McDonald v R [2011] EWCA Crim 2933

Case No 201100287 D3[2011] EWCA Crim 2933
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT MANCHESTER, THE HONORARY RECORDER OF MANCHESTER, Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/12/2011
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE STADLENHIS HONOUR JUDGE MORRIS QC(sitting as a Judge of the Court of Appeal Criminal Division)
Between
WAYNE MCDONALDAppellantTHE QUEENRespondent
Guy Kearl QC and Stephen Vullo for AppellantAndrew Menary QC and Lisa Roberts (instructed by the CPS) for ProsecutionHearing Hearing date : 25 November 2011
JudgmentLord Justice Stanley Burnton :Introduction
[1]On 15 December 2010 in the Crown Court at Manchester (the Recorder of Manchester) the appellant was convicted unanimously on the following 5 counts and on 17 December 2010 he was sentenced as follows:(1) counts 1 and 3, attempted murder: life imprisonment with a minimum term of 222 months;(2) count 5, possessing a firearm with intent to endanger life: 8 years’ imprisonment concurrent;(3) count 6, possessing a firearm: 5 years’ imprisonment concurrent;(4) count 7, possessing ammunition: 3 years’ imprisonment concurrent. Counts 2 and 4 charged wounding with intent, and were alternatives to counts 1 and 3. Thus the effective sentence was life imprisonment with a minimum term of 222 months (18½ years). No days were ordered to count as the appellant was already serving a sentence for other offences.[2]He appeals against conviction and sentenceby leave of the single judge.

The facts in summary

[3]On 24November 2000 Lee Howarth and Bryan Kemp were both shot as they left the Atlantis Nightclub in Bolton. They were taken by ambulance to hospital. Although they had been hit by a number of rounds both survived their injuries. The shootings had taken place outside the front doors to the nightclub and there was a large crowd of people leaving the club and milling about outside at the time. Over 40 eye witnesses gave statements to the police. The bullets were allegedly fired from one of two firearms kept in the boot of a silver BMW car which was parked in the car park nearby.[4]The prosecution case was that the appellant was the gunman. It was alleged that he arrived at the nightclub in the BMW car, in the boot of which were found after the shooting another firearm and ammunition matching that used in the shooting. He was said to be the man identified on CCTV recordings as Male 1.[5]The defencedid not accept that the appellant was the man identified by the police witness as Male 1 on CCTV recordings, and that in any event Male 1 could demonstrably be shown on the Crown’s case not to have been the gunman in any event.[6]The appellant gave no answers on arrest or in interview; no defence statement was served; and he did not give evidence.

