Joseph v R. [2010] EWCA Crim 2580

[2010] EWCA Crim 2580Case No 200803579 C3IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HH Judge Hyam QC, Recorder of London
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/11/2010
Before
LORD JUSTICE PITCHFORDMR JUSTICE SWEENEYMRS JUSTICE SLADE DBE
Between
RECO AUBREY JOSEPHApplicantTHE CROWNRespondent
Mr Paul Mendelle QC and Mr John Lyons (instructed by Registrar of Criminal Appeals) for ApplicantMr Mark Heywood QC (instructed by CPS - Homicide Team) for RespondentHearing Hearing date: 27th October 2010
Judgment
[1]The appellant is now aged 30 years. On 2 March 2004 at the Central Criminal Court following a trial over which HH Judge Michael Hyam QC, the late Recorder of London, presided, the applicant was convicted of the following offences: Count 1: Murder of Shaun Perch, Counts 2 and 3: Possessing a firearm with intent to endanger life, Count 4: Possessing ammunition without a certificate, and Count 5: Possessing a Class A drug, cocaine, with intent to supply. Upon count 1 the applicant was sentenced to a term of life imprisonment with a minimum term of 17 years and 4 months to be served. He received concurrent terms of imprisonment upon the remaining counts. The single judge has referred the application for permission to appeal the applicant’s convictions upon counts 1 – 4 to the full court. At trial the applicant was represented by Mr Borrelli QC and Mr Korda; the respondent was represented by Mr Horwell and Mr Mark Heywood. Before us the application has been presented by Mr Paul Mendelle QC and Mr John Lyons and the respondent was represented by Mr Mark Heywood QC.

Count 4: Possessing ammunition without a certificate, and

[2]The principal ground of appeal concerns the evidence of an expert forensic scientist, employed by the Forensic Science Service, Ms Caroline Stapleton, who gave evidence on behalf of the prosecution at trial. Ms Stapleton recovered from objects which the prosecution sought to link with the applicant firearms discharge residue (now called gunshot residue or “GSR”) and expressed her opinion as to the interpretation of her findings. The applicant’s argument is that there have since trial been changes in the Forensic Science Service’s guidelines for presenting and interpreting evidence of the recovery of GSR which render the evidence given at trial by Ms Stapleton inaccurate or misleading, causing the convictions to be unsafe.[3]The applicant further takes issue with the Recorder’s directions to the jury upon aspects of the law and the evidence.[4]The case against the applicant was circumstantial. It comprised the following main features. The Killing[5]At about 7.00 pm on Good Friday, 18 April 2003, in St Mary’s Road, Harlesden, the half-brother of Nigel Abdullah (aka ‘Andre’ Jermaine Brown, aka Omar Lator Pargo aka ‘Peter’), was shot. He survived the shooting. At the time of the shooting a Volkswagen Golf owned by the applicant’s father, to which the applicant had access, was in St Mary’s Road. A bullet was later recovered from the Golf. At about 8.30 pm, two and a half miles away in Clifford Gardens, Harlesden, Shaun Perch was shot dead by the pillion passenger on a motorcycle which, it seemed, had lain in wait for Mr Perch as he made purchases at an off-licence. Both the driver and the passenger were wearing full visor helmets and black or dark motorcycle clothing. Shaun Perch died at the scene from a gunshot wound to the head. Belvedere Car Pound, 13 May 2003[6]On 13 May 2003 the applicant, Nigel Abdullah and Bernard Lynton travelled to the Belvedere car pound to recover a P registered Ford Escort car. They arrived in a red Mitsubishi Colt, registered number S842 AFB, driven by Abdullah. The car was owned by Abdullah; his thumb mark was later found on the internal rear view mirror. An argument developed about the size of the recovery charge and PC Ochinni attended. Following the officer’s arrival the applicant and Lynton left in the Ford Escort followed by Abdullah driving the Mitsubishi. It was the link between Abdullah, the applicant and the Mitsubishi which was to prove critical to the prosecution’s case. Mitsubishi Colt, 21 May 2003[7]Shortly after 1.00 am on 21 May 2003 the red Mitsubishi Colt was spotted by two police officers who followed it to the applicant’s home address at 12 Oldborough Road, Wembley. A man and a woman were seen to get out of the car and enter the address. The occupants of the car were black. The man wore a three-quarter length coat. The woman was about 5ft 2ins in height, wearing her hair in a ponytail. At about 11.00 am the same morning, officers were keeping watch on the house. The Mitsubishi was in the driveway. Also parked in the driveway was a Suzuki motorcycle, yellow and black in colour, registration number W531 ULP. DS Smith kept watch until about 12.30 pm. During that time no-one entered and no-one left the address. DS Smith was relieved by DC Mabey and DC Johnston. No-one entered or left the address until about 1.00 pm when the Mitsubishi Colt was backed out of the drive and driven quickly away. The officers gave chase but failed to catch the vehicle before it was abandoned in Norval Lane. The occupant or occupants of the vehicle had fled. Since no three-quarter length black coat was discovered in the subsequent search of 12 Oldborough Road, no person was seen to arrive at or leave the address before the departure of the Mitsubishi, and since the applicant’s father, Roy Joseph, was himself arrested shortly afterwards in a white van, the prosecution invited the inference that the driver of