Nelson, R. v [2009] EWCA Crim 1600

[2009] EWCA Crim 1600Case No 2006/1406/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 16 July 2009
Strand
London, WC2A 2LL
B e f o r e:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MRS JUSTICE RAFFERTY DBE
MRS JUSTICE SLADE DBE
Between
R E G I N ACrownv
Between
GARY NELSON
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Ryder QC and Mr W Evans appeared for AppellantMr J Rees and Mr Q Hawkins appeared for Crown
J U D G M E N T
[1]THE VICE PRESIDENT: The appellant was convicted of a double murder by shooting. On this appeal his contention is that the trial judge fell into error in admitting the evidence of a statement of a woman who refused to take the oath. The judge had determined, after seeing and hearing her, that the reason she refused was that she was in fear. The appellant contends that there was no proper basis for that conclusion and that the judge was not fully informed of material germane to it.[2]The trial took place in January 2006, but it related to murders which had been committed 12 years earlier on 20th October 1993. One of the victims was a man called Danso. He worked in various places as a security guard or, in the vernacular, a 'bouncer'. One of the places was a nightclub called The Academy in Brixton. Another was a mobile telephone shop/car repair business in Streatham called Street Communications.[3]During the afternoon of 20th October 1993, the day of the shooting, Danso broke up a fight in the latter shop between a man called Francis and someone else known as 'Blue'. Francis was a friend of this appellant and during the altercation he summoned the appellant by telephone to the scene. Eventually Francis was held back by Danso whilst Blue left. The appellant arrived at or around the end of this incident and set off together with Francis. Not long afterwards Francis telephoned the shop to ask for Danso's address. During the altercation Francis had been in possession of a baseball bat.[4]Later the same evening, at about 9.10 pm, three men called at the flat where Danso lived in Clapham. When Danso answered the door he was shot dead as he stood there. Six bullets hit him.[5]As it chanced, at a house on the other side of the street, Police Constable Dunne was attending to the report of a minor incident. When he heard the shots, as a dutiful policeman he went to the door of the house that he was visiting. He was in full uniform with a bright yellow fluorescent jacket and unmistakeably a policeman. When he opened the door he too was gunned down by the three men. The three of them ran off, laughing.[6]In these two murders two handguns had been used, one a Browning and the other a Tanfoglio. The three men also had a baseball bat with them.[7]This appellant was arrested about a month after the murders. At that stage there was insufficient evidence to proceed. He was released but he was told that proceedings would be re-instituted if further evidence became available. It did. It did over some several years between 1993 and 2002. In due course in 2004, at a time when he was in prison for something else, he was re-arrested for these murders.[8]The case against him, other than the hearsay evidence which gives rise to this appeal, needs to be set out at least in outline.a. A. There had been a heated incident at The Academy nightclub between Danso and the appellant when Danso had refused the appellant admission. That, together with the fight at the telephone shop in which Danso had been set against the appellant's friend Francis, tended at least to show antagonism between the appellant (and no doubt Francis) on the one hand and Danso on the other. There also seems to have been evidence that the appellant had lost the contract for the security work at this club to Danso.b. B. A black BMW was seen leaving the scene of the murders at speed. It contained either two or three men. Part of the personalised numberplate was noted by a witness as either 8 or 9 MOB. The appellant had the use of a black BMW, full numberplate A9 MOB at the material time, although he was not its registered owner. The registered owner was a man called Watts. The appellant was seen driving this vehicle on two occasions in November.c. C. A mobile telephone with a number ending 947 was shown to be used by the appellant. It was used about 13 minutes before the murders and at that time was in the area of Danso's house in Clapham. A call was made from it to Watts, who was the registered keeper of the BMW.d. D. A man called Djaba worked at the telephone shop and had been present at the afternoon incident there. He gave evidence that the appellant and Francis had both been held back by Danso and that they had set off apparently in pursuit of Blue at the end of the incident. There was other evidence that shortly afterwards the appellant and Francis had been seen in the company of a third man. Djaba said, as did others, that after the murders neither the appellant nor Francis came into the shop, although they had previously been habitués of it. Djaba further said that he had been telephoned twice by the appellant a few days after the murders. In this respect Djaba's evidence was corroborated by telephone records. His