The grounds of appeal

[7]The principal grounds of appeal are essentially twofold: that the appellant’s bad character should not have been admitted; and that the summing up was unfair and deficient. In addition, complaint is made as to judge’s interruption of the defence closing speech, and as to the admission of telephone evidence; and it is suggested that the prosecution of the appellant was marred by bad faith. The admission of the bad character evidence.[8]On behalf of the appellant, Mr Kearl QC submitted that the bad character evidence should not have been admitted because it was to be used by the prosecution to bolster a weak case. Reliance was placed on the decision of this Court in R v Hanson [2005] EWCA Crim 824 [2005] 2 Cr App R 21.[9]In Hanson, a guideline case, the Vice President, Rose LJ, said:
“10. … When considering what is just under section 103(3), and the fairness of the proceedings under section 101(3), the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are. … 18. Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant. In particular, the jury should be directed; that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions. That, although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show a propensity is for them to decide; that they must take into account what the defendant has said about his previous convictions; and that, although they are entitled, if they find propensity as shown, to take this into account when determining guilt, propensity is only one relevant factor and they must assess its significance in the light of all the other evidence in the case.”
[10]However, some care is required when considering whether bad character evidence is to be used “simply to bolster a weak case”. Where the bad character consists of convictions, the degree of similarity between those convictions and the offences being tried will be a relevant consideration, as pointed out by Rose V.P. at paragraph 10. The more specific the similarities between the previous convictions and the index offence, the more relevant are those convictions and the more substantial the argument for their admission in evidence. If, for example, the modus operandi in the previous offences was highly unusual, and the same modus operandi was followed in the index offence, that may of itself be evidence that the defendant committed the index offence.[11]In the present case, the bad character evidence that was admitted related to the appellant’s use of firearms. In 1990, the appellant had been convicted of possessing prohibited weapons, being a prohibited person possessing a firearm and being a prohibited person possessing ammunition, as well as other offences. In May 2009 he was convicted of robbery, wounding with intent to resist lawful apprehension and possessing firearms when committing an offence. This conviction related to an offence in 2007 at Bamber Bridge in Preston. Two men entered a public house looking for the takings. The manager was in bed at the time but he pid:951and his partner were able to telephone the police. The manager was pistol whipped with a handgun. The appellant ran from the public house, was challenged by a policewoman, who was a dog handler, and discharged a shotgun in her direction. She survived. The appellant was arrested shortly afterwards.[12]The judge considered that the case against the appellant was not a weak case of the kind referred to by Rose VP in Hanson. We agree. It was a strong case. The evidence against the appellant included the following:(1) The evidence that the BMW in which the guns and ammunition were found were his. It had been purchased by the appellant’s brother-in-law, who had said that it was for his brother-in-law. A tissue with the appellant’s DNA was found in the boot. In addition, the appellant was linked to the car phone in the BMW, and to Nasar Ahmed, who had gone to the car after the shooting and been arrested at the car.(2) There were two sources of CCTV evidence. The external CCTV was of poor quality; the CCTV pictures inside the club were of relatively good quality. The internal CCTV showed the appellant, recognisable as such, entering the club at a time consistent with his having come from the BMW seen to be parked on the external CCTV.(3) One witness saw a man rummaging in the boot of the BMW, who with another man then approached the club and put his hand in his jacket and extended his arm. The witness heard bangs. The man ran off. The prosecution case was that the man rummaging in the boot was the appellant, who took the gun and ammunition from the boot.(4) Another witness heard someone say, shortly before the gunfire, “It’s all right, I’ve got it sorted, it’s in my boot.” The obvious inference was that this was the appellant, referring to the firearms in the boot of his BMW.(5) A further witness, John Walker, said he watched a man, with a shaven head, walking to the BMW. A second man joined him and seemed to be shielding the first one. He drew it to the attention of his friends and used a lipstick from one of the girls to note down the registration number of the car. He saw the man with the shaven head put something up his coat. Walker guessed that it was a gun. Both men approached the club and he saw the shaven-head man take out a gun and fire it about 5 times. Both of the men ran off and Walker lost sight of them. He pointed out the BMW car to police officers when they arrived.(6) On his arrest, Ahmed was in possession of the key to the BMW and a phone linked to the appellant and which received a call whilst he was being arrested from another phone linked to the appellant.(7) The appellant telephoned his girlfriend shortly after the shooting to tell her that “something bad had happened and that she would not be seeing him for some time”.(8) The appellant did run off after the shooting and apparently disappeared for some years.(9) The appellant gave a no comment interview and had not indicated any positive defence.[13]In the above list, we have deliberately excluded the eye-witness descriptions of the gunman, which generally were an ill fit with the appellant. But the other evidence to which we have referred was compelling.[14]In our judgment, the fact that the appellant had convictions for firearms offences was relevant evidence that was properly admitted and that supported the prosecution case, entitling the jury to find that he had a propensity to possess and to use firearms.[15]Mr Kearl candidly said that the effect of the bad character evidence was devastating, but accepted that, if properly admitted, the fact that it was so damaging could not be the subject of justified complaint. We accept that the bad character evidence powerfully supported the prosecution case; but that was because it was so relevant. But what was also devastating was the fact that, in the face of a compelling prosecution case, the appellant did not give evidence.[16]We reject this ground of appeal.

The summing up

[17]Before turning to the appellant’s contentions in relation to the summing up, we can mention what appear to us to have been the best points available to the defence. The first was that relating to the identification evidence: the descriptions of the gunman given by some eye witnesses were an ill fit to the appellant. Moreover, the eye-witnesses did not agree among themselves as to his description. The second concerned the interpretation of the CCTV evidence. If, as the police witness called to give his analysis of the CCTV recordings, Mr Houston, said, the appellant was Male 1, he could not have been the gunman, because the CCTV showed Male 1 to have been among a group of men who were not at the place from which the firearm had been fired when it was fired.

