Williams, R v [2012] EWCA Crim 264

Case No 2011/3962/D1

[2012] EWCA Crim 264

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM INNER LONDON CROWN COURT

Her Honour Judge Lees

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/02/2012

Before

LORD JUSTICE RICHARDS

MR JUSTICE FIELD

MR JUSTICE OPENSHAW

Between

ReginaRespondent

Michael WilliamsAppellant

Michael Lavers (instructed by EBR Attridge) for Appellant

Peter Pride (instructed by Crown Prosecution Service) for Crown

Hearing Hearing date : 3 February 2012

Judgment

Lord Justice Richards :

[1]On 20 June 2011 in the Crown Court at Inner London, after a trial before Her Honour Judge Lees and a jury, the appellant was convicted of offences of wounding with intent, aggravated burglary and possessing a firearm at the time of committing an offence. On 30 September 2011 he was sentenced to concurrent sentences of imprisonment for public protection. He now appeals against conviction.

Factual background

[2]The charges arose out of an incident on 20 October 2010 when Mr Timothy Gabadan returned to his home address in a flat at 225 Streatham High Road between 8.30 and 9.00 in the evening. Gabadan’s account was that as he put his key in the door, four men attacked him from behind. He was pushed into the flat and placed onto the floor of a bedroom by two of the men, while the other two searched the flat. One of the men holding him down had a gun. One of the other men also had a gun. In response to demands for money, Gabadan took £550 from his pocket and gave it to one of the men. Left alone for a moment in the bedroom, Gabadan attempted to arm himself with a Samurai sword. As he got up from the floor he was shot in the leg by one of the men. Undaunted, he got his Samurai sword from a window ledge and struck on the head the man who had shot him. He then gave chase as the four men fled. Three of the men managed to run away. Gabadan caught up with the fourth, identified as the appellant, and hit him several times with the Samurai sword. This part of the incident was captured on CCTV.

[3]Despite suffering from serious injuries to the head, the appellant managed to make his way to nearby Bournevale Road where, with the assistance of a passer-by, he called the emergency services. He was attended by police and ambulance, treated at the scene and taken to St George’s Hospital. It was found in due course that he had suffered six wounds to the face and head, consistent with the use of the sword.

[4]Gabadan returned to his flat where, with the assistance of a neighbour, he too called the emergency services, who attended the flat. He was taken to King’s College Hospital. On the agreed medical evidence he was found to have sustained a puncture wound to the right thigh which had the appearance of the entry wound of a gunshot.

[5]The prosecution case was that the appellant was the person who had shot Gabadan. Reliance was placed on two main pieces of evidence. One was that the appellant had been found nearby with significant injuries, consistent with having been caused by the Samurai sword, and Gabadan’s account was that he had used the sword to injure the person who had shot him. The appellant did not dispute that his injuries had been caused by the sword, though his own account, as we will explain further in a moment, was that he had not been inside the flat and had not shot Gabadan and that all the injuries sustained by him had been received outside the flat.

[6]The second main piece of evidence relied on was that the appellant could be seen on the CCTV footage holding an item which resembled a handgun and aiming it at Gabadan when Gabadan caught up with him, all of which was entirely consistent with Gabadan’s account. Eventually, as we will also explain, the appellant admitted that the item was indeed a gun of some sort but he did not accept that it was a firearm capable of firing bullets or that he had fired any shot with it. Relevant to that point was the discovery of an item identified as the grip plate of a pistol at the place in the street where the appellant could be seen on the CCTV getting to his feet after he had been struck with the sword. The defence contended that the grip plate must have fallen from the gun that the appellant had been holding, and that it came from a pistol of a type designed to fire air-gun pellets and incapable of firing the bullet with which Gabadan had been shot.

[7]Gabadan was the principal witness for the Crown. He gave detailed evidence along the lines we have outlined. He said that he did not know any of the four men who entered his flat and he had no idea why he had been subjected to a random attack. One of the issues at the trial was whether he was being truthful about the background to the incident. Even the prosecution voiced doubts about this. The defence relied on a body of telephone evidence as undermining his evidence that he did not know the men and that they entered his flat as trespassers, and thereby as affecting his credibility more generally about the nature of the incident.

[8]The appellant gave evidence in his own defence. The account he gave was that he did not know Gabadan but on the evening in question he was with three men who were friends or associates of Gabadan; their street names were Touch, Flames and D-Bro. Gabadan was a drug dealer who sold drugs on behalf of Touch. The appellant went to obtain skunk from Gabadan through the agency of Touch. The meeting was pre-arranged by telephone. When the group arrived at the block of flats where Gabadan lived, Gabadan was telephoned and came downstairs in order to let them into the block. The three men were then invited into Gabadan’s flat, but the appellant remained in the communal area of the flats because Gabadan was suspicious about letting strangers into his flat. The appellant was therefore not privy to what occurred inside the flat.