the vehicle was the applicant. Search of the Mitsubishi Colt[8]Armed response officers were called to Norval Road. One of the officers, PC Whitfield, broke the front offside window of the Mitsubishi and released the locking device to open the boot. The Mitsubishi was then handed over to local unarmed officers, PC Davis and PC Ayres, and the armed officers made their way to 12 Oldborough Road. Under the front passenger seat of the car PC Davis found a blue sports bag. Inside was a black cloth drawstring bag with a Devel logo. The Devel bag was a carrier which belonged to the applicant’s Devel motorcycle helmet subsequently found in his bedroom at 12 Oldborough Road. Within the Devel bag PC Davis found two firearms. He placed the bag on the driver’s seat to await expert examination. RJ/1 was a shortened 0.38 calibre Smith and Wesson revolver. RJ/2 was a shortened Webley Mark VI revolver. Both weapons were loaded and were made safe by a firearms officer, Mr Butler. Several unspent rounds of ammunition were found in socks within the blue bag, together with a pair of electric scales. Some of the ammunition had been “crimped” to fit the RJ/1 Smith and Wesson. By comparing a bullet associated with the wound to Shaun Perch’s head with test firings of the Smith and Wesson revolver, Mark Mastaglio, a firearms expert, was able to identify RJ/1 as the murder weapon. By examining the bullet recovered from the black Volkswagen Golf, Mr Mastaglio was able to establish, on test firing the RJ/2 Webley Mark VI revolver, that the bullet recovered from the Volkswagen was fired from the Webley revolver.[9]Inside the glove compartment of the Mitsubishi was found a car registration form and a document emanating from the immigration file of Gavin Dean Abdullah. The search of the car also revealed a doctor’s registration form dated May 2003 in the name of Jermaine Brown, one of Abdullah’s aliases. The contact mobile telephone number for ‘Brown’ ended in 6169. Search of 12 Oldborough Road[10]On the same day the applicant’s home was searched. In the applicant’s bedroom was hanging his silver coloured Avirex motorcycle jacket. From a pocket was recovered a repairs invoice for the Suzuki motor cycle together with copies of receipts for the sale of the Suzuki to Corey Joseph, a name the applicant admitted using. Also in the applicant’s bedroom were two motorcycle helmets, one of them his Devel. The second, a Shoei helmet, was contained within a soft cloth bag designed to carry the helmet. From the surface of the helmet was recovered Nigel Abdullah’s thumb print. Inside the Shoei crash helmet was found a pair of motorcycle gloves, SEC/60. A letter whose author purported to be ‘Reco Joseph’ offering to sponsor Gavin Dean Abdullah for his extension of leave to remain in the UK was also recovered from the applicant’s bedroom. On the day of the killing 59 telephone calls had been made or received by 6169. Cell site evidence established that at, or about the time of the killing, the phone was in the general vicinity of Clifford Gardens. The next call in the sequence was at 8.52 pm. That and subsequent calls were made and received while the phone was in the Cricklewood area where the applicant’s girlfriend was living. The officers found a second motorcycle jacket in the applicant’s bedroom, and a money transfer receipt in the name of “Pargo”, another of Abdullah’s aliases. A passport in the name of Jermaine Brown together with travel documents was also recovered. Evidence of Caroline Stapleton[11]Ms Stapleton was and is a forensic scientist employed by the Forensic Science Service at its London laboratory. Since trial Ms Stapleton has married and is now Mrs Caroline Henderson. However, to avoid confusion we shall continue to use Mrs Henderson’s maiden name. Ms Stapleton specialised in the recovery and identification of firearms discharge residues. A number of articles were delivered to her for examination. Gun shot residues are particles of primer discharged on firing. Over 90% of primer particles recovered from case work comprises types 1, 2 or 3 which can be distinguished by experts. On the firing of a weapon a large number of particles are produced. Many remain within the gun and cartridge case. Examination of articles associated with the suspect for identification of GSR is a standard exercise within the Forensic Science Service. The levels of particle recovery are described according to the numbers of particles recovered from any one article or group of articles located in the same place as follows: Low (1-3 particles), Moderate (4-12 particles), High (13-50 particles), and Very High (50+ particles).[12]From inside the barrel of RJ/1, the murder weapon, Ms Stapleton recovered numerous Type 1 particles. Inside the barrel of RJ/2, the Webley Mark VI revolver, Ms Stapleton recovered numerous Type 2 particles. On the outside of the barrel she recovered one particle of Type 1. From samples taken from the interior driver’s controls and seat belt of the Mitsubishi Colt car she recovered 3 Type 2 particles.