Identification evidence

[18]The judge accurately summarised the eye-witness evidence. At page 61 ff. of the transcript, he said:
“Now I'm going to come to the appearance of the gun man. You don't have evidence which says that anyone identified the gun pid:9851man at the scene. What you have are a series of descriptions not all of them identical in every respect but there is complete agreement, that there was but one gun man and it was the man who went to BMW. The Crown's case is that that pid:9901was the defendant. So the reason you have heard the various descriptions is so that you can consider whether the descriptions given support or detract from the Crown's case. You know what defendant looked like in general terms then, [the judge referred to a roughly contemporaneous photograph]. Now a touch of realism. How pid:9951people's hair looks depends on the cut they've had. Mr. Kearl put forward a proposition to you that hair tends to recede later in life, well I suppose as a generalised proposition, there is nothing wrong with that, but what you can't do is pid:10001take a logical step to and say that because amidst the generality hair recedes later therefore no one’s hair recedes earlier. Some people have receding hair lines in their early twenties; some still have magnificent growth of hair in their nineties. Some people pid:10051choose to wear the traditional way of having thinning hair. Some people now go for a close crop of their head. …What hair looks like depends upon lighting, it pid:10101depends on time of day, it depends on all sorts of things that's what Mr. McDonald looked like with his hair and that photograph was taken. Again you are going to have also to take into account Mr. Kearl's points about whether you describe his hair as being dark or mousey. pid:10151Brown must be inconsistent with it having the appearance of it being fair. You will have to form a judgment about how hair looks when it’s shorter or when it’s seen at night and so on and you form your own judgment. Mr. Kearl also lays emphasis on pid:10201the fact that defendant was actually 39. Of course the important point is what the apparent age is of the person at the time given the lighting conditions given his manner of dress given the way in which his hair is. Now can I just also say this, some pid:10252may have had a better view of others, the light may have been better for some for the angle of view, some may have better powers of recall or worse, some may have been drinking, some may not, so some differences in recollection of what pid:10301someone looked like or was wearing are you may think not unusual on the other hand substantial differences might mean that one or either recollection or both was unreliable and these are also recollections from a frightening and fast moving seen at night with a large number of pid:10351people in the area.”
[19]Mr Kearl focused on the judge’s reference to “a touch of realism”. He submitted that in the above passage the judge was downplaying the defence, and in effect arguing the case for the prosecution.[20]We do not accept these criticisms. The judge was entitled to comment on the risks inherent in identification (and description) evidence. Mr Kearl submitted that the object of a Turnbull direction is the protection of an accused, and it is not to be used in favour of the prosecution. We disagree. The problems of identification evidence are objective and inherent, and its potential weakness is relevant to the jury’s consideration of such evidence, whoever is relying on it. Where it is the prosecution that is relying on such evidence, the judge is required to give a Turnbull direction. It may be that the judge is not so required where it is the defence that is relying on the identification evidence, but that does not preclude his doing so. Mr Kearl’s point on receding hairlines was certainly fallacious, and the judge was right to have pointed that out.

CCTV evidence

The judge addressed this at page 30 ff of the summing up:

