Sefaah, R. v [2014] EWCA Crim 597

[2014] EWCA Crim 597Case No 201205516 B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 4 March 2014
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE SHARP DBE
MR JUSTICE SILBER
SIR RICHARD HENRIQUES
Between
R E G I N ACrownKEVIN SEFAAHDefendant
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr D Emanuel appeared for AppellantMr G Hawkins appeared for Crown
J U D G M E N T

LADY JUSTICE SHARP:

[1]On 24 August 2012 in the Crown Court at Kingston upon Thames, the appellant, Kevin Sefaah, was convicted of Conspiracy to Rob (count 1) and two counts of Possessing an Imitation Firearm with Intent to Commit an Indictable Offence (counts 2 and 3). On 2 October 2012 he was sentenced to 10 years' imprisonment on count 1 and 8 years' imprisonment on counts 2 and 3. All sentences were made concurrent.[2]Four co-accused, Christabelle Amoah, Wayne Sefaah, Daisy Owusu Henewah and Lee Palmer, were convicted on all three counts. A fifth man, Jeffrey Amoah, did not attend the trial and is currently at large. The appellant appeals against conviction by limited leave of the full court.[3]Two issues are raised on this appeal: first, whether the judge should have ruled that there was no case to answer on counts 2 and 3, and secondly whether she gave the jury adequate directions on those counts in her summing-up. The full court rejected the appellant's renewed applications to like effect in relation to count 1.[4]Christabelle Amoah, Daisy Henewah, Wayne Sefaah and the appellant (who is Wayne Sefaah's younger brother) are cousins. Jeffrey Amoah, although he has the same surname as Christabelle, is no relation to her. Lee Palmer was a friend of Wayne Sefaah.[5]The case concerns an armed robbery of the Halifax Bank in Mitcham which took place shortly after 5 pm on Friday, 16 July 2010. Two armed men, one white and one black, dressed as workmen, forced their way in through a rear door whilst staff were putting out rubbish. The staff and two customers, an elderly couple, were threatened with firearms and forced to lie on the ground. The branch manager, Rachel Hall, was assaulted, forced to open the door to the counter and the safe area and to enter her access code to the safe.[6]The door to the counter area had been propped open with a chair against regulations, but an employee had managed to close it and activated the panic alarm at 5.14 pm. Two men made off through the rear of the bank and into an awaiting getaway van with £100,000. The van was then driven off. It was abandoned a short distance away with £5,000 of the stolen money still in it. The prosecution allege that another vehicle must then have been used to transport the robbers and the money away. There was an extensive investigation after the robbery, and ten months later the defendants were all arrested.[7]The prosecution case at trial was as follows. This was a carefully planned robbery. Wayne Sefaah and Lee Palmer were the gunmen who went into the bank. Jeffrey Amoah and the appellant assisted in the robbery by keeping a lookout outside the bank and helping with the vehicles and the getaway. The two female defendants played a different role. Christabelle Amoah was a customer manager at the bank at the time. She provided inside information and assisted the robbers on the day, pretending to be a victim. Henewah acted as an intermediary between Christabelle Amoah and Wayne Sefaah, creating what is sometimes called a "sterile corridor of communication" between them.[8]There was no forensic evidence linking the defendants to the robbery and no identification evidence. The evidence against them was circumstantial. It depended to a considerable extent on an extremely detailed analysis of their telephone records between midnight on 13 July 2010 and 17 July 2010, the use of numbers with which they were associated and cell site evidence showing where those telephones were (or at least which cell cites were used) at particular times, material, so the prosecution alleged, to the planning of the robbery and its aftermath.[9]It was contended that the jury could infer from the nature of the robbery and the planning surrounding it that the appellant and the other co-conspirators must have known that firearms were to have been used. The prosecution pointed to a pattern of calls on 14 July 2010 between Wayne Sefaah's phone and that of Lee Palmer, which they submitted was consistent with the telephone being in the vicinity of the bank, and an area covering part of the getaway route between 9.15 and 10 am, calls made as part of the planning of the robbery.[10]The van's registration number had been noted by a customer. It was established it had been sold on 15 July, the day before the robbery, to purchasers using a telephone number attributable to Jeffrey Amoah and then a number attributable to Wayne Sefaah ending 3344. Immediately after the purchase of the van the 3344 number telephoned first a number associated with Lee Palmer, telling him, so the prosecution alleged, that the van to be used in the robbery had been obtained, and secondly Henewah, who in turn telephoned Christabelle Amoah.[11]The Sefaah family live in Gorse Road in Croydon. Phones attributed to Wayne Sefaah, the appellant and Jeffrey Amoah then converged on the same cell site in Gorse Road and subsequently the vicinity of the latter's home address. On 16 July 2010, the day of the robbery, Wayne Sefaah's phone travelled to Coulsden where Lee Palmer lived. Wayne Sefaah's phone and that of Lee Palmer then travelled to the vicinity of Jeffrey Amoah's home. The prosecution invited the inference that Sefaah had picked up Palmer and taken him to Jeffrey Amoah's address. Between 2 and 4 pm, the phones belonging to Wayne Sefaah, Lee Palmer and Jeffrey Amoah were placed at the cell site servicing Jeffrey Amoah's address at 153 Norbury Crescent. Shortly before 4 pm, the appellant's phone contacted that of Wayne Sefaah from the vicinity of Norbury Crescent. By 4.30 pm the phones had arrived in the vicinity of the bank. Following the robbery, the appellant's phone moved towards the general area of the escape route.