[9]The appellant said that after 10-15 minutes the three men came back downstairs, pursued by Gabadan. They collided with the appellant, causing everyone to fall over and the appellant to dislocate his shoulder. While he attempted to get to his feet he was struck on the head by a sword that Gabadan was wielding. He noticed a gun on the floor, of which he had previously been unaware and which must have been dropped during the collision. He picked the gun up and ran off. The other three men managed to escape but the appellant was impeded by his injuries and Gabadan caught up with him. In those circumstances he pointed the gun at Gabadan in order to frighten him. Gabadan, however, proceeded to attack him with the sword. The appellant dropped the gun. Gabadan picked it up and went back towards his flat; whilst the appellant made his way to the road where the emergency services were called.

[10]The appellant alleged that his injuries had been unlawfully inflicted upon him by Gabadan and that, in order to avoid being prosecuted himself, Gabadan had falsely implicated the appellant as the person who had shot him in the leg, knowing full well that the real gunman had made his escape and that the appellant had not even entered his flat. Gabadan had also deliberately misled the police and the jury in suggesting that he did not know the identities of those who had escaped.

[11]That account, given by him at trial, differed materially from the accounts he had given previously to the police and in his defence case statements. The prosecution contended that he had told a series of lies which affected his credibility and provided additional support for the prosecution case. The first of the accounts he gave was when he was spoken to in hospital by a police officer, DC Chinn, a few hours after the incident. The principal grounds of appeal relate to the admission of that conversation into evidence and the way it was dealt with by the judge.

The grounds of appeal

[12]The grounds of appeal as pursued at the hearing before us are, in summary, that:(1) The conversation between DC Chinn and the appellant should have been excluded by the judge under s.78 of the Police and Criminal Evidence Act 1984.

(2) The judge’s directions to the jury relating to breaches of the Codes of Practice were defective.

(3) The judge failed to direct the jury about the conversation with DC Chinn in a fair and/or coherent manner.

(4) The judge failed adequately to sum up the telephone evidence and to explain its relevance to the question whether the men entered Gabadan’s flat as trespassers.

(5) The judge failed adequately to explain the importance of the finding of the pistol grip plate and how this might impact on whether the appellant had been correctly identified as the person who shot Gabadan.

Ground 1: the admission of DC Chinn’s evidence

[13]On 2 June 2011, just before the commencement of the trial, the prosecution served a statement from DC Chinn under cover of a notice of additional evidence. The statement was dated 12 April 2011. It read:

“On 20th October 2010 I was on duty in plain clothes attached to Night Duty CID. On this date I had cause to visit a Mr Williams in St George’s Hospital. He had head injuries as a result of being involved in an incident earlier in the evening at 225 Streatham High Road / Bournevale Road, SW16. I asked him for an account of what had happened on the night and how he came to have the injuries. He gave me an account and I took notes, which I exhibit …. He essentially said the following: States he had left his girlfriend’s house in Greyhound Lane and walked down the road to his friends’ house (Ricky & Garfield) which is near the Police Station. He stated that he was walking along when he was approached by 2 vehicles – a silver Astra (V or W registration) and a green Ford Focus. He states that there were 4 black males (Jamaican appearance) in the Astra and 2 males in the Focus. He states that the two males got out of the Ford Focus and he saw one of them had a ‘shiny thing’ in his hand. One of the males said ‘Pussy, you think me never could have catch you’. He heard another male say ‘Mash him up’. They then all got out of the cars and they then attacked him. I remember that Mr Williams made mention of buying a mauve coloured R registration Astra in July 2010 from someone called Leroy and that he left the car by a one way system and he owed Leroy money and this could be the cause of the attack. I recall that a Firearms Discharge Residue kit was taken from him by another officer and that he was later arrested for Attempted Murder.”

[14]As we have already indicated, the account said to have been given by the appellant to DC Chinn was wholly inconsistent with the appellant’s case at trial and was one of the matters on which the prosecution sought to rely as showing that the appellant had told deliberate lies to cover up his involvement in the shooting of Gabadan.

[15]The defence applied for the evidence of DC Chinn to be excluded under s.78 of PACE 1984 on the ground, first, that there had been various breaches of the Codes of Practice; and secondly, that it was unfair to admit the appellant’s alleged answers having regard to his physical and mental condition at the time of the conversation.

[16]As to the Codes, the principal submission was that at the time the appellant was questioned he was already a suspect in respect of the shooting and ought therefore to have been cautioned in accordance with Code C:10.1, which provides that “[a] person whom there are grounds to suspect of an offence … must be cautioned before any questions about an offence … are put to them if either the suspect’s answers or silence … may be given in evidence to a court in a prosecution”. If that submission was correct, then what took place constituted an “interview” within Code C:11.1 and there were, additionally, breaches of the requirements of C:11.7, C:11.9 and C.11.11 concerning the making of an accurate record of each interview, the timing and signing of the written record, and the giving of an opportunity to the person interviewed to read the interview record and to sign it as correct or to indicate how he considers it inaccurate.

[17]It was contended in the alternative that, if DC Chinn’s questioning of the appellant was properly conducted without a caution, other breaches of the Codes of Practice occurred thereafter. Following the questioning, DC Chinn left the hospital, but she returned later with PC Flint who arrested the appellant. The appellant was then formally interviewed under caution on 23 October 2010. It was submitted that there had been a breach of Code C:11.13, in that once the appellant became a suspect, a written record, timed and signed by the maker, should have been made of his comments and he should have been given the opportunity to read that record and to sign it as correct or to indicate how he considered it inaccurate; and a breach of Code C:11.4, in that the account given by him to DC Chinn was a “significant statement” which should have been put to him for comment at the beginning of his formal police interview after he had been cautioned.