“I now want to come to events that night and the conduct of the gunman and I hope that CCTV is available please. Now, we are going to look at this, we pid:4702are going to look at this all the way through and then we are going to come back and I want to look at a couple of sequences in view of the submissions that were made yesterday. I am going to remind you of the salient features of what eye witnesses pid:4751said and you will also find DC Houston's compilation helpful. First of all some health warnings. First of all CCTV is not a magic bullet. CCTV sees what happens to be in the cameras view subject to all the other questions that you have. As pid:4801you have seen it’s jerky. The gap between the frames is not that which you would expect at the Odeon. It’s jerky, and you must look at the timings on the screen actually to see how many seconds are passing. Next, some, but by no pid:4851means all of the footage is of poor quality. It’s of course not independent. Mr. Houston has told you he was unable to pick out people and events without a starting point of the information he had from witnesses on movements and what people were wearing. So, look at pid:4901the footage but you are not bound to accept his interpretation. And I will be taking you to the pieces of evidence which support or not, what you see on the CCTV. Now it seeks to identify three men with circles. The prosecution’s case is that one was McDonald. But pid:4952the CCTV identification is not evidence that it was Mr. McDonald. There is no evidence before you that anyone has identified anybody seen on that CCTV as McDonald. What it does help you on is what these men, including the man said to be the gunman pid:5001looked like and did. It then for you to consider the evidence relating to the car and McDonalds alleged control over it to decide whether he was involved and to decide if he was the gunman.”
[22]Mr Kearl suggested that the judge’s reference to “the submissions that were made yesterday” was to the contention he had made to the jury that, since Male 1 could be seen on the external CCTV not to have been at the location from which the gun was fired, the appellant, who according to the prosecution was Male 1, could not have been the gunman. We accept that this is probably correct. Mr Kearl then submitted that the judge, in this passage, was seeking to meet this contention. He was in effect arguing the case for the prosecution, downplaying Mr Houston’s evidence, and in effect inviting the jury to reject it.[23]We have seen the CCTV evidence. The external CCTV is of poor quality, and we think that the judge was entitled to remind the jury of its limitations. His direction that the jury was not bound to accept Mr Houston’s evidence was no more than part of the standard direction in relation to expert evidence. Mr Houston’s evidence that Male 1 was the appellant, had come from the boot of the BMW and at approximately the time of the shooting was among a group of men away from the location from which the gun was fired (as established by the location of ammunition casings found after the shooting) was inconsistent with the eye-witness evidence that the gunman had come from the boot of the BMW towards the club and fired his gun. Mr Houston did not identify anyone as having come from the car boot to the location of the firing.[24]What we consider to be the defect in this part of the summing up, which was not remedied elsewhere, was the omission of a clear statement of this part of the defence case. This defect was aggravated by the suggestion, at page 37 of the transcript, that the calibration of the CCTV times may have been wrong (a suggestion not made previously) and the judge’s reference to the 5 seconds between the last external CCTV pictures before the firing of the group said to include Male 1 and the time of the firing of the gun (identified by one of the victims being seen to fall to the ground), implying, possibly, that the gunman had time to walk from the group to the firing location.

The appellant’s bad character

[25]Mr Kearl submitted that the judge had overemphasised the bad character evidence, and thereby prejudiced the jury against the appellant. The bad character evidence was referred to three times. At page 21, judge said:
“Now the next part of my summing-up relates to what I have called character. You don't have this in writing but this may be quite important. It won't take very long to say but it’s important. You have pid:1551heard that this defendant has been convicted on two other occasions of offences involving the possession and use of firearms. The convictions are recorded in the third set of formal admissions, I needn't ask you to look at it now, but I remind you that pid:1601in May 1990 at this Court, he pleaded guilty to possession of a prohibited weapon in the form of a sawn-off shotgun, possession of one while prohibited from so doing and possession of ammunition whilst prohibited from so doing. And then on 29th pid:1652April 2009 at the Crown Court at Preston, McDonald was convicted of robbery of a man called Gormal in the sum of a little over £12,000, wounding Katie Johnson with intent to resist arrest and possessing firearms, a self-loading pistol pid:1701and sawn-off shotgun at the time of committing an offence. ... Now as to the facts of those two sets of convictions, we don't know the facts of pid:1801the first set, we know about the convictions. As to the second, you will remember it was a bungled armed robbery of a public house. The manager was pistol whipped and then as the defendant emerged from the public house he was challenged by a policewoman, he pid:1852fired a shotgun at her and was later arrested, and convicted. Now, you may ask well why have we heard about these? You have heard of the defendant’s other convictions and the circumstances so far as they are known because it is relevant to the question of whether pid:1901he has a propensity, in other words a tendency to commit offences of the kind with which he is now charged. The particular features of those convictions upon which the prosecution rely, are that they show that he has a propensity to carry and use firearms and pid:1951to use them to inflict injury. The purpose of this evidence is not to generate unfair prejudice towards the defendant and you must guard against that. As Mr. Kearl said to you, rightly, and so did Mr. Menary, the fact that the defendant has been convicted on pid:2001other occasions, cannot of itself prove his guilt of these offences and you mustn't convict him just because he has been convicted on other occasions or mainly because he has been. So what should you do? First, you should consider whether the evidence of the defendant’s pid:2051other convictions establishes that the defendant has a propensity or tendency to possess, use and discharge firearms as weapons. You must first decide whether the propensity is proved to the extent that you're sure of it. If you are sure he has that propensity you must secondly decide whether and pid:2101to what extent that helps you when you are discussing whether the defendant is guilty of the offences charged here. If you are not sure that propensity is proved, it cannot assist you in this way. Even if you accept that he has a propensity to commit offences of this pid:2151kind, it does not necessary follow that he is guilty on this occasion. So you may ask how could it be relevant. Now there is no doubt in this case that there was a gunman at the Atlantis Club that night. The question in this case is, pid:2201was it Wayne McDonald? You are going to have to address questions, such as the evidence on the association of the defendant with the car. The findings of the DNA and all the other evidence relating to what happened and you are going to have to ask whether that pid:2251is such as to make you sure that he has been correctly identified as the gunman. The prosecution say that given that defendant does have a propensity to possess, use and discharge firearms and weapons, then it is not a coincidence that there is evidence which, if pid:2301you accept it, ties the defendant to the car used by the gunman and to the gun and ammunition found within it. The defence say that the conduct of Mr. McDonald on the other occasions should not assist you in determining the facts of this matter. They say that it pid:2351doesn't have sufficient weight to fill in what they say are the gaps in the prosecution case. Please bear in mind that this evidence of the previous behaviour I mean previous to today, that the defendant’s previous behaviour is only one part, a small part of pid:2401the evidence in the case. You will appreciate it’s not direct evidence that defendant committed these offences. But it is evidence of circumstances concerning the defendant which you are entitled to take into account when deciding whether he did commit these offences.”
[26]At page 26