[13]From the applicant’s motorcycle jacket recovered in the bedroom of 12 Oldborough Road (SEC/22) Ms Stapleton recovered one Type 3 particle from inside the right front pocket. From the second motorcycle jacket (SEC/48) she recovered a single Type 2 particle from the left front pocket. From the left glove of the pair (SEC/60) recovered from inside the Shoei motorcycle helmet, Ms Stapleton recovered a single Type 1 particle from its outer surface. It was the evidence of an eye-witness, Ms Dunya Kalantery, that the pillion passenger on the motorcycle shot the victim using his left hand. The applicant was left-handed although he and his mother gave evidence to the effect that although he wrote with his left hand, the applicant for all other tasks, including throwing, used his right hand. Although it was the case for prosecution that the applicant was the gunman the Recorder, in his directions of law, gave to the jury a joint enterprise direction. If the applicant was proved to have been one of the men using the motorcycle in Clifford Gardens at the time of the killing then, in the circumstances, he was inevitably guilty of murder. Arrest, Interviews and Lies[14]The applicant’s father was arrested on 21 May 2003. The applicant remained away from his home between 21 May and 30 June. On 30 June he attended the police station voluntarily and was interviewed. During the course of interview he told a number of lies. When asked about his connection with the Mitsubishi Colt car, he said that two men, Bruce and Ashley, were associated with it. He made up the names. He admitted in evidence that the car in fact belonged to Andre Jermaine Brown. He claimed in interview that he had not seen Andre since January 2003. The applicant also claimed that the Mitsubishi car had not been at the car pound. He denied that his father, or family, owned the black Golf in which the bullet and a bullet hole were discovered. He said that he had been living at 12 Oldborough Road since the date of the murder. The applicant’s alibi was that on 18 April he had been at the family home during the day. He did not leave the house until 9.30 pm when he took a cab to his girlfriend Latoya’s house in Cricklewood. Defendant’s Evidence[15]At his trial the applicant gave evidence in support of his alibi. So also did his mother and aunt. In the face of compelling evidence to the contrary he said the man he knew as Andre was not Abdullah of whom he had never heard before his arrest. He agreed that Andre had driven the Mitsubishi to the car pound on 13 May. He had been a passenger in the Mitsubishi Colt driven by Andre on the night of 20 May and in the early hours of 21 May. He claimed that he had met Andre in about November 2002. Andre had stayed with the family for about a week and a half but had been told to leave when it was believed that he had stolen a ring. The applicant admitted that he had stolen the ring himself. Andre was one of the applicant’s sources of cocaine of which the applicant was a habitual user. The applicant said that his father had given him the motorbike for his birthday. He had tried to sell it towards the end of 2002 and was making further arrangements to advertise it in April 2003. The applicant gave evidence that he had no knowledge of the bullet hole found in the windscreen of the black Golf. This was inconsistent with the evidence of a prosecution witness, Mr Austin Lewis, to whom the applicant had handed a cheque in payment for repairing the bullet hole in the windscreen. According to Mr Lewis the applicant acknowledged that he was lucky because the bullet hole was “right in front of the driver”. The applicant claimed to have no knowledge of the 6169 number, and denied that he had prepared any application for an extension of leave for Gavin Dean Abdullah. As to the concealment of the firearms in the Mitsubishi Colt the applicant acknowledged that he was aware of them. He claimed that while he was in Andre’s company during the night of 20/21 May, he was sitting in the back of the vehicle when he noticed the bag under the front passenger seat. He retrieved and opened it. He placed his hand inside and pulled out an object which appeared to be a gun. He was unaware of the second revolver. He decided to say nothing about it to Andre in case he became aggressive. Although Andre was banned from the house the applicant said that he smuggled him in. When Andre left later that night, he left the Mitsubishi parked in the drive. The applicant stayed overnight at 12 Oldborough Road with his girlfriend who left at about 8-9.00 am. The applicant said that he had nothing to do with the movement of the Mitsubishi and was unaware that his Devel crash helmet bag had been used to conceal the guns. The applicant said that it was only after his father had returned for lunch that he left the house with his sister to go to his aunt’s. The surveillance evidence was to the effect that the applicant had not left the house as he claimed and he must have been the driver of the Mitsubishi. The applicant said that he had never lent his motorcycle jacket to anyone. Ground 1 – Evidence of Caroline Stapleton[16]Defence counsel at trial were in possession of a witness statement from a defence forensic science expert, Jennefer Kathryn Gray, employed by Keith Borer Consultants. Ms Gray had reviewed the findings of Caroline Stapleton and agreed with them. As to the interpretation of those findings, Ms Gray concluded, among other things:
“the guns RJ/1 and RJ/2 along with live ammunition were found in a bag on the driver’s seat of the Mitsubishi car. Given the presence of large amounts of Type 1 and Type 2 residues in the barrel of RJ/1 and 2, respectively, any person coming into contact with this bag or its contents is likely to be contaminated with residue. This residue may then be transferred to further items such as clothing or the interior of the car. The presence of three particles of Type 2 residue on the driver’s controls of the car is indicative of a recent deposition. This is because of mechanical disturbance causing rapid loss of residues from drivers’ controls during driving.”