[12]The prosecution also called evidence concerning Christabelle Amoah's actions. On 16 July she informed Ms Hall, who had only recently started working there, that a contractor was coming to deal with a mouse problem. She later told Ms Hall that the contractor had said that the rubbish should be put out that night and not left over the weekend. Other staff had never seen a mouse in the building or considered rubbish to be a problem. One employee recalled Christabelle Amoah referring to a problem about seven to ten days prior to the robbery. A second employee, a Ms Adjetei, recalled that Amoah had been insistent that she help in putting rubbish out at the close of business.[13]Christabelle Amoah was also responsible for ensuring that the safe was locked after the money had been balanced up and put away, but this had not been done at the time of the robbery. Ms Adjetei looked out of the spy-hole in the fire exit. She saw the van with two men dressed as workmen in it. Ms Adjetei thought nothing of this as the area was used for deliveries to a number of businesses. CCTV footage established the van had arrived and parked near the fire escape at 4.26 pm. The prosecution said the opening of the rear door was part of the plan for the robbery and that telephone contact from 5.06 pm between Wayne Sefaah's phone, cell sited within the vicinity of the bank, and Henewah, followed by telephone contact between Henewah and Christabelle Amoah, related to the opening of the rear door of the bank.[14]Except for a few answers to questions by Lee Palmer, who accepted he knew Wayne Sefaah, the defendants all gave no comment interviews after their arrest. Only Wayne Sefaah and Henewah gave evidence at trial. Wayne Sefaah denied any involvement in the robbery. He said he was not in the vicinity of the bank at the relevant time but at Jeffrey Amoah's 21st birthday party. He said his phone was being used by a third person who had borrowed it on the day the van was purchased. Other telephone contact was consistent with normal contact between cousins and friends. Similarly in Henewah's case and the case put on behalf of the other defendants, including the appellant, was that telephone contact was consistent with normal social contact between friends and cousins. In the appellant's case, it was said to be consistent with normal contact that he had with his brother.[15]It was further said on his behalf that the cell site data was not consistent with him being in the area of the purchase of the van, or in the bank's vicinity at the time of the robbery, or in the area where the van was abandoned. There was an innocent explanation for the phone being in the same area as the van after it was abandoned and for the phone's movement thereafter. It was said there was nothing to link him with the van or any other participant in the planning of the robbery, let alone knowledge that firearms would be used.[16]We turn then to the issues raised on this appeal. The judge rejected applications made on behalf of the appellant and Lee Palmer under the second limb of Galbraith in respect of each count. The submission now made on behalf of the appellant is that there was no evidence from which a jury could have concluded that the appellant knew that the robbers were in possession of firearms and the convictions on counts 2 and 3 should therefore be quashed.[17]We do not think this first ground of appeal is sustainable. The judge's ruling was detailed and thorough. She directed herself correctly as to the test she had to apply; that is, whether or not at this stage, putting the prosecution case at its highest, there was sufficient evidence upon which a reasonable jury, properly directed, could draw the inferences suggested by the Crown, rejecting all realistic possibilities consistent with innocence. She went on to consider the competing arguments on all counts, noting the weaknesses as they were said to be in the fabric of the prosecution's case on conspiracy against the appellant.[18]The judge referred to the overall degree of contact between the defendants on the relevant dates, both before, during and immediately after the robbery, and to the timings of the traffic, pattern of the calls and movement of the telephones in the context of the evidence overall. She said the jury would be entitled to reject any of the innocent explanations put forward and to draw the inference from the evidence that the appellant had been involved in the planning of the robbery, had gone to the vicinity to provide some kind of assistance after it had taken place, and had met up with the others shortly afterwards as part of the plan. As the single judge said, and the full court has now held, she was entitled to conclude there was a case to answer on count 1. The contrary, indeed, is not arguable.[19]Mr Emanuel submits the flaw in the judge's reasoning is that, having concluded there was a case to answer on count 1, she did not give truly separate consideration to the position on the other counts; in other words, whether there was a case to answer that the appellant knew that the robbers were in possession of firearms. We do not think that is a fair analysis of her decision. The case against the appellant was one of "full joint enterprise", if we can so describe it; that is, he was involved at every stage of this carefully planned robbery, from the planning stage to its commission and in its aftermath. On the facts of this case, this was sufficient, in our view, to give rise to a case to answer on counts 2 and 3. That was the way the prosecution put it and the judge was, in our view, entitled so to conclude.