[18]It was accepted that DC Chinn did not in fact caution the appellant before questioning him in the hospital. She gave evidence on a voirdire (and thereafter before the jury) that when she questioned him she was treating him as the victim of a stabbing, not as a suspect; and that the position altered only later that night when, upon receiving further information as the police pieced together what had happened, they linked the two crime scenes and arrested the appellant.

[19]The judge ruled that the evidence should be allowed in. She provided written reasons for that ruling after the end of the trial. Those reasons included the following:

“… When she [DC Chinn] first spoke to him [the appellant] I accept that she too regarded him not as a suspect of any kind, but as the victim of a stabbing. That position altered later on the same night when, upon receiving further information as the police pieced together what in fact had happened, they linked the 2 crime scenes in Streatham and arrested the defendant. As such, although the Police Codes of Conduct did not apply initially because I find that she regarded Mr Williams only as a victim and so a potential witness, they did apply after he became a suspect. The notebook in which she jotted down the information the defendant gave her in answer to her questions was not offered to him to sign either then or in his subsequent police interview; this was in breach of the Codes. In my view, having heard the evidence from DC Chinn, this was not borne out of any bad faith but out of a lack of experience or possibly realisation of the significance then of the matters the Defendant had told her; it is perhaps significant to note that she did nothing with the notes in terms of pursuing the prosecution case against the Defendant but that when their significance and admissibility in the altered circumstances was appreciated not by her but by prosecuting counsel and/or the OIC, they were served on those defending him as material sought to be used against Mr Williams. There has been in my judgment at least one breach and possibly two of the Codes, in that the notes should have been offered to Mr Williams to sign and certainly should have been put to him in his interview. In that interview he chose to answer questions and so it is reasonable to suppose he would have answered questions about DC Chinn’s notes as well. However, that does not make them automatically inadmissible; there is a balancing exercise to be undertaken in respect of the fairness of their admissibility. In my judgment in this case fairness to both sides can be achieved by the jury being given a full and careful direction about the police failure to follow the Codes, telling them to put the evidence to one side in the event that they consider it fair to do so in all the circumstances, including not only the breach/es but the Defendant’s condition at the time.”

[20]The reference to the appellant’s condition brings in the other basis on which the defence sought to have DC Chinn’s evidence excluded. We will come back to that after considering the issue raised in relation to the Codes of Practice.

[21]It is evident from the judge’s reasons that her decision that there was no breach of Code C:10.1 was based on her acceptance of the evidence that DCChinn regarded the appellant as a victim, not as a suspect, at the time when she questioned him in hospital. Mr Lavers submitted that the judge thereby erred in law by applying a subjective test, whereas the question whether there are reasonable grounds to suspect a person, so as to require a caution to be given, must be determined objectively. That the test is objective is supported by R v Nelson and Rose

[1998] 2 Cr App R 399

at 404D:

“The appropriate time to administer the caution in a situation such as this is when, on an objective test, there are grounds for suspicion, falling short of evidence which would support a prima facie finding of guilt, not simply that an offence has been committed, but committed by the person who is being questioned.”

[22]An objective test was applied in R v Hawkins

[2005] EWCA Crim 1723

, at [27]-[29]. That was a manslaughter case arising out of an explosion on a garage forecourt. The appellant had been taken to hospital with serious burns. The court held that a short conversation between him and a fire service investigating officer in the ambulance was sufficient on any objective test to cause him to be a suspect and that there should then have been liaison with the police authorities before a police officer interviewed him in hospital and did so without administering a caution. A view should have been formed that he was a suspect. The court also attached importance to his physical condition at the time. It held that the conversation with the police officer should not have been admitted.

[23]It seems to us that Mr Lavers is clearly correct that an objective test should have been applied and that the judge was wrong to base her decision solely on how DC Chinn regarded the matter. Mr Pride, on behalf of the Crown, did not contend otherwise.

[24]It therefore becomes necessary to consider whether, on an objective test, there were reasonable grounds to suspect the appellant at the time when DC Chinn spoke to him in hospital. As to that, Mr Lavers submitted that reasonable grounds plainly existed, whereas Mr Pride suggested that the position was too confused to enable such a conclusion to be drawn. Mr Pride also drew attention to observations in R v James [1996] Crim LR 650 that because the existence of “reasonable grounds” is the trigger not only for the protective device of the caution but also for the intrusive power of arrest, “that moment in time should not be artificially accelerated”.

[25]Mr Lavers’s written submissions examined the various strands in the evidence in some detail. The main points are these:(1) PC Larner and PC Flint, the first officers to arrive at Bournevale Road where the appellant was found injured, arrived at 21.52. The appellant was taken to hospital, accompanied by PC Larner, at 22.09. Both officers said they were alive to the possibility that the incidents giving rise to the two 999 calls (that relating to Bournevale Road and that relating to Gabadan’s flat at 225 Streatham High Road) might be linked with each other.