[17]Ms Stapleton gave evidence that particles may remain on the hands for about 4 hours, on the face for about 6 hours, on the hair for about 12 hours, and on clothing for up to 24 hours while they are being worn. If, however, clothes are not worn particles may remain there indefinitely. She noted that from the murder weapon particles of Type 1 had been recovered. A Type 1 particle had been recovered from the external surface of the left glove found on the floor of the applicant’s bedroom. However, she conceded in cross-examination that she could not exclude the possibility that the residue on the glove was of Type 2. She further conceded that particles are easily transferable. It followed that a hand could transfer the particle from one article to another. In view of these concessions defence counsel elected not to adduce the evidence of Ms Gray in the course of the defence case.[18]Mr Lyons, when instructed to advise on appeal, was alerted by the decision of this court in Barry George [2007] EWCA Crim. 2722. Mr George had been convicted of the murder of Ms Jill Dando. A significant finding was the presence of a single particle of firearms discharge residue in the internal right pocket of a coat found hanging on Mr George’s kitchen door. It was a particle which contained the same constituent elements as discharge residue in a cartridge case found at the scene of the shooting and on the victim’s hair. The Court of Appeal received fresh evidence which described a change in approach by the Forensic Science Service to its guidelines on “the assessment, interpretation, and reporting of firearms chemistry cases”. The guidance, issued on 19 January 2006 contained the following advice:
“9.5 Reporting single particles and low levels. Any positive finding must be declared in the statement and a comparison of the composition or type can be carried out mostly for the purposes of elimination. Other than this, very little in the way of interpretation can be applied to finding LOW levels of residue because of the lack of relevant background data on residue in the external environment. Whilst the presence of residue in the environment is considered to be extremely rare, persons who associated with firearm users might unknowingly and unwittingly pick up the odd particle of residue. This is the so called “lifestyle” issue ... Case work experience of searching through whole wardrobes of clothes shows that single particles are occasionally detected. Single particles present a particular problem being the smallest detectable amount of residue it is possible to find. A single particle is defined as one particle found on an item or group of items from a single source, e.g. samples and clothing from a suspect all taken at the same time. Unfortunately, it is not possible to say when or how single particles were deposited. It cannot be determined if they are the last remains of some prior association with firearms, or whether they have been deposited quite recently from some likely contaminated source. ... There is no sufficient data on the environmental occurrence of FDR to give a safe interpretation of finding a single particle of residue. Consequently the FSS has adopted a cautious approach to reporting LOW levels of residue and no evidential value can be offered. From an investigative point of view LOW levels of residue may nonetheless have some value; for example, finding a low levels on a discarded item such as a glove may give a significant lead to a police investigation. When an officer is given information on low levels in an investigative submission he must be made aware that in most cases it is unlikely any evidential weight can be attached to the findings.”
[19]Having considered this change in approach and further expert evidence, the court (Lord Phillips CJ, Leveson J, and Simon J) held that the jury had been left with the mistaken impression that the murder weapon was the likely source of the particle discovered in Mr George’s coat pocket. The court said:
“51. It is clear from these extracts [from] the summing up that the jury were directed that the evidence of Mr Keeley and Dr Renshaw provided significant support for the prosecution’s case that the appellant had fired the gun that killed Miss Dando. The judge did not consider that their evidence on this topic was “neutral”
. In this he was correct and his summary is a model reflection of the evidence that had been called. In reality, when considered objectively, that evidence conveyed the impression that the Crown’s scientists considered that innocent contamination was unlikely and that, effectively in consequence, it was likely that the source of the single particle was the gun which killed Miss Dando. In that respect their evidence at the trial was in marked conflict with the evidence that they have given to this court with the result that the jury did not have the benefit of a direction that the possibility that the FDR had come from the gun that had killed Miss Dando was equally as remote as all other possibilities and thus, on its own, entirely inconclusive. In the light of the way in which Mr Keeley now puts the matter, we have no doubt that the jury were misled upon this issue.”[20]We have received in evidence Ms Gray’s further analysis and interpretation of Ms Stapleton’s findings. She concludes that single particles of primer found on articles of clothing recovered from the applicant’s bedroom are not significant but, she said, it depends upon the precise circumstances and other evidence. Even when considering both jackets and the left glove together, the presence of all three primer particles still comprises a low level of residue. Those three particles, being of different types, may indicate that the environment surrounding the wearer of the clothing was contaminated with residue but no confident linkage can be made between the recovered residue and either the Mitsubishi or of the murder weapon at the time of the shooting. It is accordingly Ms Gray’s opinion that the GSR evidence should be regarded as inconclusive. Furthermore, it is Miss Gray’s view that the delay of some four weeks between the shooting and the recovery of the clothing in itself raises a number of questions, for example whether the murder weapon had been re-fired in the interval and, if so, whether the primer residue discharged was a different type. In Ms Gray’s opinion, the period of delay may have rendered the gun shot residue evidence irrelevant.