these pieces of evidence they are, in my judgement, potentially misleading, they do invite the jury to speculate and, moreover, I have well in mind that in my judgement they are unnecessary for the defence of Jermaine Labastide to be put in its best possible light. In those circumstances, I rule against the defence.”
[32]Before us, and given the subsequent admission at trial about Shane Taylor’s conviction, the argument has concentrated on the second of the two issues originally raised by Mr Turner, namely the head injury being consistent with the firing of a gun by either Mark or Tyrone Subaran. As the arguments on both sides were much the same as they were before the Judge, it is unnecessary to rehearse them again.[33]Although Taylor must, by inference, have been bleeding from somewhere by the end of his part in the fatal events, analysis of the background to the application, as set out above, shows that there was simply no evidence, direct or indirect, to show, or from which to infer, that the injury first seen on his forehead over three weeks after the fatal events had anything to do with those events at all, let alone that the injury was caused by a bullet, let alone a bullet fired from a gun held by Mark or Tyrone Subaran, let alone the gun seen by Amy Reading. Equally, nothing the Crown had done in responding to Taylor’s defence in the first trial bound them to make any concession beyond the admissible evidence in Labastide’s second trial. In any event, the scientific evidence established the possibility of six guns in all being fired, not just four - thereby demonstrating the difficulty in any suggestion that there were only ever three guns in the hands of the attackers.[34]At one point during the course of argument, Mr. Turner submitted that the proposition that he should call Taylor, if he wanted to establish admissible evidence of when and how the injury was caused, was ludicrous. He would, he submitted, be calling someone who, whilst stating that the injury did arise during the fatal events, would nevertheless (contrary to the purpose of calling him) go on to say that the weapon that had caused it was the recovered pistol and silencer fired during the course of a struggle with Tyrone Subaran (rather than by either of the Subaran brothers firing another weapon). The witness would then be cross-examined to great effect by the Crown. No doubt, from a tactical point of view, it would have been extremely unwise to call Taylor. However, that is not the issue here. A tactical problem about calling worthless, and ultimately damaging, evidence cannot be overcome by inviting the jury to indulge in favourable, but impermissible, speculation instead.[35]If nothing else, Taylor’s evidence at the first trial provides an example of how many different scenarios (short of the conclusion sought by Labastide) it would be possible to conjure up from the speculative threads of the head injury and the blood on the jeans, even if one got to the stage of speculating that the injury had actually been caused at the scene.[36]Mr Turner’s final submission was to remind us that in the first trial the jury was aware of Taylor’s head injury, and of what he said about it. In that trial they disagreed about Labastide. In the second trial, when they did not know about the injury to Taylor’s head, they convicted him. He submits that this shows how important the head injury evidence was. We are not impressed by this point. It ignores, for example, the fact that (in contrast to the first trial) Sabrina Blackburn gave live evidence in the second trial.[37]In the end, it is clear that the injury to the head, and the blood on the jeans, were being put forward as being admissible so that they could be used as the basis of a wholly speculative, and thus impermissible, exercise. In our view the learned judge was obviously right to rule as he did. There is simply no merit in this ground.

Carty

[38]At the end of the prosecution case, Mr Trembath made a submission of no case to answer on behalf of Carty but it was rejected by the judge in a somewhat laconic ruling. Then and now, Mr Trembath seeks to rely on the well-known passages in Galbraith 73 Cr. App. R 124 and Turnbull 63 Cr. App. R 132. The second limb of Galbraith applies to a case “where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.”[39]The submission is that this is such a case in view of the shortcomings of the identification evidence which, taken at its highest, is such that a jury, properly directed, could not properly convict on it. In Turnbull, the relevant passage is:
“When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.”
(p.230)[40]In order to address the Galbraith/Turnbull submission it is necessary to consider the criticism of the evidence advanced by Mr Trembath. We take the two identifying witnesses in turn. (1). Tyrone Subaran[41]Tyrone identified Carty as one of those beside and behind the front group when the initial shots were fired. He said that Carty was carrying a gun but he could not say whether he fired it. Mr Trembath draws attention to these features. First, the identification was not made until March 2006, some nineteen months after the murder, in circumstances where Tyrone had not given a “first description” of the person in question at an earlier stage. Secondly, Tyrone’s powers of identification are known to be imperfect because he had purported to identify Tunde Thomas but his evidence had not been accepted by the jury at the first trial. Thirdly, his evidence of Carty being present and armed at the initial stage when the first shots were fired is not supported by Sabrina Blackburn who must have been alongside him at that time. She only mentioned Carty in the context of scene 2. Fourthly, the judge was wrong to take the view (expressed only in the summing up but no doubt also part of his thinking when he rejected the submission of no case to answer) that the evidence of Tyrone about Carty amounted to recognition, rather than mere identification.[42]We accept that the first three of these criticisms are points which can fairly and properly be made about Tyrone’s evidence. However, in our judgment they are not such that, when considered separately or cumulatively, the judge ought not to have left the evidence to the jury. The delay of nineteen months and the lack of a “first description” have to be seen in the context of Tyrone’s evidence as a whole. In this context – and this brings the fourth of Mr Trembath’s criticisms into the equation – it is important to have regard to his evidence of his previous knowledge of Carty. That evidence was as follows:
“A. … these guys that I picked out, I see them a couple of times in Harlesden, not for just a second or five minutes, I see them like half an hour about … Q. … Was he just walking about? A. He was like certain place I was he was there as well. Q. All right. A. Parties and those things. Judge Kramer: Sorry. A Dance and parties and those things … Judge Kramer: Dancing and parties. That is where you had seen him? A. Yeah.”
Q. … Was he just walking about? A Dance and parties and those things … A. Yeah.”

