Docherty -Puncheon, R. v [2013] EWCA Crim 2027

[2013] EWCA Crim 2027Case No 201206963/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 29th October 2013
Between
R E G I N ACrown
Strand
London, WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE ROYCE
MR JUSTICE POPPLEWELL
v
Between
CHRISTOPHER DOCHERTY-PUNCHEONComputer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)Mr J Wood QC & Mr N Leskin appeared for ApplicantMr R Latham QC appeared for CrownJ U D G M E N T
[1]PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 5th November 2012 in the Crown Court at Luton before Saunders J and a jury this applicant was convicted of murder. He was sentenced to imprisonment for life; the period of 32 years was specified as the minimum term under section 269(2) of the Criminal Justice Act 2003. He now renews his application for leave to appeal against conviction and sentence and for a representation order after refusal by the single judge.[2]The facts which formed the background to this case can be shortly summarised. On 7th January 2004, at the front door of his home in the village of Furneaux Pelham in Hertfordshire, Robert Workman, a retired colonel then 83 years of age was shot dead.[3]The applicant lived in a nearby village, Stocking Pelham, with his parents. He was a pest controller who was regularly seen driving a dark Range Rover N5050 although the registration plate had been adjusted so that part of it read "SOHO" (Soho). He had previously worked for the deceased and cleared a wasp nest.[4]The last person recorded to have seen the deceased alive was his home help, Josette Swanson; she had left him at approximately 7.35 pm and witnesses heard a bang at approximately 8.20 pm. Some of the witnesses identified the sound to have been a gunshot. A 999 call requesting an ambulance was made at 4.49 am the following morning from Braughing village; the caller was never identified. The address given was a name of the deceased's cottage (Holyoak Cottage) that was no longer used so that the call could not be followed up.[5]In the event, therefore, the body of the deceased was only discovered at 6.50am when Mrs Swanson attended, as usual, to help the Colonel at the start of the day. He was found at the front door and it was initially thought that he had died from natural causes with the result that the normal precautions and security surrounding a potential crime scene were not immediately taken. It was only when his body was moved that it was discovered that he had been shot. He had died from a single gunshot wound from a sawn-off shotgun.[6]The applicant was arrested at 4.00 pm on 8th January where he attended the police station on another matter. He was interviewed and in a prepared statement he accepted that he had driven through Furneaux Pelham but had only stopped to take his jacket off. He accepted that he had worked for the deceased but last in November 2003 and he had not done so since. No forensic evidence linked the applicant to the scene. There was some shotgun residue in his vehicle but the presence of such residue would have been common in the area. As a result, in the absence of evidence, he was not charged.[7]The story then moves forward to 1st December 2004 when a traveller, Fred Moss, was reported missing. Cutting a long story short, in February 2006, the applicant was tried and convicted of his murder in the name of Christopher Nudds: he was sentenced to life imprisonment with a specified minimum term of 30 years less time spent on remand. It is important to record that an application for leave to appeal against conviction was lodged and refused in 2008: see [2008] EWCA Crim 148. Evidence called at that trial included evidence of the confessions made by the applicant to a man by the name of Darren Horner, another inmate with whom he shared a sell. The applicant, so it is alleged, had told Horner that he had killed Moss because he had known too much about his killing of the deceased having been extorting money from him.[8]Unknown to the applicant or his legal advisers, towards the end of that trial Horner was approached by a former police officer turned journalist, Peter Blexley, who taped Horner giving false information and demanding money. This information was passed to the police but was not available to the applicant when he appealed to the Court of Appeal. In 2010, a cold case review of the murder of Colonel Workman had led to the decision to charge the applicant with that offence, relying on the conviction for murder of Fred Moss as well as the evidence of Horner and another inmate, John Horn. In the context of this prosecution, the Blexley material regarding Horner was served. That led to applications to stay the proceedings for abuse of process and to adjourn the hearing pending a decision by the Criminal Cases Review Commission whether to refer the applicant's conviction in respect of the murder of Fred Moss back to the Court of Appeal. In the event, the CCRC declined to refer the case and the applicant was tried in relation to the second allegation of murder.[9]At trial, following rulings of the trial judge reviewing and confirming those of Cooke J, who had heard an abuse of process application, the conviction and agreed facts in respect of the murder of Fred Moss were admitted. This was on the grounds not only of propensity but also that, according to the statements of Horner and Horn, the killings were linked. Further, it potentially lent credibility to the account provided by Horner. Evidence was also admitted of the appellant's possession of a sawn-off shotgun and a sawn-off .22.