evidence, if the jury accepted it, was that in those calls he was threatened by the appellant with retribution for having made a statement to the police.e. E. On his arrest a month after the murders the appellant had firearms residue on his clothing of the kind which would be generated by the ammunition used in these murders. It was not of course unique but it was the right kind.f. F. Whilst under arrest at that time the appellant became annoyed with the police who were dealing with him. He told the sergeant that the sergeant should watch himself and that, "You'll cop it like the other one fucking copped it". That was agreed. The following morning he also said, if the jury accepted the evidence of the police officers, that "I'll take one of you out again."g. G. On 6th June 1994, eight months after the killings, the Browning and Tanfoglio guns which had been used in the murders, together with unused ammunition, were found buried in a cemetery more or less at the end of the road where the appellant lived with his family. The guns were shown by ballistics to be the guns that had been used in the murders. The guns were each contained in a red complimentary bag issued by Virgin Atlantic Airways to passengers. The appellant's mother had flown with the airline in September 1993 and another similar bag was found at the house where she lived with the appellant. These Virgin bags were in turn contained in Bally shoe bags. There were six pairs of Bally shoes in the appellant's house. On the bag containing the Tanfoglio were the fingerprints of the appellant's mother. So the murder weapons were plainly linked to his home, were buried in material which had come from his home and were buried not far away from it.h. H. At the home of Watts, who was the associate of the appellant who kept the BMW which had been seen at the scene of the shooting, there was found a cartridge which had been fired from one of the murder weapons, the Browning.i. I. The man Djaba and a different security guard called Rambo gave evidence that the day before the murders the appellant had had a row with Rambo at the telephone shop. If the jury accepted the evidence of Djaba, the appellant had on that occasion spoken to him about shooting Rambo and had produced a handgun, boasting that it could take a magazine of 20. Subsequently, Djaba was shown an array of guns which included a Tanfoglio, as used in the murder, and he identified the weapon as the type of gun he had seen. It was capable of holding up to 25 rounds in its magazine.j. J. There was an indirect and arguably rather remote connection between the appellant on the one hand and on the other a gun dealer called 'Wink' who was shown to have had dealings with the Tanfoglio gun used because his punch had superimposed a false number on the barrel. Both 'Wink' and the appellant had the telephone number of a man called Sheiman. The appellant had written beside Sheiman's details the abbreviation "GU" which the Crown suggested might stand for gun or guns. No alternative explanation for the abbreviation was ever advanced.k. K. A prisoner called Stokes gave evidence that when in prison for other offences in 1994 the appellant had boasted to him of having killed the policeman, Constable Dunne, and having as a result a large reward on his head. There was a reward on public offer.l. L. The appellant was a known gunman. He had been convicted of firing a gun in the street at another motorist with whom he had lost his temper. Three shots had hit the other man's van. That had been in September 1993 about six weeks before the murders. Subsequently, in February 2003 he had been found in possession at his flat of a fully loaded Browning handgun, 23 rounds of ammunition for it, and in addition a removable gun grip and a stun gun. It was for these offences that he was serving a life sentence when re-arrested for these murders in October 2004.[9]A large part of the evidence which we have outlined was not in dispute, although its implications of course were the subject of argument. There was challenge to the evidence of Djaba from the telephone shop and Stokes (the cell confession witness). There were grounds for impugning the reliability of both those men. Djaba was at the time of the trial in Ghana having absconded during his own trial for fraud on the Revenue. The evidence he gave about his own offending and his own movements was highly unsatisfactory and was likely to have been regarded by the jury as untruthful. Stokes was a convict who was in prison for stealing a large sum which he was supposed to be guarding, although he had, it seems, volunteered a confession to having done so. In his case there was at least the possibility that he had been motivated by hope of reward. In the end, whether they were truthful about the appellant or not was for the jury to decide. Counsel on Mr Nelson's behalf undoubtedly made significant progress with both of them. There was, however, a strong circumstantial case without them and if their evidence was accepted it was significantly reinforced.