[21]Asked questions by Mr Heywood, Ms Gray said that her opinion was in its material respects the same today as it was when she prepared her report in 2004. She continued to take the view that the particle found in each of the jackets was not of the same type as that (Type 1) which was generated by the shot which killed Mr Perch. Her view continued to be that the presence of a single Type 1 particle on the left glove “does not necessarily indicate that the wearer of the glove fired a gun”, nor does it necessarily indicate that the particle came from either revolver, RJ/1 or RJ/2. Given the 4 week period between the killing and the recovery of the exhibits, and the lack of knowledge about wear, it was not possible to know for what period the particle had been present. It remained Ms Gray’s opinion that the single particle could have been picked up from RJ/1 or RJ/2 or from the environment.[22]Very late in the day, through no fault of hers, Ms Gray was asked to express an opinion whether there was a possibility that the armed police officers who entered 12 Oldborough Road had contaminated the scene with particles transferred from the Mitsubishi. Understanding that the evidence was that the armed officers had searched the Mitsubishi, she expressed the view that contamination was a possibility. However, the evidence was to the contrary; the armed officers had not searched the Mitsubishi. The car was searched by local officers who did not take part in the search of 12 Oldborough Road. The armed officer who broke the window of the Mitsubishi, PC Whitfield, had the task with PC Bodger on arrival at 12 Oldborough Road of “clearing” the loft, which is to say that they searched it to see whether anyone was hiding there. There was no-one present and they left. The GSR particle found in each of the two motorcycle jackets in the applicant’s bedroom was located in a pocket. One of the jackets was hanging behind the bedroom door and the other was hanging outside a wardrobe. The glove was located inside a helmet which was itself enclosed in a bag. PC Murray, who recovered the jacket SEC/22, the Shoei helmet SEC/59 and the left glove SEC/60, was wearing a police search uniform; similarly PC Heward who found the jacket SEC/48. When asked questions by Mr Heywood, Ms Gray conceded that in these circumstances it was “highly unlikely” that contamination had taken place.[23]Notwithstanding this turn in the evidence, in which Ms Gray had confirmed that she had nothing “fresh” to say about the GSR evidence, and that it was highly unlikely that contamination from the armed or unarmed officers had occurred, Mr Mendelle relied upon a further witness statement provided by the prosecution. In a witness statement of 23 February 2010 Ms Stapleton has expressed her opinion formed against the background of FSS guidelines, the latest edition of which is dated 29 January 2009. In their material respects the guidelines are in similar terms to those issued in 2006. At page 7 of her statement Ms Stapleton said:
“There is insufficient residue on the clothing to indicate whether or not it had been exposed to the discharge of a gun at the time of the shooting as I cannot say when any of the particles were deposited or rule out the possibility that particles may have been transferred from elsewhere without any direct exposure to a firearm. However, I would expect that most of any gunshot residue deposited at the time of the incident could have been lost if the clothing had been worn since. The presence of single particles of gunshot residue on three separate garments recovered from 12 Oldborough Road, is insufficient to suggest that the wearer or wearers had some direct contact with firearms, firearms related items or persons involved with firearms.”
Ms Stapleton noted that at page 37F of the transcript of her evidence at trial she said that she could not tell the jury in respect of any of the particles on the clothing how they got there. It was Mrs Henderson’s view that she had expressed the appropriate caution at trial and that Ms Gray agreed with her opinion.[24]Although we received no application from Mr Heywood to call Ms Stapleton to give evidence he was content to permit Mr Mendelle to make submissions from Ms Stapleton’s statement. Mr Mendelle asked us to consider whether Ms Stapleton in her evidence at trial, and the Recorder in summarising the evidence, so expressed themselves as to go beyond the strict limits of her opinion of February 2010. It was submitted that the evidence and the summary were to the effect that the presence of the particle on the left glove was “indicative” of guilt. Mr Mendelle suggested that Ms Stapleton implied in evidence that the particle came from one of the guns and at no stage told the jury that her findings were equally consistent with innocence as with guilt.[25]Ms Stapleton gave evidence (T/26C-27E) that the “trace” of residue recovered from the pockets of the jackets could have been deposited by a gun, a spent cartridge, or a surface such as a hand with residue on it, or any other object with a particle on it. It was not possible to determine when the deposit took place or what object deposited the particle. She said (T/28G) that the particle on the left glove suggested that the glove had, at some stage, been exposed to or in contact with a source of residue. It was not possible to say when the particle was deposited (T/28H). It could (T/29B-G) have come from RJ/1 or RJ/2 because Ms Stapleton could not be certain that the particle was Type 1 rather than Type 2. It was more likely to have come from RJ/1 but (T/42C-F) she could not preclude or exclude Type 2 as the source. In cross examination Ms Stapleton agreed (T/37B) that it was possible for particles to be transferred completely innocently. The Recorder asked (T/39F) whether a particle could be transferred from one hand to another by means of a handshake. Mrs Henderson said that it could. Particles were (T/39H-40B) easily transferred. It was possible that (T/40G-41F) either or both of the two jackets had been worn by someone other than the defendant. If so, the transfer could have occurred without any involvement by the defendant. The transference which took place must have been from a source of the residue but it could have been indirect as the Recorder had earlier suggested. Ms Stapleton agreed (T/44B-48A) that a person who handled the bag which contained the guns or the guns themselves may have transferred particles to surfaces within the car. If an individual in 12 Oldborough Road was carrying particles he could have deposited them both within the house and in the car. The amount would, however, decrease with time. In re-examination (T/50E-51C) Ms Stapleton was asked to envisage one individual depositing all three Types of residue in or on different articles. She said the individual must have been in contact with a source or sources of all three Types. It seemed unlikely that one individual would “innocently” and sequentially contaminate three separate articles of clothing unless there was a “freak contact with a source of residue” and you “transferred it to your clothing”.