the judge summarised the prosecution case as follows:

“… the Crown in summary rely on what they say is the ample evidence associating McDonald with the BMW and with Ahmad, the telephone evidence, the pid:3152key fob and all in the car bought by a relative in the recent past, and the Crown rely on the DNA analysis of the tissue it says was found in the boot. The Crown also say that the general description of the gunman accords with pid:3201McDonald’s appearance at the time. They say it would be coincidence of staggeringly unlikely proportions if all of that pointed to an innocent man in the form of McDonald when he is known to carry, use and discharge firearms. And the prosecution say that it is pid:3251an overwhelming case and that it was him.”
At page 85 of the transcript, the judge said; “Now the next pid:1251topic I want to come to is the evidence of other possession or use of firearms by Mr. McDonald. I have already reminded you of the facts as they are known of the other convictions and I have given you directions on the use you may make of pid:1301it. I remind you, you mustn't convict him of any of these offences because he has been convicted on other occasions. But if you are sure that he behaved as described in the unchallenged evidence you may take his conduct into account when considering whether he has a pid:1351propensity to carry firearms and use them as weapons. The prosecution say in particular that you may find the evidence of his association with firearms helpful. They say that given his known propensity it would be an astonishing coincidence that guns were kept in and pid:1401collected from the boot of a car so firmly associated with him and apparently continuing his DNA but entirely without his knowledge. The defence say that other offences do not help in whether or not he committed these offences, and Mr. Kearl was saying to you well, they [i.e., the prosecution] pid:1452might show that he was there, they might show that he had a connection with firearms, but what you don't have is evidence from which you could infer that he pulled the trigger.”[27]It is not unusual for bad character evidence to be referred to more than once during a summing up: once when summarising the case at the beginning, to indicate to the jury what is coming, and again in order to give the facts of the previous offences. This is what the judge did, and in addition he summarised the prosecution and defence cases towards the end. We do not consider that there was undue emphasis on the bad character evidence, or that the judge’s summaries of the prosecution case were objectionable. His detailed direction, cited above, at page 21 ff. of the transcript, was entirely appropriate and is not and could not be the subject of complaint.[28]The fact is that the bad character evidence was significant. It was not simply of violence, it was of violence with firearms. It demonstrated access to firearms and a readiness to use one. It is not surprising, therefore, that it featured significantly in the prosecution case and in the summing up.

