Kiziltan v R. [2017] EWCA Crim 1461

[2017] EWCA Crim 1461Case No 2016/05646
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
Venue Royal Courts of Justice, Strand, London,Date 06/10/2017
WC2A 2LL
Before
LADY JUSTICE THIRLWALL DBEMR JUSTICE SPENCERThe HONORARY RECORDER OF WESTMINSTER(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
MUSTAFA KIZILTANAppellantTHE QUEENRespondent
Mr M Lavers appeared for AppellantMr K Volz appeared for CrownHearing Hearing date: 6 th July 2017
Judgment ApprovedLady Justice Thirlwall :
[1]On 11 November 2016, after a trial in the Crown Court at Wood Green MustafaKiziltan (27) was convicted of kidnapping.On 14 November 2016 he was sentenced to 4 years’ imprisonment.[2]He appeals against conviction on two grounds by leave of the single judge. Mr Lavers, who represented him at trial and before us, renews an earlier application for permission to appeal on a further ground upon which permission was refused. He has abandoned two other grounds.[3]During 2015 the appellant, who was married, had a relationship with Ms Zeynap Yardigi. The relationship ended at the end of 2015/early 2016. It was not disputed that on 23 February 2016, Ms Yardigi was at home in her flat. A friend of hers, Ahmed Firat, was staying over that night, sleeping on the sofa. In the early hours of the morning three men forced their way into the flat. Two of them were holding knives. They went into the living room where Mr Firat was sleeping, sprayed some sort of noxious substance into his face and repeatedly punched him. They then stripped him naked and forced him out of the flat at knifepoint. As they took him towards a parked car, he broke free and ran away from them. In October 2016, shortly before trial he picked out the appellant at an identification procedure.[4]It was the prosecution case that the appellant was one of the three attackers, acting out of jealousy.[5]Ms Yardigi gave evidencethat when she ended her relationship with the appellant, he became jealous and obsessive. He made unwanted visits so that she was forced to change the locks on her flat several times. He repeatedly telephoned her and sent her text messages. On the evening of the kidnap the complainant, whom she knew from school, came to her flat and they smoked cannabis. At around 2am they went to bed in separate rooms. She was woken by banging within the flat. The appellant was in her bedroom. He said, “Why are you cheating on me?” He was wearing a hat and she could clearly see his face. She was 100 per cent sure that it was him. There were two other men wearing masks, she said, both were carrying knives. She ran to the bathroom and called the police on her mobile phone. [There was no record of any call at that stage]. One of the masked men put a knife to her throat and was told by the appellant to leave her alone. In a later 999 call, after the men had left the flat she told the police that her “ex” had been present. In that call she told the police that all three men were wearing masks. That was, she said, an error. The appellant’s face was not covered.[6]When cross examined she disagreed that she was jealous, obsessive or out for revenge. She said that the appellant had been harassing her daily. She denied colluding with the complainant to set up the appellant. She agreed that she had subsequently visited the appellant in prison, but denied telling him that she intended to lie in evidence. She maintained throughout that she had a very good view of the appellant when he entered her bedroom irrespective of what she had said at the time of the 999 call.[7]The complainant. Ahmed Firat, did not attend to give evidence when expected to do so. The judge acceded to an application by the prosecution to adduce his two statements as hearsay. Both statements were read to the jury. The first statement contained a detailed account of the incident. The second dealt with the identification of the appellant. Immediately thereafter, at the judge’s invitation, Mr Lavers addressed the jury about all the points he would have put to the witness had he attended.[8]The prosecution also relied on i) a conviction of robbery in 2005 when the appellant was 15 ii) the fact that on 28February he was a back seat passenger in a BMW in which a canister of ammonia was found in the well of the front passenger seat – and he had run away as the police approached and iii) the fact that in interview he omitted to mention facts that subsequently featured in his account to the jury.[9]The defence was alibi. The appellant said that at the time of the kidnapping he was at the matrimonial home, although his wife was not there. He asserted that it was Ms Yardigi who was jealous and did not want him to reconcile with his wife. She would not leave him alone and constantly tried to contact him, and came to see him. He alleged that she had threatened to make false allegations against him and, later, that she would lie about him in evidence.

