Neutral Citation Number:
[2012] EWCA Crim 994
Case No:
201004206 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HHJ Anthony Morris QC at the Central Criminal Court
between 31 October and 23 December 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
15/05/2012
Before :
LORD JUSTICE PITCHFORD
MR JUSTICE WYN WILLIAMS
and
MR JUSTICE SUPPERSTONE
- - - - - - - - - - - - - - - - - - - - -
Between :
GABRIEL ALECU
Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Michael Turner QC
and Mr Gareth Underhill
(instructed by
Avantis - Solicitors
) for the
Appellant
Mr Jafferjee QC and Ms Wilding
(instructed by
London Homicide Team
) for the
Respondent
Hearing dates : 23 and 24 April 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford :
1.
The appellant was with others tried before HHJ Anthony Morris QC at the Central Criminal Court between 31 October and 23 December 2005 upon an indictment charging them with the murder of Eugen Constantin Breahna. On 23 December the appellant was convicted by a majority of 10–1. On 27 January 2006 he was sentenced to imprisonment for life. The judge imposed a minimum term of 21 years pursuant to
section 269 (2) Criminal Justice Act 2003
and ordered that 361 days spent in custody on remand should count towards that term.
2.
At trial the appellant was represented by Ms D Ellis QC and Ms Sidhu. He is now represented by Mr Michael Turner QC and Mr Gareth Underhill. Mr Jafferjee QC and Ms Wilding, who represented the prosecution at trial, represent the respondent in the appeal.
3.
At the conclusion of the trial Zak Mayanja, Narcis Danila and Christian Zakyi were also convicted of murder. Bob Tambue and Georghe Bechian were acquitted. In July 2006, following a separate trial, Iosif Baboschi was also convicted of murder. His co-accused, Mercan, was acquitted.
4.
On 20 February 2007 the appellant’s appeal against sentence was dismissed by the full court (Thomas LJ, Cox J, HHJ Wide QC). The appellant now appeals against conviction with the leave of the single judge who granted an extension of time of 4 years 7 months. The appellant seeks to rely on the “fresh” evidence of Manuel Petru Cirlan and Catalin Vasile Casaneanu and a factual misdirection by the trial judge. The single judge reserved to the full court a question whether the evidence of Duncan Brown of Disklabs might be received as fresh evidence. Agreement between experts has rendered argument upon this ground unnecessary. The appellant has abandoned a third ground of appeal which asserted that the prosecution failed to disclose the false identity and previous convictions of a prosecution witness, Ivan Marian.
5.
Following the grant of leave the appellant, on 26 August 2011, waived his privilege concerning professional communications between himself, Ms Ellis QC, Ms Sidhu and his solicitors. It was then anticipated that counsel would be criticised for a failure to challenge and to seek expert evidence to contradict the prosecution mobile telephone cell-site expert, Mr Peter Brown. On 19 September 2011 Ms Ellis and Ms Sidhu submitted to the court their “Observations” on the appellant’s grounds of appeal.
The prosecution case at trial
6.
The prosecution could not pin down with any precision the underlying reason for the attack on the deceased man, Eugen Breahna, but it was a reasonable inference that there was a dispute between two rival groups implicated in ATM frauds. Eugen Breahna lived at 5 Latham Court, Brownlow Road, Bounds Green, London N11 (adjacent to Bounds Green underground station) with Ivan Marian, Culicov, Taranu, Cirlan and Casaneanu. Associated with this group were Radu Galatanu, Iulian Varga and Ionut Ursu. All were Romanian nationals most if not all of whom were illegal entrants. During the police investigation which followed Mr Breahna’s murder, equipment for use in ATM fraud was recovered from 5 Latham Court. After the murder, some of the occupants of 5 Latham Court fled to 58 Loxton Wharf in Bow. Similar equipment was recovered from that address.
7.
We turn to the appellant’s group. The appellant and Narcis Danila are also Romanian. Danila is the appellant’s nephew. Zac Mayanja, a native of Uganda, was Danila’s close friend. Danila admitted in evidence that he was involved in ATM and “basher phone” frauds, the latter involving the use of cloned credit cards to obtain mobile phone contracts. Christian Zakyi and Maitland Cole were Zak Mayanja’s friends. Bob Tambue was a native of Zaire and a friend or acquaintance of Cole, Mayanja and Zakyi. Georghe Bechian (known as “Gino”) was an associate of the appellant. Iosif Baboschi, also Romanian and formerly a professional boxer, was an associate of the appellant. Danila gave evidence that he took his instructions in the perpetration of his ATM and basher phone frauds from Baboschi. Danila estimated that his personal profit was some £700 per week. The appellant’s group was generally located in east London, some 10 kilometres from Bounds Green. The appellant himself had a flat at 231A Barking Road, East Ham and rented another flat at 313C Eastern Avenue, Gants Hill. The exception was Bechian who lived in Stevenage.