[10]The appellant elected neither to give nor to call any evidence at all. He disputed the murders. He also disputed the February 2003 offences for which he seems to have said out of court that he had been framed by the police. As to the present murders, his case, as advanced through counsel, without support of evidence, was that he must be being framed by somebody unknown.[11]The hearsay evidence which is at the centre of this appeal related to the finding of the buried guns in the cemetery. In the spring of 1994 a then anonymous witness had telephoned the police through the confidential Crimestoppers number and suggested that the guns would be found in the cemetery. The caller, a woman, had given at that stage no detail or precise location. The same caller made subsequent calls to Crimestoppers and in due course was asked if it were possible to mark the general spot. A subsequent search was made of a place just inside the cemetery wall aided by some lipstick marks recently placed on that wall and the guns were found buried fairly close to the mark. That was on 6th June 1994.[12]In due course the police were able to trace the caller, aided in part by DNA analysis of the lipstick on the wall. She was a woman called Sandra Frances. When she was identified in 1996 she refused to make any witness statement and there is no doubt that the reason she did was fear of consequences at the hands of the appellant or someone acting in his interests.[13]She was seen again in 2002. Initially she took the same stance. Eventually, however, in March of 2003 she did make a witness statement. In it she gave this account. Some time after the murders, at a time when the appellant was in custody, she had been in the company of his aunt who was a longstanding friend. There were also some other women including the appellant's then girlfriend. Also present in the house was the appellant's mother. The aunt had asked the company to help her recover something from a cemetery - said at that stage, according to Frances, to be money. An expedition had been mounted late at night and Miss Frances had, with others, climbed into the cemetery over the railings on the top of the wall (later marked with the lipstick) whilst the aunt waited outside. They had however, she said, failed to locate whatever was sought. Subsequently, her account ran, she had guessed it was a gun and had made the telephone calls to Crimestoppers which we have already outlined. Later, she added that on this or perhaps a different occasion the appellant's mother had retrieved from his room a piece of paper which the aunt had taken to the cemetery and which Frances understood to contain either instructions or a map.[14]It is plain that Miss Frances made these statements with no little reluctance. From the time she made it she became part of the Witness Protection Scheme operated by the Metropolitan Police. The implications of that ought not to be understated. This was a woman with four children (two teenage and two pre-teenage) and a mother living either with her or nearby. She lived all her life in South London and did not want to move. The consequence of the protection which it was necessary to give her was a very significant interference with her life and the life of the children and the life of her mother. The disruption which it caused gave rise to considerable friction between the witness and the police officers who had to cope with the situation. It is quite unnecessary to attempt any findings as to whether she could have been handled differently or not. We simply do not know. What we do know is that she became very upset and irate. She sought to retract her statement. She instructed solicitors to sue the police. She protested that her statement should not be used and at other times accepted that it would have to be.[15]That state of relations persisted until the trial began on 19th January 2006. The Crown made a late decision to rely on the evidence of this witness in addition to the remaining evidence which we have sought to set out. Her evidence was served on the first day of the trial. One of the matters the judge had to consider was whether the defendant would have sufficient time to meet it, given its late service. We understand the reasons for its late service but take the view that it was regrettable. But the judge was plainly right to hold that with a trial that was going to take several weeks and the clear availability of mother, aunt and girlfriend, if not of another woman who according to Frances had been present, the defendant had a proper opportunity to meet the evidence that Frances gave if it was untruthful. The judge's ruling to that effect is very properly not the subject of challenge here today.[16]Two to three weeks into the trial, on 6th February, the time came for the witness Miss Frances to be called. She was unwilling to come. She had to be arrested and she was brought to court, under protest and increasingly angry, by police officers. On the way, as the car drew up to a set of traffic lights she tried to get out of it. By the time she arrived in court she was in a state of high excitement and anger. She was brought into court first thing in the morning, having been under restraint until that point, and when offered the alternative of oath or affirmation she stoutly refused to take either course. She said:
"I'm not taking an oath."

