Marsh-Smith, R v [2015] EWCA Crim 1883

Case No 201403721 C2[2015] EWCA Crim 1883
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Central Criminal Court
His Honour Judge Bevan QC
T20137464/T20137584/T20137581
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/12/2015
Before
LADY JUSTICE RAFFERTY DBEMRS JUSTICE LANG DBEMRS JUSTICE PATTERSON DBE
Between
ReginaRespondentJamie Imahni A Marsh-SmithAppellant
Edward Brown QC and William Emlyn Jones for RespondentMichael Turner QC and Dafna Spiro for AppellantHearing Hearing date: 16 th October 2015
Judgment
[1]Jamie Marsh-Smith, 24, on 10th July 2014 in the Central Criminal Court was convicted of two attempted murders (Counts 1 and 3) and of murder (Count 2). On 14th July 2014 he was sentenced to life imprisonment on Count 2 and 30 years imprisonment, concurrent, on Counts 1 and 3.Samuel Zerei was convicted of murder (Count 2) and sentenced to life imprisonment with a minimum term of 28 years. He was the complainant in Count 3 attempted murder. He did not give evidence.The jury could not agree in respect of Wright and who were tried for Attempted Murder. They were later each convicted at a re-trial. Wayne McNeish convicted of perverting the course of justice (Count 4) and sentenced to 54 months imprisonment.[2]Marsh-Smith appeals against convictionby leave of the single judge.[3]Counts 1 and 2 concerned the attempted murder and murder of brothers Inan and Zafer Eren, members of a gang the “Tottenham Turks”, since 2009 in a violent feud with another Turkish gang, the “Hackney Turks”. Although none of the defendants was Turkish, it was alleged they acted on behalf of Beytullah Gunduz, a Hackney Turk with whom Zerei was connected.[4]About midnight on 30th/31st December 2012 InanEren was shot at close range at his front door (Count.1). At 12:15am on 31st December a Ford Focus, stolen and with false plates, was set on fire in Tottenham near the home of the appellant. Clothing in it bore his DNA and that of Annan and Wright plus gunshot residue (“GSR”) of the type on Eren and spots of Eren’s blood.[5]On 18th April 2013 Zafer Eren as he walked through security gates to his home was shot dead by a masked gunman. Of seven shots three struck him in the back.[6]On 22nd April 2013 Samuel Zereiwas shot and fled to a nearby house from which his text to his brother read:
“The yute dat shot me lives at 18 Commonwealth Road N18 his name is Jamie”
[7]The Crown’s case on Count 1 was joint enterprise by the appellant, Annan and Wright. It relied on telephone data to establish that the three had been in regular contact, their phones switched off at the time of the shooting, and on the DNA evidence on items in the Focus. Inan Eren failed to identify any defendant.[8]Interviewed on 11th March 2013 in relation to the shooting of Inan Eren the Appellant initially made no comment although asked if he had lent clothing to friends, or had any stolen he said some had been stolen from his mother’s washing line in the warmer part of 2012.[9]The Crown’s case in relation to Count 2 was that the appellant killed Zafar Eren. It relied on circumstantial evidence including CCTV of various vehicles, telephone billing and cell site data connecting the appellant and Zerei and placing them in the area, and the direct evidence that Zerei admitted being the driver (his defence was he thought he was involved in a drugs deal).[10]A search of 18 Commonwealth Road on 23rd April 2013 revealed the fingerprints of the appellant, Wright and Zerei. A skull mask bore the appellant’s fingerprints. His bedroom held a Nokia phone box matching a relevant handset.[11]Arrested and interviewed he made no comment.[12]The Crown’s case on Count 3 was that the appellant made a determined effort to kill Zerei to stop him revealing the appellant as the killer of Zafar Eren.[13]His case was a denial of responsibility for or involvement in the shooting of either Eren. As to Count 1 he denied presence or responsibility. His clothing had been left in the car by the Hackney Turks to get him into trouble. Jamie Marsh-Smith did not offer a positive explanation as to how his clothing came to be in the Ford Focus. As to Count 3 he conceded he shot Zerei but claimed it was in self-defence.

Count 1 attempted murder

[14]Inan Eren(“IE”)saw a man running towards him holding a gun in his right hand. The appellant was right handed. Five shots were fired.[15]Crystal Clarksaw three young people at the burning Ford Focus taking out or putting in “stuff”. They ran away down Commonwealth Road.[16]DC Berryhad been on duty when IE was shot in 2012 and the perpetrator’s car burnt out. He was immediately alert to the similarity and sent out an alert.[17]From the Focusa black zip-up hooded jumper and Firetrap jacket bore a DNA profile with inter alia a match for the appellant. A blue sleeveless jacket had a bloodstain almost certainly that of IE. A black hooded top had a bloodstain match for IE. Inside cuffs and collar was a mixed profile that matched the appellant. A black face mask bore his DNA. A black hat bore a major profile match to him and he had probably worn it regularly. Black tracksuit bottoms bore his DNA.[18]The Firetrap, the blue sleeveless jacket, the tracksuit bottoms and the black hooded zip up top bore GSR.[19]The three defendants, the appellant Wright and Annan, in regular contact up to and including 29th December, did not ring one another on 30th.[20]The appellant told the juryhe was not a member of any gang. The masks at Commonwealth Road were for Annan’s son. He explained why he was commonly in the vicinity of Commonwealth Road.[21]He denied anything to do with the shooting or with the Focus save that he owned the black face mask found in it. He was not present at the shooting. He told the jury of his previous convictions.