Arguing the case for the prosecution

[29]At various points in the summing up, the judge commented on the evidence in terms of which the appellant complains. His general submission is that the judge argued the case for the prosecution, doubting evidence that was adverse to its case but not doing so where the evidence was adverse to the appellant.[30]~We do not accept this criticism. The judge was right, for example, to comment to the jury on the fact that eye-witness descriptions frequently differ from each other, and may all be inaccurate. An example of the criticism can be seen in relation to the following passage:
“You know that at least two, I think it’s actually four eye witnesses, were asked to look at video footage to see if they recognised anyone as pid:3651the gunman they had seen. That was at least seven months later, some time after the latter part of June 2001. There is no suggestion that the procedures were not properly conducted but records of their viewings have been lost. Apparently none pid:3701of them said that the man in the foyer or anyone else was the gunman. Nor is there any evidence that anyone said that it was not the gunman. There is in fact of course, no evidence called by anyone to say that man in the pid:3751foyer was the gunman. Nor is there any evidence that it was Mr. McDonald, although the Crown's case is to say that the man in the foyer fits his appearance at the time. The most you have is, that Mr. Houston's analysis of the CCTV, remember pid:3801referred to male number one. It is of course correct that Mr. Kearl exposed the inconsistencies in what happened about knowledge of those procedures and he was entirely right to do so. And he explored it in cross-examination and he put the facts before you in his submissions.”
[31]The point addressed by the judge in this passage related to the late evidence that four eye-witnesses had been shown the CCTV but had not identified the appellant as the gunman. There were no surviving records of those procedures, which is why, we think, the judge said “Apparently”, rather than, as suggested by the appellant, in order to downplay the significance of the non-identification. The judge’s statement that there was no evidence that anyone had said that the man identified in the internal CCTV was not the gunman was factually correct, and was a fair comment to make. The appellant compares the above passage with the more positive comments of the judge at page 8 of the transcript, but that passage was balanced and unexceptionable, and we do not think that the difference in comments was unfair. The judge said:
“You must also reflect on what memories you think people will have. Asking someone to remember a weekend in 2000 when nothing much happened may produce a pid:2101different answer from asking someone married that year to remember their wedding day. Of course, some marriages they may think nothing much happened that day. Asking someone to remember a time when they got stuck in traffic on the motorway ten years ago a quite mundane if tedious pid:2151event may produce a different answer from asking someone to recall what happened when they were involved in a car crash that year, which is not every day and maybe very frightening. On the evening in question, someone fired off eight bullets injuring two people, and pid:2201one other person was hit, Louise Casey, by the shell, if you remember perhaps, Louise Kelly rather. For those involved, is this something which could make a considerable impression? Or not much? How good would their recollection of this frightening incident be when pid:2251asked to recall it within a day or so? Of course you must also consider the fact that it occurred at the end of a night in a club when no doubt plenty was had to drink by some. I noticed someone on strictly come dancing said this weekend that I pid:2301was the first time in his life that he has ever had to dance whilst sober, and you may think that's something which also might have been true here, that people would normally not be dancing sober. From the defendants point of view, if he is not the pid:2351gun man, could he be expected to have a recollection of that day? On the one hand it’s now ten years ago. On the other, whatever it was that did happen to him that day, it was enough to tell his former girlfriend that something pid:2401bad had happened, and it was a day when two of the 3 phones he had been using were no longer available to him. If you accept the evidence that he was using the BMW car, it was also the day upon which he was deprived of pid:2451it as it was seized by the Police. You should also be fair in your approach to the evidence of eye witnesses at the club. Few things happen in life where every participant or spectator has exactly the same recollection, how tedious it would be at a football match pid:2501if everyone in the ground agreed that tackle had been a foul. Few things happen in life where every participant or spectator has exactly the same recollection or gives a description of someone involved which is the same as every other description given. You must look at the pid:2551evidence and ask which bits you are sure of, which bits you are unsure of and which bits you reject and then consider those inferences and conclusions you may safely reach. Please do not do so without addressing all of the evidence.”
[32]We have carefully considered all of the passages drawn to our attention in the appellant’s skeleton argument. We do not think that the summing up was unfairly unbalanced. We reject this ground. The judge’s interruptions[33]The appellant’s skeleton argument includes numerous examples of the judge asking questions of witnesses called by the prosecution. He is clearly an interventionist judge, and care must be taken when intervening not to give the impression that the judge favours one side rather than the other. However, it is also crucial that the judge follows the evidence, and clarifies any material ambiguity or lack of clarity. Generally, Mr Menary’s examinations and re-examinations of witnesses were the subject of interventions just as much as Mr Kearl’s cross examinations. The transcripts show the judge taking care to follow the CCTV evidence, which accounts for his interventions in the examination and cross-examination of Mr Houston. If we take the evidence of Amy Brooks, an important eye-witness, as an example, in her original statement she described the gunman as being 5 feet tall: i.e., very short, and indeed shorter than the witness. A number of questions were asked by the judge to establish whether the typed transcript of her handwritten statement was accurate in relation to her estimate of his height. The judge postponed her cross examination so that the matter could be clarified before Mr Kearl cross examined. This was unexceptionable, and no complaint is made as to it. Thereafter, the judge’s interruptions were aimed at his following the point of the cross examination.[34]In our judgment, the objectionable interruptions by the judge occurred during Mr Kearl’s final speech. Mr Kearl was going through the CCTV recording with the jury. We take the transcript from page 7 of volume IV:
“MR KEARL: Now we’re just going to run through clip 12, and you get the enlarged version of this. This is again the single frame shot. It’s not part of the moving footage; it’s just the single shot ok. So if we continue please with 12, and then onto 13 where we’ll stop. Large version of the man said to be Wayne McDonald by the Prosecution. Now how many people can you see in the photograph? You know the longer you look at it, the more people you can see. At 9.00 within the blue circle. That we say is a man; agreed to by DC Houston, as being the man who was in; he said he’d seen in the brown jacket. So that is male number 1. JUDGE GILBART: That isn’t what he said. MR KEARL: Pardon? JUDGE GILBART: That’s not what he said. MR KEARL: In answer to me it is.”
MR KEARL: Pardon? MR KEARL: In answer to me it is.”