8.
The prosecution case was that the appellant’s group, led by Baboschi and the appellant, put together a gang armed with baseball bats and golf clubs to mount an attack in Bounds Green upon Ivan Marian and his group. They travelled in convoy from East Ham at about 8.30 pm on 18 January 2005 and arrived in Bounds Green shortly after 8.57 pm. Bounds Green underground station is situated at and on the north side of the junction between Bounds Green Road (the A109 which runs north west to south east through Bounds Green) and Brownlow Road (which runs southwards to the junction from the A406 road). The four-way junction is completed by Durnsford Road (the B106 which runs south west from the junction as a continuation of Brownlow Road). The junction is controlled by traffic lights. Latham Court is one of a group of buildings associated with the underground station on the north side of the junction. In a courtyard alongside the flats at the rear of the station is a car park to which access is gained from Brownlow Road along an alleyway which commences alongside the James Florist shop. In front of the shop is a bus stop. About 75 metres north of the alleyway is the junction on the nearside between Maidstone Road and Brownlow Road. The appellant’s group parked their cars in Maidstone Road.
9.
There was a confrontation in the street during which Ivan Marian, Culicov and Eugene Breahna were chased along Brownlow Road to the junction, a distance of some 60 metres. Breahna turned right at the junction and sought refuge in an ambulance which happened to be parked in Bounds Green Road while attending a separate incident. Breahna was pursued into the back of the ambulance where he was beaten to death with a baseball bat and a golf club. The prosecution case was that all those who participated in the chase were guilty of Breahna’s murder, either as principals or as secondary parties. The prosecution case against the appellant was that he assisted Baboschi to put together the gang and, once at Bounds Green, directed the attack towards the fleeing men.
10.
The appellant chose not to give evidence at his trial. He relied upon the contents of his interview under caution which took place on 27 and 28 January 2005. Mr Alecu’s account was that he had spent the afternoon with Bechian and another man called Viorel. Viorel wanted to purchase a car and the 3 men travelled to Stevenage in Bechian’s Mercedes Kompressor to view motorcars. The appellant claimed that during their return journey Baboschi telephoned him. Baboschi said that he was going to meet friends in Bounds Green but did not know how to get there. The appellant attempted to describe the route but Baboschi wanted the appellant to lead him to Bounds Green. The appellant asked Bechian if they could use his car and Bechian agreed. Ten minutes later, according to the appellant in interview, they met outside the appellant’s flat in East Ham. They and Baboschi travelled in convoy to Bounds Green. The appellant was by this time driving the Mercedes because Bechian said he was tired. There was possibly a third car in the convoy. They arrived in Brownlow Road and parked in Maidstone Road, approximately 100 metres from Bounds Green underground station. Mr Alecu claimed that almost as soon as he got out of the Mercedes a fight started between Baboschi and others and a group of other men who had gathered in the road. Bechian suggested that they should leave immediately and they did.
11.
This account was contradicted by the evidence for the prosecution. It was clear that Iosif Baboschi had already been in Bounds Green during the evening of 18 January. His mobile telephone made and received calls between 6.11 pm (call 370) and 6.18 pm (call 381) using a cell site which served Bounds Green close to Latham Court. The prosecution submitted that Baboschi required no directions to Bounds Green as Alecu had claimed. From Bounds Green Baboschi’s telephone travelled not to East Ham but to Gants Hill. A series of telephone calls demonstrated that several of the eventual participants in the convoy were gathering in that area. Shortly after 7.00 pm the appellant, Baboschi and Danila were all using telephones served by a cell site at Eastern Avenue, Gants Hill. From Gants Hill they moved to East Ham. Between 8.20 pm and 8.30 pm telephones used by Baboschi, the appellant, Danila, Mayanja, Bechian and Tambue all used a cell site serving Barking Road, East Ham.
12.
Ivan Marian gave evidence that on 18 January 2005 he was with Ionut Ursu in his Rover car. Ionut is Baboschi’s nephew. While giving Ionut a lift home they decided, Marian said, to visit the Asda store at Beckton which is close to East Ham. While Ionut was on the telephone to Baboschi, Marian was at the same time asking Ionut to give him directions. That led to raised voices. Marian took the phone from Ionut and spoke to Baboschi. Marian claimed that Baboschi agreed to meet at the Asda car park. Marian drove on to the car park. Present were Breanha, Cirlan, Taranu, Galatanu and Casaneanu. According to Marian they were present in order to go shopping. The judge invited the jury to consider whether that was the real reason for the meeting. A call had indeed been made by Baboschi to Ionut at 5.49 pm (call 346) which lasted for 3 minutes 17 seconds. At that time Baboschi’s phone was in North London. Ionut’s phone was in the East Ham area. By 6.11 pm Baboschi’s phone was, as we have said, in the Bounds Green area.