(2) The CAD printouts for the 999 calls show that the two scenes were being linked by 22.51. At 22.57 PC Flint (who had remained at the Bournevale Road crime scene) recorded that the appellant had on one left shoe and that he might be the suspect for the other matter; but Inspector Sutherland responded:

“Noted. May be suspect or victim unable to confirm at this stage”

. PC Flint gave evidence that he had noticed that the appellant was wearing only a left trainer when he was taken away in an ambulance. Following an enquiry by an officer at 225 Streatham High Road, PC Flint checked with PC Larner, who was standing guard over the appellant at the hospital and confirmed that the appellant’s right trainer was missing. PC Flint then described the appellant’s left trainer to officers at 225 Streatham High Road and was informed that there was a right trainer of the identical description at that location. What had in fact happened is that a right trainer, subsequently shown to have belonged to the appellant, had been found at the bottom of the stairs leading from the basement of the block of flats. This passage of enquiry is likely to have corresponded with the CAD entry at 22.57 to which we have referred. (3) DC Chinn was shown as entering the Bournevale Road crime scene at 22.55, which is said to make it likely that she was present when the appellant’s connection through the trainer with events at 225 Streatham High Road was established. DC Chinn remained at the Bournevale Road crime scene until 23.30 and then drove immediately with TDC Turton to St George’s Hospital where the appellant was. (4) The evidence of PC Larner, the officer guarding the appellant at the hospital, did not refer to his conversation with PC Flint about the trainer but did describe a call he had received from a PS Campbell. He said in his witness statement:

“Whilst at the hospital PS … Campbell contacted me and said the male [the appellant] was now a suspect for the earlier shooting as his right trainer had been found at the scene and he matched the description given by the victim. The victim also stated that he stabbed the suspect in the face before he got away. Some time later two female officers from CID attended to take an account from the male [the appellant]”

. There was no dispute that those two female officers were DC Chinn and TDC Turton. (5) In evidence, both DC Chinn and PC Larner accepted that they had spoken to each other before DC Chinn questioned the appellant. Neither had made a note of the conversation. PC Larner recollected that he had informed DC Chinn about the appellant’s medical condition. He accepted that at the time he had spoken to DC Chinn the appellant was already a suspect and he said that he would not have questioned the appellant in those circumstances without cautioning him (and would not have done so in any event because of the appellant’s medical condition). DC Chinn was unable to remember anything about her conversation with PC Larner.

[26]Mr Pride pointed to various other details of the evidence as showing, in his submission, that whilst the link between the two crime scenes gradually became apparent, what had occurred was still not clear by the time of DC Chinn’s questioning of the appellant. For example, there was a CAD entry at 00.35 that “I have just been informed by the victim here [i.e. Gabadan] that he knifed the suspect twice to the head and that he should have significant injuries from it”.

[27]It is unfortunate that the judge concentrated on DC Chinn’s subjective view of the matter and did not examine the other evidence relevant to the question whether, on an objective test, there were reasonable grounds to suspect the appellant at the relevant time. We would have been assisted by her evaluation of the evidence she had heard from the officers concerned on the voir dire. Doing the best we can on the information supplied to us by counsel, however, we have come to the conclusion that sufficient information was in the possession of the police by the relevant time, and in particular that sufficient linkage between the two crimes had been established by that time, to give rise to reasonable grounds to suspect the appellant of involvement in the attack on Gabadan. We accept that there was still a degree of confusion and we do not underestimate the difficulties for the police in piecing together the various bits of information emerging in the course of the evening. In our judgment, however, enough was known to warrant treating the appellant as a suspect and cautioning him before asking him questions. The linkage established through the appellant’s missing trainer and the presence of a matching trainer at the 225 Streatham High Road crime scene was a point of particular significance and had evidently been perceived as such by at least some officers. It may be that, through inadequate liaison or briefing, DC Chinn was not alerted to the point. On an objective test, however, that is no answer.

[28]It follows that the questioning of the appellant by DC Chinn in hospital was conducted in breach of Code C:10.1 and that this also resulted in breaches of Code C:11.7, C:11.9 and C.11.11 as contended on behalf of the appellant. Since the judge proceeded on the basis that there had been no such breaches, her exercise of discretion under s.78 of the Police and Criminal Evidence Act 1984 was necessarily flawed. In our judgment, the breaches of the Code of Practice were sufficiently serious that the evidence of DC Chinn ought not to have been admitted.

[29]In those circumstances we do need to deal at length with the alternative submission that the appellant’s physical and mental condition at the time of questioning was such as to make it unfair for the evidence to be admitted. But we propose to deal with it briefly because of its possible relevance to our overall assessment of the safety of the conviction.