The judge said:

"You know that you are here to give evidence, do you not? A: Yeah. THE JUDGE: And are you content to give evidence? Are you quite happy to give evidence? A: I'm here, aren't I? THE JUDGE: Yes, well, it is important that if you are to give evidence that you give evidence having taken a promise to tell the truth. Are you prepared to do that? A: No."
There followed discussion between counsel in the presence of the witness. In due course the jury very properly was asked to withdraw and there followed a debate which runs to some 70 or 80 pages of transcript which gives rise to the appeal before us.[17]After hearing argument and hearing evidence from the police officers who had brought the witness to court and from the log records of the dealings which the witness protection officers had had with the witness over a period of years, the judge was asked to rule upon the Crown's contention that she was refusing to give evidence through fear, those being the operative words of section 116(2)(e) of the Criminal Justice Act 2003.[18]The judge gave a considered and reasoned ruling. The burden of his conclusion is in the following passage:
"... it is clear, as DCI Richardson says, that her present attitude is somewhat of a mixture of fear and resentment. I am sure that of these, the predominant one is fear. It is perfectly plain that from the outset she was extremely fearful, and reluctant on the grounds of fear. The fact that subsequently the souring of relations may also have had something to do with the stresses and strains of the close relationship which she was obliged to have with the Metropolitan Police, in my judgment, in no way supplants the dominant role which fear manifestly has played and I so find."
[19]He went on to consider the additional test posed by section 116(4) of the Act and concluded that in all the circumstances it was in the interests of justice that the evidence should be received and the result was that the evidence was read.[20]Mr Ryder's challenge to the judge's ruling is in the end on a comparatively narrow but critical footing. It is now known that at some time shortly before the trial the witness had undergone a medical scare. There was some suspicion that she had, and certainly she thought she might have, a malignancy. She had been suffering from distressing symptoms and she had a hospital appointment on the day that she was brought to court. Some of that, but not all of it, appears to have been known to the police officers dealing with her. They did not know so far as we can see, and we certainly are not prepared to find that they did know, that she had a hospital appointment. But they did know that she had been off work ill and had been treated for cancer or at least that she was saying that that was the position. The judge was told about none of the medical possibilities. He had asked the police officers who had brought her what she was saying about her reasons for refusal and had received the answer that she was not that day saying that it was fear but that it appeared to the police officer that fear probably underlay the anger that she was demonstrating. In due course the judge's conclusion was the same, as the quotation which we have cited reveals.[21]We are cautious about approaching with hindsight and its inestimable benefits the handling of a very difficult situation which arose unexpectedly for the judge and involved a truculent, rude and aggressive witness. We would, despite that caution, nevertheless have very much preferred that she had been given the opportunity to speak quietly some time during the day that she was there to somebody whom she might regard as neutral and who was charged with the task of trying the find out what the reason was for the attitude that she was adopting. That would have been very much preferable. Quite apart from that, the judge ought to have been told of the possible illness because it might have had a bearing on her attitude. Moreover, if the kind of enquiry which we would have preferred to see happen had been made, it is very likely that the failed hospital appointment on a sensitive topic would have emerged. If that had happened it is always possible that she would still have refused to give evidence because of the underlying fear. We simply do not know. But there is a very real possibility that she would have adopted a different attitude. Certainly we think she would have been dealt with differently at court.[22]In the course of argument, Mr Ryder QC, who if we may say so has presented the appellant's submissions with considerable skill, very properly accepted that there was in this witness a mixture of fear and resentment neither of which could properly be taken out of the equation. If the judge had been fully informed about the circumstances of the witness we do not think it would be possible to criticise the conclusion that he came to in the passage that we have cited. But he was not, and that was, as it seems to us, an irregularity in the proceedings which undermines the decision that he made. Whether it would have been the same if he had been fully informed it is impossible to say.