13.
It was at this time that Baboschi, on the prosecution case, started to put together the team for the journey to Latham Court. He spoke to Danila at 6.36 pm (call 423) and 6.40 pm (call 430). Shortly afterwards Danila telephoned Mayanja. Mayanja subsequently made calls consistent with the recruitment of Zakyi, Tambue and Cole. After further telephone contact between Baboschi and Danila, at 7.06 pm (call 489), 7.13 pm (call 499) and 7.19 pm (call 511) Baboschi telephoned the appellant and they were connected for some 3 minutes in all. At 7.22 pm (call 517) Baboschi again phoned Danila and at 7.29 pm (call 524) Baboschi telephoned the appellant. By this time the team were beginning to assemble in the Gants Hill area.
14.
In the meantime, Marian and his friends had returned to Latham Court. At 8.13 pm (call 586) Marian received a call from Baboschi (then in Gants Hill) who told him that he knew where he lived and would be coming over to “step over” him.
15.
Cell site evidence demonstrated the movement of the convoy from East Ham to Bounds Green. Danila drove a BMW car. With him were Zakyi, Mayanja, Tambue and Cole. Baboschi was in a Volkswagen car driven by a man named Bobi. The convoy was led by the appellant in the Mercedes and there was probably a fourth vehicle. Bystanders described the group as numbering altogether up to 15 men.
16.
The first phone to use a cell site in the Bounds Green area was in Zakyi’s possession. That call was received at 8.56 pm (call 618). At 8.57 pm (call 621) Baboschi telephoned the appellant. Both phones were using a Bounds Green cell site. At 8.58 pm (call 622) Baboschi telephoned Marian and at 8.59 pm (call 623) Marian returned the call. According to Marian they argued. Marian said he was trying to calm Baboschi down. Baboschi told him that he would be there in two minutes and he, Marian, should go outside to wait for him. Marian decided to leave the flat because it would be safer to do so. Others in the flat were aware of the looming confrontation and they too decided to leave. Marian gave evidence that he and Culicov crossed Brownlow Road and stood at a bus stop on the opposite side of the road. Breahna stood at the bus stop on the underground station side of the road outside James the florist. Varga gave evidence that he was one of the last to leave the flat. He had a car parked in the parking area to the rear of the flat. He and Radu Galatanu got into the car and as they did so, Cirlan and Casaneanu arrived and climbed in behind them (summing up transcript page 79G). Varga drove the car from the car park and down the alleyway which emerged onto Brownlow Road alongside James the florist.
17.
Marian continued that immediately after he arrived at the bus stop on the far side of Brownlow Road four cars pulled up in the mouth of Maidstone Road. He thought that a fifth car arrived shortly afterwards. People got out of the cars, most of them carrying baseball bats, metal tubes and knives. Similar evidence was given by Culicov. By now Varga’s car had, on his evidence, arrived at the junction between the alleyway and Brownlow Road. He and Radu gave evidence that they saw Baboschi get out of his car followed by others. A passing motorist saw the BMW stop and the boot was opened from inside. Danila went to the boot and removed 3 baseball bats. He handed out two and kept one for himself.
18.
Marian said that he went towards Baboschi and identified himself. Baboschi aimed a blow with a baseball bat at his head. It connected with Marian’s wrist. He saw that others were coming for him, he estimated 13 or 14 men. A second blow struck him on the shoulder and he ran towards the traffic lights. As he ran he again saw Breahna on the Latham Court side of the road. Culicov was also running. Culicov said that he too was struck with a baseball bat. One blow caused a cut to his head. Someone came for him with a knife which he grabbed causing a cut to his hand. He too ran towards the junction outside Bounds Green underground station. Radu Galatanu Varga’s front seat passenger, gave evidence that among those who got out of the cars was the appellant. He knew him. He was standing close behind Baboschi but Radu could not say whether he was armed. Someone kicked the car. Varga gave evidence that Baboschi aimed at something with a baseball bat. He saw the appellant and others surrounding Marian. Culicov and Marian managed to run. The appellant appeared to direct members of his gang after them by gesticulating towards them. Four or five men ran after them. As the appellant passed the car he kicked it. Varga drove to the traffic lights and crossed the junction into Durnsford Road. After some 200 to 300 metres he stopped to enable Cirlan and Casaneanu to get out of the car. He then turned the car around because he was aware of something which had been happening at the ambulance parked close to the junction on Bounds Green Road.
19.
A local shop keeper Mr Mustafa Gok described a group of people running along Brownlow Road towards the junction pursued by another group of about 15 people armed with metal sticks, baseball bats and a hockey stick. One of the men being pursued was hit on the head. Mustafza Klier, driving a Citroen car, approached the lights northwards from Bounds Green Road and turned right into Brownlow Road. She saw a group of young men attack a person she later identified as Breahna in Brownlow Road. He managed to run around the corner pursued by the same group. Neil Hembley, emerging from the underground station, saw the group run around the corner into Bounds Green Road.