[30]The appellant had a number of serious injuries to his head: six separate wounds were later repaired, and his left parietal bone and left zygomatic arch were both fractured. He also had a dislocated shoulder. At the time when he was questioned by DC Chinn he was still in the resuscitation unit; his wounds had not yet been treated; and he had recently been sedated for the purpose of his shoulder relocation. In addition to the hospital notes and evidence from a junior doctor, there was agreed evidence from Mr Stewart, a consultant in the maxio facial unit, that the appellant was fit to be interviewed but “would not necessarily be able to give logical responses and could be confused” and that “it would be important to take the responses given in the context of the situation and take responses as not being 100% reliable”. Mr Stewart regarded the Glasgow Coma Score as the most reliable indicator of consciousness and observed that the appellant’s reading of 14/15 was near normal. DC Chinn gave evidence on the voirdire that the appellant’s initial responses to her questions were “rather confused and garbled” (she described them as “somewhat confused” when later giving evidence before the jury).

[31]The judge gave these reasons for rejecting the argument that the appellant’s medical condition was such as to make it unfair for DC Chinn’s to be adduced:

“… I have seen the relevant notes, heard evidence from a staff grade doctor and more significantly a lengthy admission has been drafted after both counsel have had the opportunity to speak to a consultant at the hospital in which he was first treated. It is plain that whilst it is impossible to be precise about the effects upon him [t]heir ambit is limited to that set out in the agreed admission. Perhaps one of the most significant factors is the fact that he scored 14 out of a possible 15 of the Glasgow Coma Scale. Again it seems to me that this argument goes to weight that can be attached to the evidence rather than its admissibility. Armed with this agreed medical opinion, the defendant’s position is safeguarded so far as the jury are concerned and, given a fair and careful direction, they are able to properly assess this evidence.”

[32]The judge was entitled to take the view that the appellant was not in such a poor condition as to make it unfair to adduce DC Chinn’s evidence of her questioning of him. The significance of his condition for the reliability of the answers he gave was a matter properly left for assessment by the jury. Whether the judge dealt adequately with the matter when it came to her summing up is something we will need to consider in relation to the third ground of appeal, again because of its relevance to our overall assessment of the safety of the conviction. So far as the first ground of appeal is concerned, however, we take the view that DC Chinn’s evidence should have been excluded because of the breaches of the Code of Practice, not because of the appellant’s medical condition.

Grounds 2 and 3: the judge’s directions in relation to the evidence of DC Chinn

[33]Ground 2 relates to the directions that the judge gave with regard to breaches of the Codes of Practice in respect of DC Chinn’s evidence. Ground 3 relates more generally to the adequacy of her summing up in respect of that evidence. In the light of our conclusion that the evidence should not have been admitted at all, we need consider these matters only for the purpose of determining, as part of our overall assessment of the safety of the conviction, how much significance the evidence may have had in the eyes of the jury.

[34]The relevant part of the judge’s summing up was lengthy. It started with just over two pages (tr. 96H-99A) in which the judge introduced DC Chinn’s evidence and read the officer’s statement. It then referred back to evidence concerning the scenes of crime officers and broke off, rather surprisingly, to give a full direction on the status of expert evidence. On coming back to DC Chinn (at tr.103D), it referred to the officer’s attendance at the Bournevale Road crime scene and at St George’s Hospital, and reminded the jury of the officer’s evidence that her statement contained a verbatim account of what the appellant had said in hospital. The judge continued (at tr. 105F-109F):

“As you know, the prosecution rely on what they say are a number of different versions of events put forward by the defendant at different times. In relation to what he is alleged by her to have said to DC Chinn at the hospital, the defence point out that not only was he being treated for severe wounds to his head at the time, the police failed to remind him of what he is alleged to have said to DC Chinn, either there and then at the hospital when he became a suspect in the shooting, or at least when they later interviewed him, and asked him whether he agreed with her notes or not. … When the police arrest a person and take him into custody, they are bound by a comprehensive set of rules designed to protect the interests of the suspect. The police were in breach of these rules in one important respect, namely that they failed, as soon as was practicable, to provide the defendant with the opportunity to read the record or notes of conversation, to comment upon its accuracy and sign it if he agreed with it. So I direct you that there was a breach of the police codes of conduct in failing to offer DC Chinn’s notes to the defendant in his interview, and give him the chance at that stage to say if he agreed with them or not. This failure is, depending on your view, capable of affecting the reliability of the version of events the prosecution say the defendant first gave. The purpose of the rules that the defendant should be [given] the opportunity to comment on and sign the record is to protect the defendant from inaccuracies in it. The sooner any dispute about it is revealed, the better able you are to make an assessment as to whether it is reliable or not. Here the defendant chose not only to seek legal advice but to answer questions in his interview. It is perfectly reasonable, therefore, you may think, to assume that if he had been shown DC Chinn’s notes, he would have read them and said whether they were an accurate reflection of the conversation he had had with her, or at least comment on them. As you know, he says he cannot remember all of the conversation because of his [physical] state at the time. In considering whether it is fair for you to use this apparently different first version of events against the defendant you need to assess its reliability. In doing that you should bear in mind that not only was he badly injured and in hospital, having been sedated for those injuries, he was not given an opportunity to correct or challenge the notes when he should have been, that is to say in his police interview. If, but only if, you think it is right to do so, you are entitled to decide the defendant suffered, in the event, no actual disadvantage and you can have regard to the notes made by DC Chinn. It follows that the central issue for you to resolve is whether DC Chinn’s notes are accurate or not. When deciding that question you should firmly bear in mind the fact that the procedure designed to protect the defendant’s interests was not properly followed. Nevertheless, having taken into account that irregularity, if you are sure that DC Chinn is neither untruthful nor inaccurate and her written note is an accurate record of the defendant’s first version of what happened to him, then you are entitled to have regard to it in deciding whether he is guilty of the offence as charged.”