A Dance and parties and those things …

[43]Thus, the evidence was not that Tyrone had such limited familiarity with Carty, as to make them (in Mr Trembath’s words to the jury) “virtual strangers”. It was that Tyrone had seen Carty on a number of occasions and for not insignificant periods of time. Accordingly, we do not consider that the categorisation of the evidence as “recognition” was inappropriate. It was not a “fleeting glance” case and, although the lighting cannot be said to have been good, it was sufficient. We attach no significance to the fact that the jury at the first trial acquitted Tunde Thomas. A comparison between the evidence of Tyrone about Thomas and his evidence about Carty discloses the important difference that, whilst he expressly admitted to a degree of doubt about his identification of Thomas, he had no such lack of confidence in his identification of Carty. These respective passages suggest to us that, as Mr Boyce submits, Tyrone was a careful witness. That, of course, does not ensure the correctness of his identification but it tends to support its aptness for consideration by the jury.[44]Nor do we find there to be material significance in the fact that Sabrina’s evidence does not implicate Carty at scene 1. This was an unexpected, fluid and fast-moving incident and it is not at all unusual to find that different witnesses, concentrating on different things, from slightly different vantage points, see and remember different things. In summary, we consider that Tyrone’s evidence about Carty was suitable for consideration by the jury. Moreover, there was cogent evidence that the murder was carried out by members of the “Mus Luv Crew” and that, at the time, Carty was such a person. (2). Sabrina Blackburn[45]The position of Sabina vis-à-vis Carty was very different. In her case, there was no question of mistake. After all, she had been Carty’s girlfriend for a significant period of time. His case was that her identification of him was malicious and mendacious. Mr Trembath advances four main points about her evidence. The first two – that she did not see him at scene 1 and made no reference to his presence even at scene 2 on at least fourteen occasions when she was speaking to the police in her capacity as an informant – are quintessentially jury points. On any basis, she is a flawed individual but that does not axiomatically render her evidence incredible or unreliable. The third criticism is that, by two answers given in cross-examination, she effectively exculpated Carty. The questions and answers were as follows:
“Q. Am I right to suggest to you that … , seeing what you saw, you know that … Carty was not in any way involved in shooting Mark Subaran? A. Yeah. Q. Yes. And we know, for the sake of completeness, that you made a witness statement on 8 November 2004 and you have made witness statements subsequent to that date, well, one on the same day, i.e. two statements on 8 November, and then statements after that dealing with the descriptions and so on. Now, you have just agreed with me that so far as you are concerned, … Carty … was in no way responsible for shooting Mark Subaran. A. Yeah.”
[46]However, it is clear to us that, considered in the context of her evidence as a whole, that passage exculpates Carty from having fired a gun at scene 1, but it did not have the meaning, nor was it intended to convey the impression, that her evidence of Carty’s involvement with Taylor and Labastide (including the drawing of guns) at scene 2 was being resiled from or qualified. She did not change that evidence, or her evidence that Carty was a “Mus Luv” member, or that it was Carty who had said that they should go because the police were coming.[47]Mr Trembath’s final point is to draw attention to the inconsistency between the evidence of Sabrina and that of Amy Reading, whose statement was read to the jury for the reason we have mentioned. The potential importance of this evidence was greater in relation to Labastide and scene 1 than in relation to Carty at scene 2 and we have already dealt with it in that context. However, Mr Trembath submits that it also weakens her identification of Carty at scene 2 because it generally undermines the credibility of Sabrina as a witness. In our judgment, this point, and the other criticisms of Sabrina’s identification of Carty at scene 2 are no more than jury points. The judge was plainly correct to see them as such and to reject the submission of no case to answer.