20.
Graham Weatherill was an emergency medical technician with the London Ambulance Service. He had parked his ambulance on the Bounds Green Road side of the underground station in order to attend to the casualty of a fall in Bounds Green Court. As he returned to the rear of his ambulance Mr Breahna entered the cab through the front passenger door, flinging himself backwards to land between the front seats. Others were attacking him through the open door. Mayanja’s hand print was found on the inside of the window. Mr Breahna attempted to get away but was pulled by others into the rear of the ambulance. The group, Mr Weatherill felt 15-20 in number, then piled into the rear of the ambulance and joined in the attack with a golf club and an iron bar which looked like a baseball bat. It was, he said, “merciless”. As this was happening Mr Weatherill called for urgent police assistance. His call was timed at 9.08 pm. He later identified Mayanja and Zakyi as two of Mr Breahna’s attackers.
21.
Rebecca Bowling came out of the underground station onto Brownlow Road with her friend. As they walked towards the bus stop to their left, three or four men ran past them, some of whom were carrying baseball bats. They were followed by a larger group carrying similar weapons. They were heading for Maidstone Road. Mustafa Gok gave evidence that three to five minutes after he had seen the chase passing him in the direction of Bounds Green Road, he saw them coming back again, about 15 men. They all got into cars on Maidstone Road and drove away. One of the cars was a Mercedes which he thought was a CLK. The Mercedes was the first to pull away travelling towards the traffic lights. Mr Michael Mangan was watching this incident from his flat on Brownlow Road. He saw the group running towards the cars, looked at his mobile phone and timed the event at 9.09 pm.
22.
At 9.10 pm (call 638) Baboschi made a call to the appellant’s mobile phone but the connection lasted for two seconds only. His second call at 9.10 pm (call 639) was to Danila and they spoke for 41 seconds. His third call was to Danila at 9.12 pm (call 645) but the connection was for two seconds only. At 9.11 pm (call 640) the appellant’s phone was called by a number of no significance to the trial. The appellant’s phone used a cell site at Elizabeth Blackwell House (Orange cell site 13204 – 270˚) which served the area outside Bounds Green underground station. At 9.14 pm (call 650) Baboschi called the appellant again and this time the connection was for 12 seconds. At 9.16 pm (call 652) the appellant made a call to a number of no significance to the trial. The cell site evidence demonstrated that Baboschi was moving away from the scene in a generally northern direction while the appellant was moving away in a generally south-easterly direction. By 9.14 pm (call 650 and 652) the appellant’s mobile phone was using sectors 13206 and 13203 of the Elizabeth Blackwell cell site indicating that he was then at least one mile to the south-east of the scene of Mr Breahna’s murder.
23.
In his interview under caution the appellant said that Bechian told him that he needed the car to himself. The appellant was dropped off and he took a mini-cab. He did not reveal his destination.
24.
At 10.46 pm (call 786) Baboschi made a call to Marian. Baboschi’s phone was at this time using the Crown House cell site in Barking, not far from King Edward’s Road (an address associated with Baboschi). Marian gave evidence that he told Baboschi that two of his friends were not answering their phones and one of his friends had had his head smashed in. Baboschi replied that that did not matter “as long as everything would be alright”. Baboschi then put “Gabriel” on the phone. Gabriel told Marian that someone had taken the number of the Mercedes compressor which was worth £17,000. (Indeed at 9.28 pm a member of the public had telephoned 999 from a pay phone to report the number of the Mercedes, OE52 CFN, driven away from the scene by the appellant). “Gabriel” said that someone would have to pay up for the car as he would be out of pocket. The call was completed at 11.03 pm. Marian was not in a position to recognise the voice since he did not know Gabriel. The prosecution relied, however, upon a call made at 11.05 pm (call 803) to the appellant’s phone during which the appellant’s phone also used the Crown House cell site. The prosecution invited the inference that Baboschi and Alecu were together and that it was Gabriel Alecu speaking with Marian.
25.
During the course of the prosecution case no witness had identified the appellant as one of those who chased Breahna to the ambulance. However, when Tambue gave evidence in his own defence, he said that he had followed a group which included Baboschi, Mayanja, Danila and Alecu, all of whom were armed. When he turned the corner into Bounds Green Road he saw a number of people at the side and rear of the ambulance. Then he saw Alecu and Danila exit from the rear of the ambulance. Tambue looked inside and saw Mayanja bending over Breahna complaining that he had been stabbed. Baboschi and another man climbed into the ambulance and the attack continued. When they emerged from the ambulance they ran for the cars.