[35]Following an adjournment, the judge resumed (at tr. 110A-114B) with further details of DC Chinn’s evidence, including her evidence that the appellant was “somewhat confused” and that “it took quite a while to get the information out of him”, and of the appellant’s own evidence as to his limited recollection of the conversation.

[36]The passage we have quoted contained an elaborate direction in relation to breach of Code C:11.4, i.e. the requirement to put any “significant statement” to a defendant at the beginning of an interview under caution. It brought home clearly to the jury the need to bear in mind that the appellant was not given the early opportunity he should have had to read DC Chinn’s record of the conversation between them and to comment upon it. Nothing turns for present purposes on whether the judge should have directed the jury about other breaches of the Codes of Practice: we can concentrate on how the jury were in fact directed to approach the evidence.

[37]The judge’s directions also gave the jury a sufficiently clear reminder of the appellant’s evidence that he could not remember all of the conversation because of his physical state at the time, and directed them to bear in mind that he had been badly injured and had been sedated.

[38]The thrust of the directions was that the jury should bear those various matters in mind in assessing the reliability of DC Chinn’s notes as an accurate record of what the appellant had said: they were told that “if you are sure that DC Chinn is neither untruthful nor inaccurate and her written note is an accurate record of the defendant’s first version of what happened to him”, they were entitled to have regard to it in deciding whether he was guilty. But Mr Lavers submitted to us that this was to miss the real point. The issue for the jury was not the truthfulness of DC Chinn and whether her notes were an accurate record of what the appellant had actually said, but whether the notes were reliable in the sense of recording deliberate lies by the appellant, that is to say whether the jury could safely conclude that he meant to say what he was recorded as having said. The prosecution sought to rely on the account given by the appellant to DC Chinn as the first of a series of lying accounts. The appellant denied having told deliberate lies to DC Chinn, and he relied on his medical condition and breaches of the Codes of Practice as reasons why the account he was recorded as having given to her should not be so treated. It was only much later in the judge’s summing up that the issue of deliberate lies was dealt with, in terms that failed to link the point with the direction on the breach of the Code of Practice or the effect of the appellant’s medical condition.

[39]It was indeed considerably later (at tr. 142B) that the judge turned to the issue of lies. At that point she referred to the allegation that the appellant “lied to the police in hospital and gave a first false account in order to detract from his [own] involvement”. She then referred to the lies allegedly told by the appellant in interview and to the further allegedly false version of events given in the defence case statements. The assertions in interview on which she said the prosecution specifically relied were that he did not go inside the communal parts of 225 Streatham High Road, that he was not wearing gloves and that at no stage did he hold a gun, whereas in each case he gave a different account at trial. In his first defence case statement he again said he had not held a gun, whereas in the second defence case statement, after service of the CCTV evidence, he accepted he had held a gun but maintained it was not a firearm capable of firing bullets. The judge told the jury that they would “need to decide whether one or more of these alleged lies assists you in coming to a conclusion as to whether the defendant did indeed shoot Mr Gabadan, having entered his flat with others as a trespasser” (tr. 143B-C). She then gave a direction in conventional terms about the approach the jury should take in deciding what, if any, significance to attach to any lies they found the appellant to have made. In that context she gave examples of innocent reasons why a defendant may lie and reminded the jury that the appellant “told you that his memory was affected by the injuries that he had suffered and his memory came back in patches” (tr. 144C). At the very end of the direction (at tr. 145F-146B) she told the jury to consider two questions: first, whether the appellant “did in fact deliberately tell these lies”; secondly, if they were sure he did, why did he lie, and that it was only if they were sure that he did not lie for an innocent reason that his lies could be regarded as evidence going to prove his guilt.

[40]Looking at those directions as a whole, and in particular at the absence of any linkage in them between, on the one hand, the appellant’s medical condition in hospital and the breach of the Code of Practice and, on the other hand, the question whether the appellant’s account in hospital as recorded in DC Chinn’s notes contained deliberate lies, we consider there to be a real possibility that the jury may have found not only that the appellant gave DC Chinn the account recorded by her but also that it was a deliberately lying account (and the first of a number of deliberately lying accounts), and that they may have factored that into their consideration of whether to hold the appellant’s lies against him. DC Chinn’s evidence cannot therefore be discounted as having had no potential significance simply on the basis that, given the evidence of the appellant’s medical condition in hospital and the lengthy direction about breach of the Code of Practice, the jury would not have placed any weight on it at all.

[41]We will take that into account in our conclusions on the safety of the conviction. Before moving to those conclusions, however, we must deal with two further and distinct aspects of the summing up about which complaint is made.