Grounds of Appeal

[10]The grounds of appeal in respect of which the appellant has leave both relate to the statements of Ahmed Firat. The judge admitted them pursuant to section 116 (2) (d) of the Criminal Justice Act 2003. Mr Lavers submits that he was wrong to do so because the prosecution had failed to establish that all reasonable practicable steps had been taken to locate the witness. He further submits that the judge failed properly to assess the reliability of the hearsay evidence; he refers to the decision of this court in R v Riat and others [2012] EWCA Crim 1509; [2013] 1 Cr.App.R.2.[11]The second ground is directed to the judge’s summing up of the hearsay evidence which, it is argued, was inadequate.

Ground One

[12]Mr Firat made his first statement on 29 February 2016 and, shortly before trial, on 31 October 2016, after the identification procedure. He had attended at court on the first two days of the trial, Thursday and Friday 4/5 November 2016. He had driven Ms Yardigi to and from court each day. He told the officer in the case over the weekend that he would be attending to give evidence on Monday 7 November but he did not arrive. Little progress could be made with the trial on the Monday. The judge issued a witness summons. On the Tuesday, the witness did not attend. The police had been unable to serve the summons because they could not find the witness. On Tuesday 8th the Crown applied to adduce the statements pursuant to Section 116(2)(d). There was a voir dire. The police officer said in evidence that officers had gone to the complainant’s home address, endeavoured to contact him through his mother and had spoken to Ms Yardigi to see if she knew where he was. He also said that the police were aware that the witness owned a barber’s shop in Wood Green but it would not be easy to find it. It is not apparent that he asked Ms Yardigi or the complainant’s mother where the business was. Wood Green is not enormous. The officer said that Mr Firat had been in touch with Ms Yardigi and had said that he “did not feel right” about giving evidence.[13]The judge ruled the evidence admissible and gave his detailed ruling later in the trial, when the jury were deliberating. Having set out the police’s efforts to secure the witness’s attendance the judge concluded “He has, simply, vanished from sight. He’s gone into effectively a hiding place somewhere.” He continued “He did inform someone that he was not coming to Court, I think Zeynap [Ms Yardigi] on the Saturday “He didn’t feel right. PC Latham told me in a voir dire he didn’t feel right, he was shaken and nervous.”[14]The judge went on to conclude in robust terms that the witness had taken a deliberate decision to absent himself. He was “reluctant to attend and deliberately lying low”. There was no question of the witness not attending through fear of the appellant.[15]The judge went on to observe “I find as a fact, that this witness was never going to come to court after the weekend, after he’d had a chat with his friend Zeynap, and I concluded therefore that the gateway had been quite satisfactorily passed by the prosecution on the evidence I heard.” The gateway to which he was referring was section 116(2)(d) to which he had referred earlier. The judge also commented that he had looked at the case of R v M [2014] EWCA Crim 1457; [2014]Crim L.R. 823 CA which appears in Archbold at chapter 11-21. The case had not been mentioned in argument. The point in that case upon which the judge relied was the observation that the question of whether a case fell within s116(2)(d) was ultimately a question of fact for the judge. We agree. In that case the missing witness was not central and comprehensive efforts had been made to find him over the length of a trial. As Mr Lavers points out, the facts here were rather different.[16]Some judges may have given the Crown another day to find the witness but this was a very short trial and time had already been lost. We do not consider that it would be right to criticise the judge for that decision or for his ultimate assessment that the case came within section 116(2)(d). It was a finely balanced decision, in our view. Having come to that decision the judge then had no discretion; the evidence was admissible subject to any application to exclude it under section 78 PACE. However, the judge went on “to consider the next step which I am bound to take, which is to consider the interests of justice stage, set out in section 114(1)(d).” He then referred to all the matters set out in section 114(2) before deciding to admit the evidence. This was an error of approach which may have arisen from the way the case was argued before him by counsel for the Crown who was still rather unclear about the correct approach even before us.[17]Mr Lavers had submitted on behalf of the appellant that:-i) the facts did not meet Section 116(2)(d) and ii) in any event to admit this evidence would be unfair under section 78 PACE and iii) when considering the section 78 application the judge should apply the considerations set out in section 114(2). This, we observe, accords with the guidance given by this court in Riat.[18]We are satisfied that had the judge directed his mind to the question of fairness and the application of section 78 PACE (taking account of the matters set out in section 114(2)) he would inevitably have excluded the evidence because at the heart of the appellant’s defence was his assertion that Ms Yardigi had conspired with the complainant to make a false allegation against him. When Ms Yardigi had finished her evidence the judge warned her not to talk about her evidence to anyone else. The judge found that she had discussed it with the very person with whom it was said she had colluded. Given that much of the cross examination had been directed to collusion it is likely that this was discussed between the two of them. In those circumstances the observation by Mr Firat that he “did not feel right” giving evidence was a cause for concern as to the reliability of what was in his statement about the appellant. This was central evidence from the complainant who claimed to have identified the appellant through photographs. In our judgment, this evidence should have been excluded pursuant to section 78 PACE.[19]We have considered whether the way the judge subsequently dealt with the matter meant that the conviction was nevertheless safe. Our deliberations in this respect include, inevitably, consideration of the second ground of appeal – that the direction to the jury was defective.