[26]Ms Stapleton was never asked by Mr Borelli whether the applicant could have been the agent for transfer of the particles from the bag under the passenger seat to the clothing in his room and we are unaware whether there was any indication before the applicant gave evidence that this explanation might be advanced. However, if the jury accepted that the applicant had or may have handled the bag on the night of 20/21 May 2003 Ms Stapleton’s answers to Mr Borelli in cross examination provided a possible, if unlikely (in view of the events of 21 May), explanation for a transfer to the applicant’s clothing and gloves.[27]In his summing up the Recorder (Vol II(a)/69C-F) repeated Ms Stapleton’s evidence that the trace of Types 2 and 3 found in the jackets could have come from “guns, spent cartridge cases, or surfaces with residue on them...in contact with the pockets at some time”. The trace found on the left glove “shows that it had been exposed to or in contact with a source of residue”. The judge reminded the jury (T/70B-E) of the prosecution argument that the particle was “capable of having come as discharge residue from the murder weapon” but reminded them of the defence case that “particles can easily be transferred from one surface to another. All it needs is a hand, a glove, a coat sleeve. Anything could transfer the particle.” He reminded the jury that Ms Stapleton could not exclude that the particle was Type 2.[28]We do not accept that Ms Stapleton expressed herself more forcefully in her evidence during the trial than she did in her statement of February 2010. On the contrary, she made all appropriate concessions at trial. As Mr Heywood frankly acknowledged, although the prosecution set out with the intention of establishing a scientific link between the applicant and the firing of the murder weapon, that attempt failed. The prosecution was then reduced to submitting that the presence of the particle on the left glove was not inconsistent with its case that the applicant was the gunman. The effect of the Recorder’s directions was that the particle could have emanated from the murder weapon but the particle may not have been Type 1 at all and, even if it was, it could easily have been transferred from any object which had the particle on its surface. We entertain no doubt that the jury was perfectly well aware that the GSR evidence was not capable of proving that the applicant had fired the murder weapon. However, any evidence which was capable of linking the applicant with the gun bag was an important part of the circumstantial case associating the applicant with Abdullah. The fact the bag itself belonged to the applicant was plainly relevant. As we have observed, the applicant eventually gave evidence of that association, an explanation which it was for the jury to evaluate. We recognise that the Recorder pointed out (Vol II(a)/36F) the prosecution case that the left glove found in the applicant’s bedroom was part of the circumstantial evidence against him. As with all other parts of the circumstantial case, however, the Recorder proceeded to examine each of its aspects with care and to remind the jury of the evidence upon which the prosecution and the defence respectively relied. In our view the Recorder did no more than fairly to present the case to the jury for their decision. This is not a case such as George in which the jury was misled. Ground 2 - Direction on Good Character[29]On 25 February 2004 a discussion took place between the Recorder of London and counsel as to the appropriate terms of a good character direction in favour of the applicant. The applicant had no previous convictions. Ordinarily he would have been entitled to receive from the trial judge a direction to the effect that the jury should take the applicant’s good character into account in his favour in two respects: first, a defendant of good character may be less likely to commit offences, certainly offences of the gravity alleged, and second, a man of good character may be more likely to tell the truth about important matters. The dilemma facing the trial judge was that in the course of his evidence to the jury the applicant had admitted that he had a long standing cocaine habit, and had indulged in offences of theft, including shop lifting, in order to fund his habit. He admitted that his friend Andre had been excluded from the applicant’s family home for stealing his mother’s ring when in fact the applicant had stolen it. Furthermore, he accepted that during his interview with the police he had repeatedly told lies. Prosecuting counsel, Mr Horwell, reminded the judge that it was open to him to modify his good character direction. Mr Borelli asked the judge to give the jury the full direction. The judge pointed out that in the course of his directions he would have to deal with the evidence which tended to undermine the applicant’s credibility as a witness, not least in giving the “lies” direction. The judge proposed to Mr Borelli that in the circumstances, and in fairness to the applicant himself, he might give to the jury the propensity limb of the direction and say nothing about credibility save in its appropriate context while dealing with the Lucas direction. Mr Borelli asked for clarification as to the manner in which the Lucas direction would be given and the Recorder replied:
“So what I propose to do subject to any further argument ... is simply to give a propensity direction, and then at another part of the summing up refer to lies so that the two are not connected in the jury’s mind.”
Mr Borelli responded:
“No, that would then put our concern away I think.”
[30]When giving his directions of law the Recorder said to the jury at Transcript Volume II(a) page 16A:
“The next matter of law in which I need to direct you concerns the defendant’s good character. He has no convictions recorded against him. You are entitled to bear that in mind particularly with regard to the murder, but in respect to the other offences too, in deciding whether it was likely that the defendant would have committed such crimes. Of course, the fact that a person is of good character does not mean that he is incapable of committing crimes, however serious. If that were so, no-one would ever be convicted because we all start with a good character. But the point is that you are entitled to bear it in mind when you are considering whether the prosecution have proved the case against him and you may put it into the scale in his favour and give to it what weight you think is fair.”