The appellant’s grounds of appeal
26.
The appellant’s grounds of appeal are focused upon the evidence of the appellant’s participation in events at Bounds Green. In his interview he had claimed that he had left the area as soon as the fighting began in Brownlow Road. The case conducted on his behalf was based upon his instructions to counsel which were disclosed following his waiver of privilege. In his statement he said that in Brownlow Road he saw Baboschi strike “the boys” with a baseball bat. He was shocked. From behind the appellant came more men whom, he said, he did not recognise. Gino or Viorel shouted “Gabriel, come in the car”. The appellant got back in the car, turned right into Brownlow Road and at the lights turned left into Bounds Green Road heading south-eastwards towards Wood Green. The cell site evidence was not challenged on behalf of the appellant at trial because it appeared to confirm that by 9.11 pm the appellant was moving away from the scene of the murder which accorded to the appellant’s instructions.
27.
Mr Michael Turner QC first identified in argument a misdirection of fact by the learned judge at pages 27G – 28A of the transcript of his summing up on 15 December 2005. The judge said:
“Baboschi [call] 621 is there at 8.57 and appears to be in the area until 9.22, number 660 which is on page 37. Alecu is there, number 621 at 8.57. He is there, if you turn through … until 9.16, call 652 on page 37. It is something you may wish to consider, in the light of Alecu’s account [in interview] that he left the scene in the Mercedes Kompressor before the attack took place.”
28.
In his reference to the call at 9.16 pm the judge was relying upon the evidence that the Elizabeth Blackwell House cell site served the area of Bounds Green underground station. However, at the jury’s map page 55 was a diagrammatical representation of the Elizabeth Blackwell cell site. Relevant “sectors” were 13202 (30˚), 13203 (150˚), 13204 (270˚), 13205 (330˚), and 13206 (90˚). Only the 270˚ sector of Elizabeth Blackwell House was likely to serve a mobile telephone situated outside Bounds Green underground station. Sectors 13202, 13204 and 13205 served the area generally to the north, north-east and west of the cell site. Sectors 13203 and 13206 served the area generally to the south-east and east of the cell site. Call 640 at 9.11 pm used sector 13204 (270˚), call 650 at 9.14 pm used sector 13206 (90˚), and call 652 at 9.16 pm used sector 13203 (150˚). It is a reasonable inference from an examination of the cell site map that the appellant was moving away from the scene of the killing at 9.11 pm, when his phone picked up sector 13204, and that by 9.16 pm he would have been some distance to the south of the cell site using sector 13203 (in other words, at least a mile away from the ambulance).
29.
At the time the jury’s attention was drawn by the judge to the call made at 9.16 pm they were not also asked to look at the map which differentiated between the directional sectors; nor can counsel find any reference in the transcript of Mr Peter Brown’s evidence to a sector analysis of the Elizabeth Blackwell cell site. Ms Ellis QC and Ms Sidhu were not in court when the judge made his observation to the jury and Mr Alecu’s interests were being represented by other defence counsel. Mr Turner submits that the jury will or may have received the impression that the judge was inviting the conclusion that the appellant was still in the vicinity of Bounds Green underground station at 9.16 pm. The subtlety of the error was not noticed and it went uncorrected. Mr Turner submits that this was a material and important misdirection for which the judge himself was not responsible, the analysis not having been carried out during the evidence given by Mr Peter Brown, the prosecution’s expert, although the source material was available to the jury.
30.
We are invited to consider the impact of this error together with the fresh evidence received via live-link with Bucharest from the witnesses Manuel Petru Cirlan and Catalin Vasile Casaneanu. Cirlan and Casaneanu were, as Varga and Galatanu said in evidence, rear seat passengers in Varga’s car. They alighted from the car in Durnsford Road. Eventually they returned to the flat in Latham Court and were still there when, at 2.30 am, the police called. They fled and were not arrested until two weeks later. They made no comment in interview. On their release they returned to Romania. We are content to proceed on the basis that their evidence was not reasonably available to either the prosecution or the defence at the time of the appellant’s trial.
31.