MR KEARL: Pardon?

[35]Mr Kearl continued to address the jury. He wished to persuade them that there were 5 men at the back of the BMW when its boot was opened, since that would mean that any one of them, and not solely the appellant, could have taken the gun from the boot. The proceedings continued as follows:
“MR KEARL: If you can’t eliminate that, then how can you say that Mr. McDonald; if he was there; was the person who had the gun, rather than one of the others? Because you certainly can’t tell from that can you? Now, it’s worse than that. Because we then go onto the question of descriptions ... JUDGE GILBART: Mr. Kearl, before you move on I want the jury to withdraw. MR KEARL: Certainly.”
MR KEARL: Certainly.”[36]The jury then withdrew, and the judge raised with Mr Kearl the question whether he had an evidential basis for asserting that there were 5 men at the boot of the BMW. Understandably, Mr Kearl was unhappy to have been interrupted at the point when he was about to put the best defence point to the jury. He referred the judge to paragraph 4-367 of the then current edition of Archbold (paragraph 4-429 in the 2012 edition):
“Although it might exceptionally be necessary for a judge to interrupt a speech by counsel in the presence of the jury, it is generally preferable for him not do so; such interventions might disrupt the speaker's train of thought or inappropriately divert the attention of the jury; ideally, interventions for the purpose of clarifying or correcting something said, either by judge or counsel, should be made in the first instance in the absence of the jury and at a break in the proceedings.”
The judge said that he had waited until Mr Kearl had finished his point before asking the jury to withdraw.[37]The authority relied upon for the propositions in Archbold is R v Tuegel [2000] 2 Cr App R 361. The text in Archbold is in fact a quotation from the judgment of Rose LJ, the Vice-President of the Court of Appeal Criminal Division. We note that the interruptions in that case were not held to have affected the safety of the verdicts.[38]The judge should not have interrupted the closing speech for the appellant as he did. He could and should have raised the question whether it was open to the defence to assert that there were 5 men at the boot of the BMW at a natural break in the proceedings, or at the end of Mr Kearl’s address. Alternatively, he could have dealt with the point in his summing up. The interruptions risked giving the impression that Mr Kearl had sinned and been disciplined by the judge, and that might have reflected on the appellant himself.[39]As it happens, we do not think that the question whether five men seen at the back of the BMW was of any significance. It did not matter whether there were 5 or 4 or 3 men at the back of the car. What was significant was whether, as eye-witnesses said, two men had been at the boot and then walked to where the gun was fired, and that one of them had fired a gun, or whether those who had been at the car went to a location other than the firing point when the gun was fired. Given the poor quality of the external CCTV, and the other evidence to which we have referred, it was inevitable that the jury would prefer the eye-witness description of events.