[31]Mr Mendelle has two criticisms to make of the Recorder’s direction. First, he submits that notwithstanding evidence in the trial that the applicant had lied and committed criminal offences the applicant was entitled to the full direction. Mr Mendelle relies upon the examination made by Court in Gray, [2004] EWCA Crim 1074, [2004] 2 Cr App R 496 of a number of previous authorities upon the subject. At paragraph 57 Rix LJ said this:
“ (4) Where a defendant of previous good character, whether absolute or, we would suggest, effective, has been shown at trial whether by admission or otherwise, to be guilt of criminal conduct, the prima facie rule of practice is to deal with this by qualifying a Vye direction rather than by withholding it (Vye, Durbin, Aziz); but (5) In such a case there remains a narrowly circumscribed residual discretion to withhold a good character direction in whole, or presumably in part, where it would make no sense, or would be meaningless or absurd or an insult to commonsense to do otherwise (Zoppolo-Barrazza and dicta in Durbin and Aziz). (6) Approved examples of the exercise of such a residual discretion are not common. Zoppolo-Barraza is one. Shaw is another. Lord Steyn in Aziz appears to have considered that a person of previous good character who has shown beyond doubt to have been guilt of serious criminal behaviour similar to the offence charged would forfeit his right to any direction (at 53B). On the other hand, Lord Taylor’s manslaughter/murder example in Vye (which was cited again in Durbin) shows that even in the context of serious crime it may be crucial that a critical intent separates the admitted criminality from that charged...” (5) In such a case there remains a narrowly circumscribed residual discretion to withhold a good character direction in whole, or presumably in part, where it would make no sense, or would be meaningless or absurd or an insult to commonsense to do otherwise (Zoppolo-Barrazza and dicta in Durbin and Aziz). (6) Approved examples of the exercise of such a residual discretion are not common. Zoppolo-Barraza is one. Shaw is another. Lord Steyn in Aziz appears to have considered that a person of previous good character who has shown beyond doubt to have been guilt of serious criminal behaviour similar to the offence charged would forfeit his right to any direction (at 53B). On the other hand, Lord Taylor’s manslaughter/murder example in Vye (which was cited again in Durbin) shows that even in the context of serious crime it may be crucial that a critical intent separates the admitted criminality from that charged...”
[32]In Aziz [1995] 2 CrAppR 483, at page 488-489 (HL), Lord Steyn said:
“Prima facie the directions must be given and the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye and then adding words of qualification concerning other proved or possible criminal conduct to the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye, the judge may in his discretion dispense with them. Subject to these views, I do not believe that it is desirable to generalise about this essentially practical subject which must be left to the good sense of trial judges. It is worth adding, however, that whenever a trial judge proposes to give a direction, which is not likely to be anticipated by counsel, the judge should follow the commendable practice of inviting submissions on his proposed directions.”
[33]We note that in Shaw v R [2002] 1 Cr App R 77 the Privy Council declined to criticise the omission to provide a good character direction which would, of necessity, have contained so many qualifications as to harm the accused’s defence. The facts of Shaw were very different to the present but the decision serves to demonstrate how fact sensitive the exercise of judgement will be. Mr Borelli had two problems. The first was that the applicant admitted criminal offending of a type, which it has to be accepted, differed from any of the allegations against him. The offending demonstrated, however, a thorough dishonesty. Further, it was common ground that the applicant had repeatedly lied in interview. When Mr Mendelle was invited by Sweeney J, during argument, to propose a form of qualified direction which would have met his concerns Mr Mendelle produced a draft which omitted any qualification based upon the applicant’s abundant admitted lies. To Mr Borelli it was surely obvious there was a danger that the judge’s good character direction would be so hemmed in by qualifications based upon material which the judge would have to draw specifically to the jury’s attention that the good character direction given would do his client more harm than good. It does not come as a surprise to us that defence counsel indicated his satisfaction with the Recorder’s proposal to omit the credibility direction altogether, but to provide an unqualified propensity direction. We do not consider that any unfairness arose. We reiterate that the terms of the good character direction will depend upon the particular problems thrown up by the evidence at the trial. We have no criticism to make of the Recorder’s approach, nor of defence counsel’s decision to accede to it. It may well be that on similar but slightly different facts it would have been appropriate to give a qualified Vye direction upon both limbs. As it is, we see no grounds for interfering with the judgement of those who were considering this difficult subject at the time.[34]Mr Mendelle’s second complaint is that the terms in which the judge expressed the propensity limb of the good character direction were not sufficiently emphatic. Instead of expressing his direction as a requirement of the jury, the Recorder told them that they were “entitled to bear in mind” the defendant’s good character. We accept that it is necessary for the trial judge to convey to the jury that they should take good character into account in the defendant’s favour. However, having considered the passage which we have extracted above, we have concluded that the Recorder was not leaving it to the jury to decide whether they should take into account good character at all, but he was advising them that they should consider the applicant’s good character as he was directing them but they should decide how much weight to afford good character in the circumstances. In Moustakim [2008] EWCA Crim 3096 the court was examining a good character direction found to be defective in a number of respects, chief of which was that the trial judge merely endorsed the defendant’s right to argue that her good character was relevant. In particular, as to the propensity limb of the direction, the judge said that “she was entitled to have it argued that she was perhaps less likely to have committed the crime”. In our opinion the Recorder’s direction was sufficiently emphatic to convey to the jury the need to consider good character in his favour to the extent which was “fair” in the circumstances. We do not consider that this complaint has substance either. Ground 3 – Mobile Phone 6169[35]The significance of the mobile phone number 6169 was its location in the general vicinity of the murder at the time and its association with Nigel Abdullah and, through him, to the applicant himself. It was not the prosecution case that the mobile phone belonged to the applicant but Mr Mendelle submits that the judge may inadvertently have given the jury the impression that the evidence supported such a conclusion.