Manuel Cirlan gave evidence via the live link that he entered the UK illegally in October 2004. Breahna was his childhood friend. He told the court that on the evening of 18 January Ivan Marian (known to Cirlan as Galateanu) was arguing with someone on the telephone in the flat. Marian told those present that the person on the phone wanted him to go outside to speak to him. Marian and his friends left. Two or three minutes later Cirlan also left. He followed down the alleyway until he emerged alongside the James the florist shop. Cirlan said that he saw his friend on the far side of the street. He looked to his left and saw a number of cars parked. Marian walked towards between 5 and 7 men who had got out of the cars. Cirlan was asked about those who had arrived and parked in Maidstone Road. He saw a Mercedes and he saw Gabriel getting out. He was standing by the car with keys in his hand just watching. There was an exchange of words between Marian and the other men. Cirlan suggested to Varga (known to Cirlan as Iulius) that he fetch the car. There was fighting and pushing between the two groups. Then they started to run in the general direction of Latham Court. The car was driven down the alleyway by Varga. At that point, said Cirlan, “Gabriel was no longer there. When the car came, he was no longer there”. Cirlan got into the car with Casaneanu. The car made a left turn. At the mouth of Maidstone Road, some 75 metres from the alleyway, Varga did a U-turn and drove back towards the traffic lights. Cirlan said that this time he saw the group of men returning from Bounds Green Road; they were running. At the same time he saw the Mercedes driving off. He estimated that he saw the Mercedes leaving about 10-20 seconds before he saw the group returning. Varga drove over the traffic lights into Durnsford Road. After about 500 metres Cirlan asked the driver to stop so that he and Casaneanu could get out. Asked about the circumstances in which he came to make his statement he said that a friend had called from the UK. Gabi’s family wanted to speak to him. Gabi’s mother and sister asked him to make a statement to Gabi’s solicitor. Cirlan was reluctant to do so. He saw his family twice and on the second occasion agreed to make a statement saying what he had seen.
32.
Catalin Casaneanu also entered the UK illegally in the Autumn of 2004. He had known Breahna for a long time and was his friend. Casaneanu’s evidence was almost identical to that of Cirlan in his description of Marian’s argument over the telephone, their departure from the flat and the arrival of the Mercedes. He also said that he saw Alecu standing alongside the car with keys in his hand looking nervous and agitated. At this time Marian was on the other side of the street. Marian walked towards between 5 and 7 people who had arrived in the car. When he reached them he started fighting. Casaneanu said that he was frightened and asked Varga to go and fetch the car. When the car arrived he and Cirlan got in. As they drove from the alleyway he saw a group of men running towards the junction. Varga turned left into Brownlow Road but then did a U-turn towards the lights. He then saw the Mercedes drive off along Maidstone Road and the group running back from the underground station. He did not see Alecu in either group. In all, he said, the Mercedes was parked in Maidstone Road for 5-10 minutes. Casaneanu said that he too had been called by a friend who said that Alecu’s family wanted to speak to him. He met Alecu’s mother and sister on two occasions. Alecu’s mother was crying. He was reluctant to make a statement but on the second occasion they met he agreed to do so.
33.
Mr Turner QC submitted first, that the evidence of Cirlan and Casaneanu was capable of belief; secondly, that had the jury heard this evidence it would have been relevant to two crucial issues:
i)
whether the appellant participated in the pursuit of the men who ran towards the underground station; and
ii)
whether the appellant could, as Tambue claimed, have entered the ambulance.
34.
The court’s first task is to consider whether to admit the evidence. For this purpose we must decide whether the evidence is capable of belief and, if so, whether it may afford a ground for allowing the appeal (
section 23(2)(a)
and (b)
Criminal Appeal Act 1968)
. If the court decides to admit the evidence it must, finally, decide whether the verdict of the jury is unsafe. This is a decision for the court to make having regard to the other evidence in the case. However, the court must forebear to reach its own conclusion as to the guilt of the accused and must ask only whether the verdict is safe. This process of consideration was explained by Lord Bingham of Cornhill in
Pendleton
[2001] UKHL 16
,
[2002] 1 WLR 72
at paragraphs 18 and 19. In
Dial & Another v State of Trinidad and Tobago
[2005] UK PC 4,
[2005] 1 WLR 1660
at paragraph 31 Lord Brown of Eton-under-Heywood summarised the effect of the authorities as follows:
“31.
In the Board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context on the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view “by asking whether the evidence, if given at the trial, must reasonably have affected the decision of the trial jury to convict”;
R v Pendleton
[2002] 1 WLR 72
, 83, para. 19. The guiding principle nevertheless remains that stated by Viscount Dilhorne in
Staffords
case
[1974] AC 878
, 906, and confirmed by the House in
R v
Pendleton:
“while … the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe].” ”
35.
As we have noted, Varga gave evidence that he was one of the last to leave the flat. He went immediately to his car parked in Latham Court. He, Radu, Cirlan and Casaneanu all got into the car in Latham Court. This was not the evidence of Cirlan and Casaneanu. They both said that Varga was sent from the roadside to fetch the car; that they waited for Varga and, when he arrived at James the florist, they climbed in. There are, however, two curious inconsistencies between Cirlan’s account in evidence and the account contained in his witness statement dated 23 April 2009. In his statement Cirlan said that he left the flat with Casaneanu, Breahna, Varga, Radu and Taranu in order to see what was happening. They walked down the alley to the florist. To his left he saw a confrontation between Marian and a group of between 5 and 10 men. Marian was asking, “Who is Baboschi?” He continued, “He was talking to the group for 2 or 3 minutes approximately”. He
then
saw the arrival of 2 or 3 cars. The first was the Mercedes. He saw Gabriel get out of the Mercedes and stand next to it holding his keys. He also saw Narcis Danila get out of the driver’s door of the BMW. Then, “When the 3 cars arrived on the scene we went back to Iulian’s car because we thought there was going to be trouble … we walked back down the alleyway to the car park and got into the car.”