[10]It is unnecessary to rehearse the evidence in any detail. Suffice it to say that Josette Swanson spoke of the applicant having undertaken ongoing work for the deceased and there was evidence from Gary Chambers that the applicant's Range Rover "SOHO" was seen in the vicinity of Furneaux Pelham at approximately 9.00 pm on the night concerned; the prosecution case was that the vehicle placed the applicant in the vicinity at the relevant time and if correct, contradicted the applicant's alibi that he had been home all evening. A further prosecution witness gave evidence that a dark Range Rover had been stationary next to the relevant telephone box from which the emergency services were called at approximately 4.49 am. An officer reported a conversation with the applicant that he had sought to account for his movements and telephone evidence (of the applicant telephoning his land line). That evidence was also produced and relied upon as capable of contradicting that alibi.[11]We turn to the evidence of the cell confessions which, as the learned judge made clear during the course of his summing-up, always require the most careful scrutiny. Darren Horner, who had, of course, given evidence in an earlier murder trial, said that whilst in prison he had shared a cell with the applicant and that the applicant had confessed to killing the deceased, with whom he had engaged in a casual homosexual relationship. He had killed him for money. The prosecution called further confession evidence from John Horn who later shared a prison cell. The applicant suspected that Horner had assisted the police and tried to enlist him, so Horner alleged, in undermining Horner's evidence. But to Horn also it was alleged that he had confessed both murders.[12]The applicant denied this offence of murder. In short, he gave an account that he had worked for the deceased but not recently to his murder. He denied being involved in any relationship with him. He provided evidence of alibi consistent with his prepared statement. That day he had collected friends from Heathrow Airport and driven them to Norfolk where they arrived at midday. He had returned home and had taken his dogs out in the Range Rover. On the way back from their exercise he had stopped in Furneaux Pelham to remove his jacket. He had reached home by 6.00 pm. His mother and stepfather were at home watching the television. He had not left home thereafter.[13]As for the evidence of Swanson, Chambers, Horner and Horn, they had all made statements in which they had not given the information relied upon at all or in the same detail. Mr Wood relies in particular upon assertions in the earlier interviews of Horner in which he said that the applicant "went up to the line" but made no specific express admission of murder.[14]In any event the defence case throughout was that each of these witnesses was unreliable, inconsistent and in the case of Horner and Horn utterly untruthful. The issue for the 12 jurors therefore was one for which they were admirably suited: based on their assessment of the witnesses and the evidence, were they sure the applicant had shot the deceased, intending at the time to cause death or really serious injury.[15]This appeal is mounted on one ground only, that is to say that the conviction is unsafe because the judge failed to direct the jury as to the evidential status of prior inconsistent statements and the proper weight which they could give them. Mr Wood QC, to whom we are grateful, appearing pro bono in support of the application, argues that its significance and impact is underlined in light of other uncertainties surrounding the evidence. In particular, he relied on the risk that the jury gave undue weight to Horner's evidence in relation to Moss and the horrific circumstances of that killing and believed that the applicant must have told Horner a number of details about the Moss killing, including the location of the hacksaw and the knife, such that if they concluded Horner was telling the truth about Moss he must have been telling the truth about the Colonel.[16]Mr Wood adds that Horner, whilst he was sharing a cell with the applicant, gave very detailed accounts as to what the applicant was saying about the Moss murder but very little detail as to the Colonel's murder and details which he did give at the time that he was sharing a cell with the applicant were incorrect in a number of very important ways. He added to those details 10 weeks later, after he had left the applicant's company, which details also were factually wrong or could have been gleaned from reports in the media. Furthermore, he argued Horn's accounts were wholly inconsistent with Horner and developed and altered. He relies, as we have said, in particular on the proposition that Horner asserted at the time; that is to say, in December and January 2005, that he came up to the line but did not actually make an expressed admission. The admissions were implicit only.[17]The issue of law can be simply stated. Josette Swanson, the housekeeper, Gary Chambers, Horner and Horn had all made statements which did not contain the detail which they later included in other statements which, as a result, Mr Wood contends were inconsistent. Each gave evidence and their earlier statements were put to them at length. Each of those earlier statements was admitted or proved. He argues that section 119 of the Criminal Justice Act 2003 made these statements evidence in the proceedings although in no instance were they put in a physical form before the jury and the jury were never directed to this effect. Neither was any application made to the judge to put the statements formally into evidence or to accord them a status other than as material which was used by the jury to assess the present credibility of the relevant witnesses. Further, it is worth adding that the learned judge shared all his directions of law with counsel and no submission was made to the effect that he had failed in such a material respect or at all. Mr Wood recognises the validity of this point, identifying that it occurred to him only after the conclusion of the trial.[18]Section 119(1) of the Criminal

Justice Act 2003 headed "Inconsistent statements" provides as follows:

"(1) If in criminal proceedings a person gives oral evidence and— (a) he admits making a previous inconsistent statement, or (b) a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c. 18), the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible."