[23]It follows from that that we must proceed to the question of the safety of the appellant's conviction. The first thing to say is that there is no doubt that it is impossible to suggest that the evidence of Sandra Frances was either the sole or the decisive evidence in this case. If it had been, it would have been necessary for us to consider whether to defer decision on this appeal until the outcome of the House of Lords' consideration of the case of Horncastle and others was known. But because it is not the sole or decisive evidence, as is only too plain from our recital of the case generally, that question simply does not arise.[24]The evidence of the finding of the guns and critically of the connection of the packaging to the appellant's home did not depend to any extent whatever upon the evidence of Sandra Frances. It stood wholly independent of her. What her evidence did was to reinforce and to give colour to, but not to introduce, the connection with the appellant's household. Although her evidence was given before the jury, albeit in hearsay form, the appellant neither gave nor called any evidence to explain or refute the connection or the account that Miss Frances gave.[25]It is necessary for us to address the consequences for the appellant of the fact that Miss Frances' evidence was given by reading her statement. The first thing to say is that of course it was not a case of simply reading her statements and nothing else. There was very properly disclosed to the defence all the records of all the conversations that anybody had ever had with Miss Frances about her evidence. That was done because in the course of discussions over years her account had not remained wholly consistent. Thus the defence was armed with numerous possible and in some cases established inconsistencies so that they could exploit them. There were a number of them. We are told by Mr Rees for the Crown, and of course accept, that the nature of them was such that some careful thought had been given by the Crown to what was regarded as a rather difficult decision about whether to rely on the evidence or not in the circumstances. All that material was available and indeed was placed before the jury. In due course the judge specifically reminded the jury of the various suggested inconsistencies when he came to sum up the case. Secondly, any material bearing on the credibility of Miss Frances was also assembled and made available to the defendant.[26]Mr Ryder responded with appropriate care and frankness to our question: what might have been made of Miss Frances had she given evidence? We start from the proposition that there is a considerable difference between a witness's evidence on paper and the jury seeing the witness in the witness box and seeing how she responds to probing and testing questions. But Mr Ryder's submission in the end was that she might have emerged damaged because of the inconsistencies. So she might. So for that matter did Djaba, but whatever the jury's conclusion about him, it was sure of guilt.[27]The possibility that the jury had to consider, whether the witness gave evidence or not, was the same. It was the appellant's case advanced through counsel that he had been framed. In other words, it was that somebody (perhaps because he was himself the murderer) had got hold of the guns and deliberately set out to frame the appellant and to use Miss Frances for the purpose. That would have meant acquiring from the appellant's house the packaging in which the guns were found, then burying them in a place not far away from the appellant's home and then waiting, it would seem for some months, for the police to be tipped off and the guns found. In reality the only plausible possibility would be that Miss Frances was complicit in this. If so, it is highly improbable, if not more, that she should choose to invent a false story involving the participation of several people close to the appellant, namely his mother, his aunt and his girlfriend, any one of whom could have refuted the story but did not.[28]In those circumstances we are, in the end, quite satisfied that the disadvantage to the appellant of not being able to tax Miss Frances in person in court, which always exists in a case of this kind and must not be underestimated, did not in this case render his conviction unsafe. Indeed on the facts of this case and given the absence of any evidence to refute what she said, it is very likely, as it seems to us, that the appellant was rather better off with her absent than present.[29]In all those circumstances, this appeal must be dismissed.