36.
The account given by Cirlan in his statement is therefore quite different in two important respects from the account which he gave in his oral evidence. We need to consider what may have been the reasons for these inconsistencies in Cirlan’s accounts. Cirlan’s initial claim in his statement that the Mercedes and BMW did not arrive until after the first confrontation between Marian and Baboschi was, we conclude, a transparent attempt to place distance between Alecu and Danila on the one hand and Baboschi and his team on the other. The difference between the two accounts is so stark that we find it difficult to accept that the account given in the statement is mere error of recollection. Secondly, we do not understand how there can have been a difference of recollection as to the point at which Cirlan and Casaneanu entered Varga’s car. The effect of the account given in evidence is that Cirlan was present throughout on Brownlow Road. The effect of the account given in his statement is that there was an interval of time when he was walking away from Brownlow Road and could not, in that event, have seen what was happening in the street.
37.
We now turn to compare Cirlan’s account with that of Casaneanu. In evidence he gave an account strikingly similar to that of Cirlan. In his witness statement, also dated 23 April 2009, appear two inconsistencies identical to those we have already identified in Cirlan’s case. In his statement Casaneanu also said that from his vantage point by James the florist he saw Marian on the far side of Brownlow Road walking towards a group of men some 30-50 metres to his left, none of whom Casaneanu recognised. He continued, “as he approached this group, 3 or 4 cars arrived. The first car was a dark coloured Mercedes”. Casaneanu said that he saw Gabriel Alecu getting out of the car looking “a bit nervous and agitated”. Then he saw the BMW and Narcis Danila alight from it. He too was agitated. Secondly, Casaneanu also said in his statement that he, Varga, Radu and Cirlan “walked back down the alley to the car park and got into the car”. We have already expressed our unwillingness to accept that Cirlan’s inconsistencies were the result of fallible memory. The knowledge that identical inconsistencies appear in the evidence of Casaneanu leads us to the conclusion that the witnesses have collaborated both at the time that their statements were made and more recently before they attended to give their evidence. We are not persuaded that the evidence we have received is capable of belief.
38.
We have further cause for anxiety about the truth of the fresh evidence. We know that the Mercedes car, when it left Maidstone Road, travelled southwards along Brownlow Road to the traffic lights at the junction where Mr Alecu turned left along Bounds Green Road. Neither Varga nor Radu Galatanu, occupying the front seats of Varga’s car, claimed at trial to have seen the Mercedes leaving the area. Both Cirlan and Casaneanu said in their witness statements and in evidence that as Varga drove into Brownlow Road, they saw the Mercedes leaving. If this was so, Mr Turner argued, it makes less probable Varga’s evidence that Alecu was directing the troops or kicked out at Varga’s car or ran around the corner to the ambulance. However, both Cirlan and Casaneanu were asked in evidence in which direction the Mercedes had left the area (neither having dealt with this question in his witness statement). Both replied that the Mercedes was driven northwards along Maidstone Road. This was clearly an error. Cirlan and Casaneanu both made the same error. We do not accept that they were coincidental errors. This is further confirmation of collaboration between the witnesses before they gave their evidence. Mr Turner was driven to submit that perhaps the Mercedes had taken a circuitous route to the junction before proceeding south-eastwards along Bounds Green Road. Such a possibility is inconsistent with the instructions given to counsel by the appellant. It is also inconsistent with the thrust of the cell site evidence to which we shall return in a moment. We do not accept that these witnesses saw a Mercedes move off along Maidstone Road. If they had seen it move off they would have seen it driving into Brownlow Road towards the traffic lights.
39.
We conclude that both witnesses can only have made a claim to see the Mercedes leave the area because they believed it would assist the appellant’s appeal. Contrary to their assertions that they did not know how their evidence might assist Mr Alecu’s appeal we are sure that they came prepared to identify the moment when the Mercedes moved off and that they knew exactly why that evidence might be important. We have no hesitation in concluding that they saw no such thing. In our judgment, the credibility of the evidence now given by Cirlan and Casaneanu, seven years after the death of their friend, is undermined by their false claim to the same circumstantial detail. We decline to admit the evidence under
section 23 Criminal Appeal Act 1968
since we do not accept that, in its material parts, it is credible.
40.