[19]The nature of a statement is defined by 115(2) of the Act as:
"...any representation of fact or opinion made by a person by whatever means ...."
Mr Latham QC, for the Crown, in his written argument makes the point that it is important to distinguish between a statement so defined and the looser meaning attached to the same words, namely a written account given (often to the authorities in the course of investigation) concerning the events giving rise to a trial. Failure in a statement to mention a particular fact which a witness later does mention does not necessarily amount to previous inconsistent statement within the meaning of section 119, unless the failure to mention that fact is equivalent of a positive statement to the opposite effect.[20]By way of example, a positive statement by an eyewitness that a murder had been committed by a specified number of named individuals, with no mention of the defendant, would be inconsistent with a later statement as to that defendant's involvement because it is the equivalent of a positive statement that he was not present. On the other hand, failure to mention an incidental detail (to take the example relating to Mrs Swanson) to the effect the deceased was in a fearful state of mind several hours prior to his murder, does not make the earlier statement inconsistent. It would be absurd if the failure to mention that fact meant the jury had to be told that there was an evidential basis for concluding that the deceased was calm at the time. Taking another example, that is to say Mr Chambers' evidence about the car with the registration plates SOHO, the failure to mention that fact in an earlier statement is silent as to the identity of the car and not evidence other than as an issue for the jury to resolve as to credibility in the case of Mr Chambers, when he later makes a statement and gives evidence that he saw the car SOHO on the relevant night. That is how the judge dealt with the evidence, wholly without objection by extremely experienced leading counsel.[21]It is unnecessary to go through the extremely detailed analysis of the ways in which the earlier statements of the witnesses about whom Mr Wood complains differed from what they later said. In relation to Horner and Horn the primary focus advanced by Mr Wood this morning has been on the assertion that the applicant "is right on the line" but had therefore not specifically and explicitly confessed as inconsistent with Horner's later evidence that he had indeed confessed. Save for that example, the other examples identified in the papers are of failures to mention incidental details rather than specific assertions.[22]The fact however is that implicitly, if not explicitly, both spoke of the applicant's admissions to murder and both were challenged root and branch. Mr Wood relies upon the decision in R v Billingham [2009] EWCA Crim 19, in which this court analysed the impact of section 119 and the failure to direct the jury in that case as to the evidential effect of the previous statements of two witnesses. Stanley Burnton LJ observed at paragraph 62:
"... it is by no means easy to direct a jury on the effect of section 119 without causing confusion. A jury is entitled to reject a statement in evidence, and to accord it no weight at all, because they do not consider it to be true. That may be because of its inconsistency with previous statements or because of inconsistency with other evidence or simply its improbability or the manner in which it has been given. For a jury to be directed ... that a previous statement is just as much evidence as the witness's testimony in court is liable to confuse them: the jury may take the direction to mean that they are obliged to give the previous statement the same evidential weight as the testimony (and vice versa)."
Commenting about the facts of that case, Stanley Burnton LJ went on:
"In order to convict the Appellants, the jury had to be sure that the testimony of Walden and Blanchard was true. If they were, it followed that they rejected the truth of their previous inconsistent statements. The fact that, as a matter of the law of evidence, those previous statements were evidence became immaterial at that point. Hence the Judge's direction modelled, as we think, on the standard JSB direction, 'if having looked at the witness's evidence you are sure that one of the two accounts is true, then that's evidence that you can take into account when considering your verdict in the case' was to that extent appropriate."