Ground Two

[20]In order to mitigate the effect of the statements being read the judge allowed Mr Lavers to address the jury about what he might have put to the witness had he attended to give evidence. Mr Lavers did so at some length. He told us that he also cross-examined the officer in the case about the matters that had emerged during the voir dire, including the fact that the witness had said he “did not feel right” about giving evidence. In the summing up the judge summarised Mr Lavers’ address by reference to 8 points. There can be no complaint about that and none is made. Mr Lavers submits that when directing the jury about the approach to take to hearsay evidence the judge overlooked the direction to bear in mind that the witness statement had not been tested in evidence on oath. The judge said this:
“The first point is an obvious one. You’ve not had an opportunity to judge him, and to reach an assessment of him. His demeanour, his attitude to the court.”
We do not think the absence of a reference to the oath or affirmation renders the direction ineffective. The jury knew they had not seen the witness give evidence (on oath or affirmation), that is why they had heard Mr Lavers’ account of the matters he had not been able to put. There is nothing in this point.[21]The judge went on to remind the jury in some detail of the contents of the first witness statement (which had been read to them twice earlier that day, the second time at the jury’s request). He described to the jury the way in which Mr Firat had cooperated with the court system:
“He’s made two statements, gone to an identification suite and come to Court two days in succession.”
He said that the witness “told Zeynap, who had told the police officer, that he wasn’t going to come and he’s … gone to ground.” He then reminded the jury of most of the first witness statement again, having earlier commented on the amount of detail in it. He then said, “in essence, the weight to be attached to this absent witness is a matter for you to judge, exercising as I know you will the necessary caution in the case of a first time identification.” There is no complaint about the judge’s direction on identification.[22]Having described, quite properly, the witness’s attitude to providing a statement and attending at court, the judge should have gone on to remind the jury of the evidence about why the witness had not attended. This was important given that the central plank of the defence was that the witnesses had colluded. He should have reminded the jury that Mr Firat and Ms Yardigi had spoken about the case over the weekend and they should consider whether it was in the light of what she had said about giving evidence (in contravention of the judge’s warning not to discuss the case) that he had decided not to come to court “he did not feel right”. He should then have directed the jury to consider whether there may be a link between the reason for his absence and defence assertion that he and Ms Yardigi had colluded in placing the appellant at the scene and, if so, whether that affected their view of the credibility of Mr Firat’s statements that he had identified the appellant. This was not done.[23]We regret that the direction to the jury on hearsay was inadequate given the issues in the case and could not remedy the earlier error. It follows that the conviction is unsafe.[24]Before leaving the issue of hearsay we note that the judge gave his decision on the admissibility of the statements immediately after argument and then gave his detailed ruling while the jury were deliberating. It is often convenient and less disruptive of the evidence for a decision as to admissibility of evidence or some other point of law to be given immediately after argument with a detailed ruling later in the trial. This is good practice. However, where a judge permits hearsay evidence to be adduced the detailed ruling should be given before speeches so that counsel may tailor their speeches to the ruling and, where appropriate, make submissions in respect of the content of the proposed hearsay direction in light of the ruling. Because that was not done on this occasion counsel was unaware in advance of his closing speech to the jury that it was the judge’s view firstly that the witness had not attended as a result of his conversation with Ms Yardigi and secondly, despite that conclusion, that the judge neither recognised the significance of the conversation between them, nor intended to direct the jury about the content and background to that conversation in the context of the central issue of collusion between the witness and Ms Yardigi. By the time the ruling was given whilst the jury were deliberating, it was too late.[25]In the light of our conclusions on grounds 1 and 2 it is not necessary to consider the renewed application for permission to appeal.[26]We allow the appeal. The conviction is quashed.

Cited in 1 later judgment