Misdirection

[48]Having concluded that there was sufficient evidence to leave the case against Carty to the jury on a joint enterprise basis, we next turn to the question whether the summing up contained a misdirection such as to render Carty’s conviction unsafe. The second ground of his appeal is that the judge was wrong to direct the jury that the evidence of Tyrone Subaran and Sabrina Blackburn might be mutually supportive. The direction, which followed and was supplementary to a faultless Turnbull direction, was in these terms:
“You are entitled to act upon the evidence of either Tyrone or Sabrina as to identification individually. If you find that the evidence you are considering makes you sure that his identification of a particular defendant, that is to say Tyrone’s identification, or her identification of a particular defendant, that is to say Sabrina’s identification, is correct, you are also entitled to treat the evidence of Sabrina as supporting that of Tyrone with respect to an individual defendant, provided that you are sure that her evidence as to the correctness of her identification of a particular defendant is truthful. The same applies in reverse, that is you are entitled to treat the evidence of Tyrone with respect to his identification of a particular defendant as supporting that of Sabrina, again provided that you are sure that his evidence as to the correctness of that identification is truthful and reliable. You should look with great care at any inconsistencies in the identification evidence of either or both of these two witnesses before you treat the evidence of identification of either of them as supporting the identification evidence of the other.”
[49]It is apparent from the next passage that the judge was using the word “inconsistencies” so as to embrace “weaknesses” in a wider sense.[50]Mr Trembath’s submission is not that this direction was inherently erroneous; it is that such a direction, whilst a commonplace, should not have been given in the circumstances of this case. He seeks to support the submission by reference to the criticisms of the evidence of both witnesses to which we have referred, but which we have rejected. He also seeks to distinguish between scene 1 and scene 2 in support of a submission that there was a temporal and spatial difference such as to militate against mutual support. He submits that at one point in the summing up

the judge wrongly elided scene 1 and scene 2 when he said of Sabrina’s description of scene 2:

“That, you may think, must have been seconds after the shooting itself … you may want to ask yourself how realistic it is on the facts of this case to divorce the shooting, what has been called scene 1, from the incident by the exit to the park that has been called scene 2.” (Emphasis added)
[51]The submission is that, on the evidence (including Sabrina’s account), the suggestion of “seconds” was an understatement which implied an elision or at least shortening of the time scale and that the reality was a separation in time and place which rendered mutual support inappropriate.[52]Even if the word “seconds” implied a shorter timescale than the evidence suggested, we do not consider the way in which Mr Trembath seeks to utilise it is tenable. On any view the timescale was short and the events were parts of a continuum. The armed men at both places were members of the “Mus Luv Crew”. There was an overlap in those active at the two places. The case was put on a joint enterprise basis from beginning to end. Moreover, the case for Carty, who did not give evidence but answered questions in interview, was that he was not present at scene 1 or scene 2; that, although he had been in the vicinity following the Carnival, he did not know Labastide or Smith; and that Sabrina was lying about his involvement at scene 2. It seems to us that, leaving aside for the moment the judge’s reference to “seconds”, his suggestion to the jury about the reality of the situation was entirely permissible. Does the understatement of “seconds” compel a different conclusion? In our judgment, it does not. Mutual support remained a matter of potential importance. Moreover, the reference to “seconds” was not made in the context of the direction on mutual support but was a comment made within the judge’s review of Sabrina’s evidence. A few pages later, the judge provided a detailed account of Sabrina’s evidence which was consistent with the passage of time for which Mr Trembath contends. We consider that the judge was right to give a direction on the possibility of mutual support and that the one he gave was careful and appropriate. The shortcomings in the identification evidence were matters for consideration by the jury who had to take care that they were sure about the identification by each witness. Once they were sure about the evidence of one, it was properly open to them to find in the evidence of that witness support for the other. We are wholly unimpressed by the suggestion that by referring to “seconds” the judge forged a basis for mutual support which did not otherwise exist. The basis existed in the evidence and the reference to “seconds” in a later part of the summing up did nothing to undermine or infect the appropriateness of the direction. We reject the submission of misdirection.

Conclusion

[53]It follows from what we have said that we consider the convictions of Labastide and Carty to be safe and we dismiss their appeals. They were convicted on a joint enterprise basis and upon identification evidence that was properly received and which merited consideration by the jury, who were given proper directions by the judge as to how they should approach it. Moreover, there was no error on the part of the judge in relation to his ruling about Taylor’s head injury.