[23]To deal with this last point, at the conclusion of his submissions Mr Wood argued that the jury could perfectly properly have accepted what Horner and Horn said in their original statements and not thereby be satisfied that the implicit admission to murder was sufficient to convict this applicant of murder. We believe that that analysis flies in the face of reality. The task of the jury in this case was to assess what they made of two men, Horner and Horn, alongside the other circumstantial evidence, contrasted with the evidence of the appellant and whether in light of all the evidence, they were sure the applicant was guilty of murder.[24]In our judgment, the approach of the learned judge to this evidence is beyond proper challenge. It may be that he could have added an extra sentence in relation to the effect of the statements to which we have referred. Even if that was right however, we do not for one moment consider that there is even arguable grounds that the resulting conviction for murder is unsafe. The single judge concluded that these grounds of appeal were unarguable. We agree and the appeal against conviction is dismissed.[25]As to sentence the learned judge approached what he described as "this terrible crime" on the basis that he was satisfied that it was connected to the murder of Fred Moss. He concluded the applicant was exceptionally dangerous and it having been proved that he had killed two people, he may never be released. He approached the assessment of the minimum term as if the applicant had been tried and convicted of both murders at the same trial. He could not be sure there was substantial planning and he took a starting point of 30 years. He noted that in the case of this murder the deceased was vulnerable. He concluded had he been sentencing on both matters he would have sentenced the applicant to a minimal term of 40 years. Having spent nearly 8 years' imprisonment, he reduced that term to 32 years.[26]Mr Wood argues that the applicant had been serving a sentence for the murder of Moss for almost 8 years. The effect of a sentence of a minimum term of 32 years' years commencing the date of the sentence was actually the applicant would not be considered for parole until 40 years after his remand in custody. It was manifestly excessive on the basis the applicant was in no way responsible for the delay in the proceedings and the risk of approaching the sentencing exercise on the basis that he did was the judge took into account aggravating features present in the Moss case, such as abduction and destruction of the body which are absent in the present case. Whilst those features might have justified the trial judge in the Moss case in exceeding the 30-year minimum he had not done so. In the circumstances the minimum term imposed was manifestly excessive.[27]The approach of the court to sentencing in what are described as historic cases of sexual crime is amply demonstrated by an analysis of the decision of this court in R v H and Ors [2012] 2 Cr App R 21. 27.1. The Lord Chief Justice observed that account had to be taken of the true extent of the defendant's criminality by reference to what he actually did and the circumstances in which he did it, thus he said at paragraph 47E:
"The passing years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime, or represents a continuing risk to the public."
[28]Taking into account that feature the learned judge was entitled, at least as part of the exercise of his judicial discretion to reflect upon the entirety of this offender's offending to decide what would be the appropriate minimum term which he should serve.[29]An alternative approach could also have been to identify the fact that this particular murder also had a starting point of a minimum term of 30 years on the basis it was a murder involving use of a firearm (see paragraph 5(2)(b) of Schedule 21 of the 2003 Act). It could then have been aggravated by reason of vulnerability of the victim, as the judge found, as identified by paragraph 10B of the Schedule. Indeed there is the further aggravating fact of attempts to cover up that crime by committing the further crime. There were no mitigating circumstance of the type described in paragraph 11. In those circumstances, on its own, a minimum term of 32 years could not possibly be criticised. Furthermore, it was entirely appropriate that this sentence started only from the date of the applicant's conviction.[30]Either way, and as Mr Wood accepts, it was possible to approach this sentencing exercise in different ways, the 8 years that passed following his remand in custody could properly be taken as a fair reflection of the additional gravity of this multiple offending. There should obviously be no question of discount for what was subsequent crime of the upmost gravity.[31]That is where a check can come in. If say, for example, he had only been convicted after 20 years, it would be appropriate to argue that a total of a minimum term of 50 years was far too long. As it was the judge assessed the appropriate overall term as 40 years. Either way we do not accept this sentence is either wrong in principle or manifestly excessive. The application for leave to appeal against sentence is also refused.