Count 2 murder of Zafer Eren (“ZE”)

[22]The Crown led telephone evidence to position the appellant’s and Gunduz’s phones near or in Commonwealth Road at relevant times. It also linked the appellant to Miniways Taxi in the name “Jamen”. On 18th April 2013 the appellant’s phone was variously in contact with Zerei until the two fell silent until after the murder.[23]Involved in the murder were a burgundy Peugeot 308, a silver Skoda Octavia and a Volkswagen Touran. The Touran, stolen and given false plates, had in its glove compartment a black Nike glove, a pair of walkie-talkies, a pair of binoculars and a Guy Fawkes “V for Vendetta” mask, Zerei’s fingerprints on its bag. The Crown suggested this was equipment to be used in the murder.[24]On 8th April Zerei drove the Skoda to his home and left driving the Peugeot, first taking a detour close to where the Touran had been parked, then nearing the appellant’s family home with one occupant, emerging 10 minutes later with two. The Peugeot was at the murder scene 50 minutes before the murder. After the murder it went back the way it came, making a detour to within 100 metres of the appellant’s address.[25]The gunman got into the Peugeot and it sped away.

The defence case on Count 2

[26]The appellant set out his alibi and told the juryhe took no part in the murder. He knew the surname of ZE. The mobile upon which the Crown founded its evidential link was not his, someone left it in his drawer. There was but one set of keys to his aunt’s home in Commonwealth Rd so Zerei had to follow him home. Next day Zerei gave the appellant a new mobile and the appellant did some drug dealing for him.

The Crown’s case on Count 3

[27]The appellant had a regular arrangement with a minicab driver, who in the early hours of 22nd April 2013 drove him to the area of Markfield Park. Shortly after the shooting the “puffed out” appellant was picked again by the same minicab driver and driven back to Commonwealth Road.[28]Mr Bublilfrom his home near the scene of the shooting heard gunshots, saw a man in the front garden, and phoned the police. Mrs Bublilfound Zerei, on the phone to 999, and he told her the gunman was called Jamie. At the Bublil’s Zerei sent the “Da yute that shot me lives at 18 commonwealth road N18 his name is Jamie” text.[29]Zerei did not give evidence. In varying accounts to police he said the appellant, also known as Freddy, had shot him.[30]The appellant gave evidencethat he shot Zerei in self-defence with a gun he had taken off him. A police informant since 2011, he had not told his handlers of his arrest for the attempted murder of IE.[31]He claimed that on 21st April 2013 Zerei told him the police were looking for him and had raided his mother’s house. The appellant told Zerei to contact the police. He met Zerei in the early hours of 22nd April in relation to drug dealing. The atmosphere was tense and they argued about his revelation that he was an informer.[32]Zerei asked if the appellant were going to give him (Zerei) up to the police, pulled the gun out and as they tussled it went off three to five times. Zerei fell to the ground and the appellant fired one shot directly at him, swore and ran off. As he ran he arranged for a cab, did not go to the Bublil’s but straight home in the taxi. He had thrown the gun away. He was advised to make no comment in interview.