Ground 4: the summing up of the telephone evidence

[42]Part of the defence case was that there had been no burglary at all and that Gabadan had lied in saying that he did not know any of the men who entered his flat and that they had pushed their way in. Reliance was placed on the telephone evidence as revealing, in summary, that(a) there had been calls between the number associated with Touch and one of Gabadan’s numbers, including a call at a time and within a cell site area consistent with the appellant’s case that Touch telephoned Gabadan on arrival at 225 Streatham High Road and that Gabadan came down to let them into the block of flats;

(b) Gabadan’s telephone had received text messages from D-Bro and Touch which were consistent with the appellant’s case that he had gone with those men and with Flames (the street name of Aaron Jones) to a pre-arranged meeting with Gabadan to buy drugs;

(c) the directory of one of Gabadan’s telephones contained four numbers for “Aaron”, yet Gabadan denied knowing Aaron Jones or anyone else by the name of Aaron;

(d) the directory of the same telephone contained a number stored under the name “D-Bro”, yet Gabadan denied knowing anyone by that name; and

(e) there were several text messages in both of Gabadan’s telephones which arguably demonstrated that he was involved in the supply of cannabis. It was said that this evidence undermined the credibility of Gabadan’s evidence about the background to the incident and therefore his credibility more generally, whilst being consistent with, and supportive of, the appellant’s own account..

[43]As a result of concerns raised by the prosecution as well as the defence as to whether Gabadan was being truthful about the background to the incident,

the judge gave the jury a specific direction on the point (tr. 13H-15B):

“You have been addressed on the basis that Mr Gabadan is an untruthful witness. Of course, if he is someone who you decide you cannot rely on for any matter, then you will reject his evidence in its entirety. On the other hand, you will remember that from the very outset of this trial the prosecution have acknowledged, realistically you might think, in the light of the mobile telephone evidence, that he may not be being entirely forthcoming about his connections to others or the reasons for the attack upon him, if you find indeed that there was an attack upon him. So you might wonder how you should regard his evidence. As with any witness, you need to be sure he is accurate and reliable about those matters which form part of each of the offences on your indictment. It may be you conclude he has his own reasons for covering up the reasons for the attack upon him, and of course you will want to scrutinise his evidence carefully. If, however, you are sure he is being both truthful and accurate about the facts which underpin the ingredients of the offences you have to decide on, as you consider them separately, then you can rely on that evidence in reaching your verdicts.”

[44]Mr Lavers submitted that the judge nevertheless failed to direct the jury adequately about the telephone evidence and in particular failed to explain its relevance to the disputed issue of whether the men entering Gabadan’s flat had done so as trespassers. She did not do enough to bring home to the jury the defence case on this point.

[45]We do not accept that submission. We are satisfied that the summing up as a whole did more than enough not only to ensure that the jury understood the defence case that the men entered the flat by invitation and not as trespassers, but also to remind them of the telephone evidence relevant to that issue and thereby to Gabadan’s wider credibility. Early in her summing up (at tr. 6D-E) she directed the jury that one of the central questions for them was:

“are we sure that the defendant and his associates [went] into flat 10 as trespassers and attempted to cause Mr Gabadan grievous bodily harm …?”

. She gave detailed directions about the ingredients of the offence of aggravated burglary (tr. 25G-27A). She referred a number of times to the question of trespass, reminding the jury that the prosecution case was that the men entered the flat as trespassers whereas the appellant’s case was that he had let them in willingly (see e.g. tr. 47H-48C, where the judge was commenting on Gabadan’s evidence). She reminded the jury at considerable length of the cross-examination of Gabadan by reference to the telephone evidence, taking in the main points in the evidence on which the defence relied (tr. 48C-56E). She followed this by an immediate reminder of Gabadan’s evidence that he did not let anyone into his flat and that the men pushed him in (tr. 56F-G). Later, in summarising the appellant’s evidence, she reminded the jury of his account that he went with the others to purchase cannabis from Gabadan, including what he had said about telephone calls and text messages and about Gabadan coming down to open the door of the block of flats (tr. 126E-133E).

[46]We are therefore satisfied that there was no material deficiency in the summing up on this issue.

Ground 5: the summing up in relation to the grip plate of the gun

[47]As we have mentioned at [6] above, at the place in the street where the appellant could be seen on the CCTV getting to his feet following Gabadan’s attack on him with the sword, there was found an item identified as the grip plate of a pistol. The defence contended that the grip plate must have fallen from the gun that the appellant had been holding. There was evidence from a firearms expert that the pistol from which the grip plate must have come was of a type designed to fire lead air-gun pellets, sometimes referred to as a BB gun. On the evidence at trial, Gabadan cannot have been shot by such a gun: the prosecution case was that a bullet head found together with a spent shell in the bedroom had been responsible for his injury, and that bullet must have come from a weapon other than a BB gun. All this was relied on as undermining Gabadan’s identification of the appellant as the person who had shot him.

[48]The complaint made in ground 5 is that the judge’s summing up failed to draw the jury’s attention to the evidence relating to the grip plate or to explain its significance in relation to the issue of identification.