[20]In R v Abbas [2012] EWCA Crim 2517, to which Mr Emanuel refers, the court said it was incumbent on the judge where knowledge and proof of joint possession of firearms depended on the drawing of an inference to identify the evidence of primary fact from which, if it is accepted a jury might infer knowledge and thus possession, i.e. to identify the facts from which such an inference can be drawn. In that case, the court decided that proof of a significant preparatory role and of travel to the vicinity of the robbery did not provide an adequate basis for inferring that the appellant knew an imitation firearm was being carried (see paragraph 18).[21]There are always difficulties in attempting to draw parallels between different cases on the facts, and unsurprisingly the court in Abbas made clear its decision was made on the particular factual circumstances which arose in that case. These were, in our judgment, very different from those which arose here. The robbery in Abbas took place at a shop; it was less sophisticated; it did not necessarily require the use of a firearm; there was no evidence that the defendants met up before or after the robbery; and the evidence of the use of a firearm was, in any event, tenuous. In this case, there were a number of inferences which the jury could properly draw on the prosecution evidence which were of relevance in this respect. The robbery was of a bank; it was carefully planned using inside information; the safe was behind an electronically controlled security door between the cashiers' area and the banking hall and a second lockable door within the cashiers' area to the safe room; although the robbers had assistance from the deputy manager as to the location of the safe, threats would be needed to get the code providing access to the cashier area and then the safe room and the safe itself.[22]Mr Emanuel points to the presence of inside information as negating the need for a gun. We reject that argument. In this case things did not go according to plan, and a gun would provide a safeguard against such an event. It was, in any event, almost inevitable, given the timing of the robbery and the numbers of staff who would be present (four) and potentially customers as well, that violence and/or enforceable threats would be needed to control and subdue those present and to prevent them contacting the police, as in fact happened. Ms Hall was dragged by the hair across the banking hall. She had a gun held to her head by Wayne Sefaah, who gave her four chances to get the code right before he shot her, while Palmer kept three members of staff lying face-down on the floor at the end of another gun. The planning involved the purchase of the van and other paraphernalia: overalls, hardhats and dust masks for the purpose of disguise and subterfuge; the use of another vehicle after the van was abandoned; and then the planned disposal of the money, the guns and the paraphernalia. There was extensive evidence of telephone contact between the defendants in the three days spanning the robbery and of co-location in areas consistent with a reconnaissance. It covered the purchase of the van and contact after the robbery. As Mr Hawkins for the Crown has submitted in his written argument, all these were proper matters for the jury to consider when deciding whether, as the Crown alleged as a matter of inference, the use of firearms was an integral part of the plan and whether those involved in the organisation and planning of the robbery would have known that firearms were necessary for it to be carried out successfully.[23]It is against that background that the adequacy or otherwise of the judge's directions to the jury on counts 2 and 3 must be considered. Having directed the jury that in relation to counts 2 and 3 they should be careful to draw a distinction between the robbers using the firearms in the bank and those who were not in the bank,

the judge went on to say this:

"In respect of each of the other defendants the prosecution need to make you sure that each of them was aware that the robbers would be armed and agreed to take part in the plan, and you can only determine that by looking at all the circumstances. If you are sure in respect of the defendant whose case you are considering that he or she did agree to take part in a plan to rob the bank, and given what would be necessary to carry out that plan you may have little difficulty concluding in those circumstances that he or she must also have known that it was intended that guns would be used, in those circumstances your verdicts would be guilty on counts 2 and 3 in respect of that defendant. But you must be sure. If you are not sure, if you think it was or may have been the case that a particular defendant was not aware or may not have been aware that part of the plan was to use guns or something that looked like a gun, then the prosecution will not have made you sure in respect of that defendant on counts 2 and 3 and your verdict in those circumstances must be not guilty."
Having given that direction, the judge went on to summarise the relevant evidence in detail. In our judgment these were proper directions to give on the facts of the case and there are no grounds to criticise her summing-up in any other respect.[24]Mr Emanuel, in his oral arguments before us today, has presented the matter both attractively and succinctly. However, it follows from the conclusions we have expressed above that we are satisfied that the appellant's convictions on counts 2 and 3 are safe on either and this appeal must therefore be dismissed.