Severance

[33]The ground of appeal is thatsince severance was not ordered the appellant was denied a fair trial. Mr Turner QC for the appellant unsuccessfully applied for severance on the ground that Zerei was a co-defendant on Count 2 and a Crown witness on Count 3.[34]At the conclusion of cross-examination of the appellant by counsel for Zerei, he revisited his submission. He argued that the jury would be unable to distinguish Zerei’s positive case, put in cross-examination by his counsel, from the fact that nothing Zerei had said could be used in evidence. Counsel’s questions would attract a status they did not merit.[35]He argued that Count 3 should be tried separately as matters had been put on behalf of Zerei which were not in evidence. The judge had already ruled that inadmissible evidence was not to be put in cross examination and counsel for Zerei, Mr Turner argued, went beyond it.[36]The situation had changed since the initial ruling, the appellant now conceding he was the gunman but raising self-defence, explaining Zerei would want to shoot him because he was an informant.[37]The judge, rejecting the submission ruled that the appellant would have a fair trial and he would give a written direction as to the status of counsel’s questions. Cross-examination did not offend against his direction that inadmissible evidence should be avoided. The evidence over a month had been plain that Zerei’s case was that the appellant was the gunman on Count 2 and Zerei’s counsel had put it in terms to the appellant. The two were linked if only by the gang warfare and the Eren brothers being victims. Those two links stood independent of the Crown putting anything in cross-examination. The Judge was sure Mr Brown for the Crown would bear in mind Mr Turner’s anxiety and avoid reliance on what Zerei told the police as evidence against the appellant.[38]For the Crown Mr Brown QC cross-examining the appellant triggered this dialogue:
“Then ZE died in a hail of bullets. Traced to his home like IE and shot and Zerei drove the gunman to where ZE parked the car. What has Zerei got against you? Well you had better ask him. I can’t answer although I have my own theory………..I was suspected of a contract killing in December and Zerei accused me within seconds of being shot”
[39]Mr Brown invited the appellant to tell the jury what Zerei had against him, a reference to Zerei having accused the appellant of the ZI murder. He invited comment on two Eren family members being shot within a short time of each other. The appellant replied; “Zerei said I shot him but I didn’t. He needed someone to blame”[40]Mr Turner complained and complains that this cross-examination, necessarily before the Crown could be confident Zerei would give evidence, was vastly prejudicial to the appellant.[41]He once again renewed his application for severance and once again was unsuccessful.[42]The Judge thought the factors triggering Mr Turner’s renewed submission commonplace. He had not previously encountered a defendant on one count being a complainant in another but that did not affect principle, that the jury would follow his directions. He had already warned, repeatedly, of the need to distinguish admissible from inadmissible evidence. The position by the time of his ruling was that agreed admissible evidence was that the shot Zerei had sent the “Da yute” text to his brother. That was important since the issue was no longer whether he were the gunman but whether he shot in self-defence. The other substantial change, since the trial had begun, was the appellant’s disclosure of this status as an informant, seeking to explain why Zerei should want to shoot him. The appellant could have a fair trial.

Developed submissions

[43]Mr Turner sensibly accepted that a decision on severance required the exercise of the judge’s discretion, and was certain to tap into the touch and feel for a trial which so experienced a tribunal would enjoy.[44]He has no complaint about the summing-up which he was at pains to concede avoided the errors he laid at the Crown’s door. His criticism of the Crown, on the other hand, continued unabated since in its closing speech the mischief of the cross-examination was, he suggested, repeated and thus compounded. He told us it was almost impossible for him in his closing address to the jury to deal with the difficulties variously strewn along his path and which we have set out.[45]He relied on O’Boyle (1991) 92 Cr App R 202. The court held that the judge had given insufficient weight to the fact that separate trials would do little if any harm to a co-defendant or the Crown whereas a joint trial would almost guarantee the appellant’s conviction whatever direction were given.

Discussion and conclusion

[46]The interests of justice are best served by the ventilation before a jury of allegations which find a common thread, defendant to defendant, event to event, or by reference to other factors, during a trial whose process can protect a defendant from avoidable injustice.[47]Had severance been granted, prosecuting the appellant for attempted murder of Zerei the Crown, with every expectation of success, would have sought to lead the shooting of ZE to establish the appellant’s motive. Both allegations would thus have found a voice before first one jury and then another, were the appellant’s argument sound.[48]The Crown was criticised for its cross-examination of the appellant but it was bound to point up the unlikelihood of coincidence being the sole answer to why evidence for his involvement in the shootings of both Erens came from different sources.[49]What no-one suggested or suggests was admissible against the appellant was the content of Zerei’s accounts after the murder of ZI. The issue in this appeal is thus whether having heard the content of them the jury, properly directed, was incapable of following the unimpugned direction.[50]No body of learning is necessary to establish that robust directions are in general enough to preserve the integrity of the trial process. Miah [2011] EWCA Crim 945 underlined that very exceptional circumstances set the high bar for a successful severance application. We have been shown nothing to make good the contention that the position here was exceptional let alone very exceptional.[51]These counts were properly joined. If a joint trial is said to be inimical to the interests of justice the judge classically performs a balancing act once he has identified the opposing arguments.That is an exercise of his discretion precisely because it requires not only analysis of the issues and of competing interests, and an assessment of the likely course of a trial, but also a sense of how confidently he can help the jury when he directs it on the law.[52]We are not persuaded that this case required separate trials. The jury was told by the judge, clearly and uncontroversially, of the approach it must follow to the admissibility of evidence. No scholarship is necessary for the proposition that it is to be assumed that juries follow directions.[53]The position in which the appellant found himself, though more unusual than some given Zerei’s status as both complainant and defendant, is familiar to practitioners and judges in criminal trials. This highly experienced judge was astute to the need to strip away any false status accorded to counsel’s questions and his direction could not have been clearer or stronger. That is why it is not criticised.[54]He was equally clear firm and correct in directing the jury on inadmissible evidence, in just the terms Mr Turner advanced. That is why he is not criticised for that direction either.[55]The appeal is dismissed.

Cited in 1 later judgment