[49]It is conceded by the prosecution that the summing up was silent on this matter. Mr Pride submitted, however, that this was not a crucial failing. He pointed to the evidence that two guns were involved in the incident: Gabadan referred to two men as having guns; and, in addition to the gun seen on the CCTV in the hands of the appellant, a gun of some sort was visible on the CCTV in the hands of one of the other men running away. No gun was recovered and the Crown was unable to say what had happened to the two guns. All that was known was that a grip plate of a BB gun was recovered from the location of Gabadan’s attack on the appellant in the street. But there was not a significant distance between that location and the route taken by the other men in running away. There was no evidence how the grip plate got there, i.e. whether it came from the gun held by the appellant or from the gun held by one of the other men or was unrelated to this incident.

[50]We acknowledge that it might have been better for the judge to remind the jury of the evidence on this issue but we do not accept that her failure to do so was a material deficiency in the summing up. It may have been a possible inference that the grip plate came from the gun seen on the CCTV in the hands of the appellant, and on that basis the defence were entitled to deploy the point in the way we have indicated. The evidence on the point was, however, very limited and unsatisfactory, and in our view the argument was not one to which any great weight could reasonably be attached. In all the circumstances, it was not essential for the judge to make reference to it in her summing up. So far as we are aware, her failure to make reference to it did not strike the defence at the time as such a material omission as to justify bringing it to her attention and asking her to deal with it.

[51]We are therefore satisfied that in relation to this issue, too, there was no material deficiency in the summing up.

The safety of the conviction

[52]Having dismissed the appellant’s case in relation to the separate matters raised under grounds 4 and 5, we must return to DC Chinn’s evidence of her conversation with the appellant in hospital and must consider whether the safety of the conviction is affected by the judge’s erroneous decision to allow the prosecution to adduce that evidence.

[53]As we have explained under grounds 2 and 3, there is a real possibility that the jury may have found that the appellant told deliberate lies in the account he gave DC Chinn in hospital and that they may have placed weight on that in assessing the appellant’s credibility.

[54]There were, however, other and more important matters upon which the prosecution relied as showing that the appellant had changed his account and had told deliberate lies on a number of key issues. He made assertions in interview and in his first defence statement that were plainly contradicted by the CCTV evidence or telephone evidence and/or were inconsistent with his account at trial. Thus, for example, it was only after service of the CCTV evidence that he accepted, in his second defence case statement, that he had held a gun, switching from his previous denial to the claim that the gun he held was not a firearm capable of firing bullets. We have referred at [39] above to other matters to which the judge drew specific attention in her direction on lies. Mr Pride’s written submissions detailed others which it is unnecessary to set out. Those various matters, taken together, could be expected to have carried much more weight with the jury than any deliberate lies they found that the appellant told in hospital; and they would have been extremely damaging to the appellant’s credibility even if DC Chinn’s evidence of the account given in hospital had been excluded. Realistically, the overall impact on the jury’s assessment of the appellant’s credibility would not have been materially different if DC Chinn’s evidence had been excluded.

[55]The case against the appellant was in any event a very strong one. Among the points to which Mr Pride drew our attention were these:(1) The CCTV footage captured four men walking to, and eventually entering, the block of flats at 225 Streatham High Road. The footage ran from 21:20 hours, when the men were seen entering the alleyway leading to the block, to 21:35 hours, when they were seen running back, chased by Gabadan. It showed the men hooded or wearing hats and walking in pairs. The appellant was in the second pair, a short distance behind the first pair. In the alleyway the second pair stopped abruptly and took a step back as they reached the coroner of a building: the Crown suggested that they were startled by a dustman. After a short delay and having peered around the corner, they continued their journey. The Crown suggested that the footage as a whole showed that the appellant was a full member of the group and knew where they were going.

(2) Gabadan, whose general credibility must have been accepted by the jury notwithstanding the doubts about his truthfulness in relation to the background to the incident, was very clear in his evidence that four men had entered his flat and were involved in the offences. He was also clear that it was the appellant (the man whom he attacked with the sword both inside the flat and in the street) who had shot him.

(3) Gabadan was also clear that the man he had hit with the sword in the flat no longer had a hat on when he chased him down the stairs. The appellant’s hat was found just outside the front door of Gabadan’s flat, on the first level. The presence of the hat at that location was, moreover, inconsistent with the appellant’s evidence that he had remained in the communal area of the block.

(4) The CCTV footage showed that the appellant was holding a gun as soon as he left the building. The gun was clearly visible, as were the gloves that the appellant was wearing. Gabadan explained that when he caught up with the appellant in the street the appellant aimed a gun at him and was trying to pull it back, and it was because he thought the gun was jamming that he hit the appellant a further four or five times with the sword. All this matched what could be seen in the footage.

(5) There was, admittedly, no forensic evidence to place the appellant inside the flat, and the appellant’s hat had no cuts to it or traces or blood on it although Gabadan gave evidence that the appellant was wearing it when he hit him over the head with the sword in the flat. But the clarity of Gabadan’s evidence and its consistency with, and the support gained from, the CCTV footage were such as to make the prosecution case compelling, even without regard to the further points telling so forcefully against the appellant’s own credibility.

[56]Taking everything into account, we are satisfied that the erroneous decision to allow DC Chinn’s evidence to be adduced had no effect on the safety of the appellant’s conviction. The case against him was indeed a very strong one. We have no doubt that the verdict would have been the same even if that evidence had not been adduced.

Conclusion

[57]For the reasons given, the appeal is dismissed.