Had we admitted the evidence, we would have been driven to the conclusion that it had no effect upon the safety of the jury’s verdict. The fact that Cirlan and Casaneanu did not see Alecu directing the chase or striking Varga’s car does not, in the circumstances of a fast moving and violent incident, undermine the evidence of Varga. Even if, which we do not accept, the jury could conclude that Cirlan and Casaneanu saw the Mercedes move off several seconds before the other cars, Tambue’s evidence is not thereby undermined, for reasons which we shall describe in the context of the cell site evidence.
41.
We turn to the cell site evidence in more detail. The time of the attack on Mr Breahna in the rear of Mr Weatherill’s ambulance is fixed at 9.08 pm by Mr Weatherill’s call for assistance. The attacking group was seen to be returning to its cars at 9.09 pm. While this time cannot be guaranteed because it depends for its accuracy on the reliability of Mr Mangan’s mobile telephone clock, it is consistent with the prevailing evidence as to the rapid progress of events.
42.
Mr Duncan Brown, the expert instructed on behalf of the appellant, and Mr Peter Brown who gave evidence for the prosecution at trial have, at the invitation of the court, had a pre-hearing experts’ meeting with a view to reaching agreement as to the true effect of the cell site evidence. They have reached agreement and we are grateful for their work. They have saved a good deal of court time in the analysis of the prosecution evidence on the one hand and Mr Duncan Brown’s expert report on the other. Their agreement is as follows:
“1.
The Curtis House cell site 4867 activated at 20.57 (call 621) was a serving cell for the vicinity of Bounds Green station at the time.
2.
Calls 626 and 627 (activating Barrington Court at 21.01.36 and 21.03.56) would serve the immediate vicinity of Bounds Green Station.
3.
The 3 calls – 635 (21.09.40), 638 (21.10.23), and 640 (21.11.20) which activated cell 13204 at Elizabeth Blackwell House (270˚) are also consistent with being activated from the immediate vicinity of Bounds Green station, each of those calls is equally consistent with either being at the scene or moving to the east or south east of the station.
4.
Call 650 (21.14.42) could not be activated from the immediate vicinity of Bounds Green Station, it being a 90˚ sector. Similarly, neither could call 652 (21.16.37) which was a 150˚ sector. The Elizabeth Blackwell mast is located around 1 mile from Bounds Green station.”
43.
It follows that the true effect of the cell site evidence is consistent with the prosecution case that the appellant was seen by Varga to be directing the attackers towards the fleeing men and it is also consistent with the evidence of Tambue that he saw the appellant emerging from the ambulance while the attack on Mr Breahna was ongoing.
44.
We turn finally to the appellant’s ground of appeal that the judge inadvertently misled the jury as to the impact of the cell site evidence upon the appellant’s defence. It is important in our view to have regard to the judge’s precise words. He was referring at page 28 of his summing up not to a dispute as to timing but to the effect of the admitted timing upon the appellant’s claim in interview to have left the scene before the attack. He referred to Alecu being “in the vicinity”. It is true that by 9.16 pm the Mercedes was not in the vicinity of Bounds Green underground station but it was at least a mile to the south-east of that position. Nevertheless, the case conducted on behalf of the appellant on his instructions was “that by 9.11 pm he was moving away from the murder scene”. As Ms Ellis QC states in her observations on the appellant’s grounds of appeal, this case was fully supported by the cell site evidence. We have no doubt that this would have been explained to the jury by reference to Mr Peter Brown’s evidence, and perhaps the cell site maps, during counsel’s closing speech. Tambue’s evidence was that Alecu left the ambulance before others climbed back in to complete the attack on Mr Breahna. There was, therefore, ample opportunity for the appellant to have returned to the Mercedes in order to be the first away from the scene and to be moving in a generally south-easterly direction, still using the 270˚ sector of Elizabeth Blackwell House by 9.11 pm. Secondly, the cell site evidence was consistent with the preponderance of the evidence of the independent witnesses that the group ran back to their cars and that the Mercedes was the first away. While we acknowledge the possibility that the judge’s direction was capable of misleading the jury as to the precise time at which the appellant left the scene, we conclude that it had no impact upon the safety of the verdict. The cogency of the evidence derived from (1) the admitted time of the attack (2) the observed movements of the group as a group and (3) the narrow margin of time between the departure of the Mercedes and the rest of the cars parked in Maidstone Road.
45.
Quite apart from the weight of the evidence of events at Bounds Green it seems to us that the evidence of a joint enterprise to carry out an armed attack upon Marian and his friends was overwhelming. The appellant’s explanation in interview of his presence in Bounds Green and his claim to be shocked at the commencement of violence were not credible. Finally, notwithstanding the powerful effect of the evidence against him the appellant chose to remain silent at his trial. None of the incriminating evidence was contradicted or explained by the appellant himself.
46.
For these reasons we conclude that it is not demonstrated that the verdict of the jury was unsafe and the appeal is dismissed.