The admission of telephone records

[40]The judge permitted the prosecution to adduce in evidence a document produced by Vodafone purporting to be a record of telephone calls made by the car phone of the BMW. The document was headed as an “intelligence only” document, rather than one produced for use in a criminal trial. It had clearly been produced from the original Vodafone computer records, which no longer existed. Although he referred to the relevant passage in Archbold dealing with computer records, the judge applied a hearsay test to the document, under section 114(1)(d) of the Criminal Justice Act 2003, in deciding to allow it to be adduced.[41]The appellant’s objection to the admission of this record, as we understand it, is that it was not shown that the accuracy of the document was sufficient for the purposes of a criminal trial.[42]We have no doubt that the document was correctly admitted. The original print out from the Vodafone computers would have been real evidence, rather than hearsay: R v Spiby [1990] 91 Cr App R 186. The only hearsay was the implicit statement that the document had been taken or copied from the computer entries. There was no reason to believe that the document, created for “intelligence purposes”, was any the less accurate than one prepared specifically for a trial. It would be an affront to our system of justice if such a document were excluded from consideration by a jury.[43]The relevance of this evidence is that it showed telephone calls between the BMW and the appellant’s then girlfriend, thus reinforcing the prosecution case that it was his car.[44]We mention that Mr Kearl accepted that this ground, if it stood alone, could not justify the quashing of the convictions. He was right to do so.

Bad faith

[45]It was alleged by the appellant, to put no finer point on it, that he had been framed by the police. The bases for this serious allegation, apart from his bare denial of his guilt, were:(1) The fact that the prosecution had originally informed the defence that there had been no identification procedures, and thus had not disclosed that, as was discovered during the trial, four eye-witnesses had viewed the CCTV recordings and failed to identify the appellant.(2) The fact that the records of those identification procedures had been lost.(3) The appellant’s contention that the tissue with his DNA had been “planted” in the boot of the BMW.(4) The fact that the exhibit book which recorded the movement of the piece of the tissue later found to contain his DNA had been lost. The exhibit book that had contained details of the disputed exhibit was the only exhibit book that had been lost. The police had recreated the missing exhibit book. It contained two blank entries, one in the sequential numbering immediately above and one immediately below the disputed exhibit. On the basis of these matters, it is also submitted that there was inadequate disclosure by the prosecution, or at least there could be no confidence that there had been proper disclosure.[46]The judge put the issue of bad faith squarely before the jury, and asked them to consider whether the matters to which the defence referred were to be explained by “conspiracy or cock-up”. Clearly, they took the view that they were to be explained by the considerable period of time since the offences and, as the judge put it, “cock-up”.[47]We see no defect in the judge’s summing up in this respect.

Conclusion on conviction

[48]The question for this Court is whether the appellant’s convictions are safe, notwithstanding the irregularities which we have found. We have no doubt that they are. The evidence against the appellant was overwhelming. We have summarised much of the evidence at paragraph 12 above. The appellant did not give evidence, and he therefore had no positive case other than that based on Mr Houston’s evidence, which itself depended on an interpretation of very unclear external CCTV. We have to say that as the argument before us on behalf of the appellant progressed, we became more convinced of the correctness of the jury’s verdicts.[49]It follows that the appeal against conviction will be dismissed.

Sentence

[50]On behalf of the appellant, it is submitted that the minimum term imposed by the judge failed to take account of the principle of totality, or the fact that 10 years had passed since the offences.[51]It is accepted that these two attempted murders, committed with a firearm, with no sensible provocation, fired in a public area outside a night club, and endangering the lives of people who were entirely innocent, were extremely serious offences. The possession of a second firearm is also of concern. We consider that the sentence imposed was fully justified. The appeal against sentence will also be dismissed.