(a) page 26G of the Transcript of summing up the Recorder said:

“As we know, a number apparently associated with him [the applicant] 6169 was used on 18 April and very significantly used. I will remind you about it later but the real point is that at about 8.30 that telephone number received a call and it evidently was received in the vicinity of Clifford Gardens. I think at 8.52 there was a call connected with Cricklewood where of course the defendant’s girlfriend lives. I say apparently associated with him, because he denies that it was. Again, we will come to the detail there, but you will remember the information comes particularly from the doctor’s registration at Tab 9 page 42 and also the letter which was purportedly written by the defendant in support of Gavin Dean Abdullah, where that number is given but I will come to that later. So, the prosecution say again that is a significant lie about the phone he was using during that period.”
[36]During a short adjournment in the afternoon of 26 February 2004 Mr Borelli drew to the Recorder’s attention a statement contained in the unused material which made it clear that the telephone 6169 was Abdullah’s. The Recorder observed, “What the prosecution are therefore saying is that the association with Andre is that telephone”. Mr Borelli assured the Recorder that he had not thus far misled the jury and was only drawing the unused material to his attention because he wanted to avoid later interruption. Subsequently, while reminding the jury in summary of the evidence, the Recorder referred to the formal admissions in which the telephone number 6169 appeared as a contact both for Jermaine Brown (in the doctor’s registration form) and for Reco Joseph (in the letter, denied by the applicant, sponsoring Gavin Dean Abdullah).

The judge concluded:

“So that the evidence goes as far as this; that that is a number which is associated with someone using the name Abdullah and it is associated by the two documents.”
[37]Mr Mendelle submits that the judge neglected to inform the jury that if he had given the impression that the prosecution case was that the phone belonged to the applicant, then he was wrong to do so. We have read both passages of the summing up with this submission in mind. Whether the applicant was the owner of the telephone was not to the point. The issue for the jury was whether the applicant was so closely associated with it that it provided a link between himself, Abdullah and the killing. It seems to us that the Recorder’s summary of the evidence went no further. It is clear that Mr Borelli did not think so either. We conclude that the jury was never invited to draw an inference to the effect that the 6169 telephone belonged to the applicant and no unfairness resulted. Ground 4 – Hostile Witness Direction[38]The trial took place in 2004 before the hearsay provisions of the Criminal Justice Act 2003 came into force. An eye witness to the shooting gave evidence under the pseudonym “John Allen”. The witness had made an unsigned statement to the police to the effect that the Suzuki motorcycle, ridden by the killers was yellow and black. When he gave evidence the witness insisted that the killers were riding a red Suzuki motorcycle. The prosecution was permitted to treat the witness as hostile. No complaint is made about that judgement. An issue arose between the witness and the prosecution as to whether the record of the witness’s pre-trial statement had been tampered with.

(a) /19E) he said:

“You will recall the arguments which Mr Borelli advanced and you will give what weight you think is due to them if you think that the issue is an important one. The point is, so far as you are concerned, is that you should first consider whether Mr Allen was credit worthy at all, and in that you will have to consider whether a person who contradicts himself in such a way is a dangerous witness to rely on. If you decide he is a dangerous witness to rely on, you will not do so. If, on the other hand, you come to the conclusion that the witness was not wholly uncreditworthy you may go on to consider which parts, if any, of his evidence you could accept. In that consideration you may only look at the evidence which he gave in court. That excludes what he has alleged to have said in the unsigned statement. In other words, you must ignore what he has alleged to have said about the Suzuki being yellow and black. What he said in the unsigned statement is not evidence and you cannot rely on it because he said in the witness box that it was not true. There is no evidence that the motorcycle which the two men were riding at the time of the incident was black and yellow and you should dismiss that from your consideration.”
[39]Mr Mendelle submits that the Recorder should have given the jury an explicit direction to the effect that if they concluded Mr Allen’s oral evidence that the motorcycle was red was true or may have been true then it should be treated as a significant weakening of the prosecution case. Another eye witness, Ms Kalantery, had said that when the motorcycle passed her she saw a flash of red. She could not be sure whether she had seen a red motorcycle (as she had described at the time she made her statement and drew a plan) or had seen a red light or something similar. Mr Mendelle argued that the judge should have made these explicit points to the jury because the jury may have regarded Allen’s evidence as supportive of Ms Kalantery’s first impression. We do not accept this submission. It is clear that the learned judge, when referring in the extract at paragraph 38 above to Mr Borelli’s submissions, had very much in mind the significance of the evidence going to the question of tampering with the statement. The jury required an explicit direction that they could not use Mr Allen’s pre-trial statement as evidence of the colour of the motorcycle. Mr Borelli, of course, wished the jury to accept that Mr Allen may have been telling the truth about a red Suzuki motorcycle. That is why he deployed the arguments he did as to the pre-trial statement. The jury cannot have been in any doubt, in our view, that if they considered that the evidence of John Allen as to the colour of the motorcycle was true, or may have been true, that was a matter which assisted the applicant. Furthermore, the Recorder correctly pointed out that there was no evidence that the motorcycle used by the killers was black and yellow and they could not use the statement made by Allen as evidence that it was. In the circumstances, we do not consider that a further specific direction was required. It was perfectly obvious from the context in which the hostile witness direction was given and the case being conducted on the applicant’s behalf that(1) only the witness’ oral evidence was admissible, including the assertion that the motorcycle was red and(2) that if in this respect the jury accepted that Allen may have been telling the truth that was a matter of importance to the defence.[40]In our judgment, upon examination, none of the matters raised renders these verdicts arguably unsafe and we refuse leave.

Cited in 1 later judgment