McCotter-Henry, R. v [2018] EWCA Crim 965

[2018] EWCA Crim 965

Case No 201701837/B4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 16 March 2018

Strand

London, WC2A 2LL

B e f o r e:

LADY JUSTICE THIRLWALL DBE

MR JUSTICE GREEN

HIS HONOUR JUDGE LEONARD QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

AARON McCOTTER-HENRY

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Mr G Green appeared for Applicant

J U D G M E N T (Approved)

[1]MR JUSTICE GREEN: On 28th March 2017, in the Crown Court at Bristol, the applicant was convicted of three counts of aggravated burglary, contrary to section 10 of the Theft Act (count 1), wounding with intent to do grievous bodily harm, contrary to section 18 of the Offences Against the Person Act (count 2) and having a firearm with intent, contrary to section 18 of the Firearms Act 1968 (count 3).

[2]His sentence was increased in July 2017 by the Court of Appeal upon an Attorney-General's Reference to one of 6 years and 6 months' detention on counts 1 and 2 concurrent and 2 years on count 2 concurrent. The applicant renews his application for leave to appeal conviction and for a representation order following refusal by the single judge.

[3]The facts may be summarised as follows. At about 23.00 hours on 3rd August 2016 four men in balaclavas forced entry into a property at [an address], Bristol. Inside were JR and his 11-year-old daughter. The offenders were armed with handguns and knives. Mr JR was shot twice, once in each leg and stabbed six times. At 11.08 the police were called. The attackers fled. They were seen by police in the rear gardens of nearby properties. A hammer, knife and discarded items of clothing were recovered from the vicinity.

[4]Earlier that same evening four men were depicted on CCTV exiting from an underground car park at 178 Wells Road. Two men were on foot and two were on a moped. At 22.40 hours, in other words just 20 minutes before the aggravated burglary at [an address], a robbery took place approximately 1 mile away. MB was forced out of her car at gunpoint by the driver of a moped. The car was a black Vauxhall Corsa. The robber drove off in her car and his passenger followed on moped. The car was abandoned outside 63 [an address]. A motorcycle helmet bearing the DNA of the applicant was recovered from the vehicle. In interview subsequently the applicant made no comment.

[5]The prosecution case was that the applicant was responsible for the attack on JR. The applicant was said to be the rider of the moped. The evidence relied upon by the prosecution included CCTV images of the gang assembling at and exiting from 178 Wells Road. The applicant was seen on the moped at about 7.00 pm that evening without a helmet. The prosecution also relied upon the evidence of MB in relation to the robbery of her vehicle and the fact that it was found abandoned extremely close to the scene of the burglary. She gave evidence of a partial registration number in relation to the moped which was consistent with such a moped found abandoned at the scene. She also described witnessing a small handgun. The prosecution relied upon DNA evidence in relation to the applicant on a balaclava recovered from the vicinity and on the motorcycle helmet recovered from inside the stolen Corsa.

[6]The defence case was that the applicant was not identified by JR who identified the other accused. The applicant however chose not to give evidence. The issue for the jury was whether the applicant had participated in the burglary.

[7]The prosecution sought to admit the witness statement of MB, taken on the day of the burglary, wherein she described having been robbed at gunpoint and her Corsa vehicle being taken from her. She said that she had been robbed by someone on a motorcycle or scooter who got into her car and drove away. The pillion passenger on the motorcycle took over and drove the scooter away.

[8]In November 2016 the Crown served the transcript of MB's 999 call in the course of the burglary trial. In January 2017 they served still photographs from CCTV images as part of a story board which had been served over the weeks and which included the robbery as part of the overall prosecution case. As a result of an error the actual statement of MB was not however served until the first day of trial. The defendant sought to have this evidence excluded pursuant to section 78 of the Police and Criminal Evidence Act. It was argued that the prosecution did not need the evidence and it would be admitted without the protection of a full and fair trial process in relation to the robbery. The case might have been prepared differently in relation to that aspect of the evidence. The judge rejected these arguments. The evidence disclosed that an earlier stage alerted the defence adequately to the fact that this was an integral part of the prosecution case. The defence were on notice. The evidence was necessary as part of the sequence of events. The robbery involving the use of a gun had taken place about a mile from where the applicants had set off and about 20 minutes before the burglary, which itself was only a mile-and-a-half from the robbery. The evidence was relevant to the prosecution case that the applicant was correctly identified as one of the offenders in the aggravated burglary. Whilst there was prejudice there was no prejudice beyond that which was inherent in an entirely legitimate manner. As observed the applicant did not give evidence and he therefore did not give any explanation as to why his DNA was in the vehicle. The judge directed the jury that they had to be sure of all of the relevant facts. We were this morning, in the course of this application, told by Mr Green of counsel that there was no material discussion before the judge in relation to section 98 of the Criminal Justice Act 2003 ie bad character. The single judge refused leave to appeal. He stated that he had considered the papers and the relevant grounds of appeal and, in his view, the reasons given by the learned judge were correct. He stated as follows:

"There were many links making this an integral part of the prosecution case; the CCTV at Wells Road; the location of the robbery of the Corsa and its eventual destination; the partial recognition the motorcycle number plate; the use of a small handgun; and there was DNA evidence to link the applicant to the [vehicle]. The purpose of the evidence was to [demonstrate] continuity and to map [the applicant's] route to the scene of the burglary."

As the single judge put it, this was a strong case and, in his view, the conviction was "patently safe". We agree with the single judge. The evidence went to the means of transport used by the applicant and his co-accused to commit the aggravated burglary. The robbery was proximate in time and distance. The victim of the robbery had observed a small black handgun and such a weapon was used in the commission of the burglary. She gave a partial registration number of the motorbike involved in the offence which was correct when compared with CCTV. This was left outside the address before the offences were committed and was abandoned at the scene. The applicant's DNA was recovered from a motorcycle helmet found inside the stolen vehicle. This evidence was interlinked, it was probative in linking the applicant to the aggravated burglary in which he had denied participation. For these reasons we dismiss the application. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400