Neutral Citation Number:
[2004] EWCA Crim 2521
Case No:
200103828 C2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Newcastle
The Honourable Mr Justice GIBBS
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
29/10/2004
Before :
THE RIGHT HONOURABLE LORD JUSTICE MANCE
THE HONOURABLE MR NEWMAN
and
THE HONOURABLE MR JUSTICE FULFORD
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Between :
DAVIES
Appellant
- and -
THE CROWN
Respondent
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Miss Vera BAIRD QC & Mr Andrew Scott
(instructed by Alderson Dodds) for the
Appellant
Mr D Robson QC & Mr Christopher Prince
for
The Crown
Hearing date : 7 October 2004
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Judgment
Lord Justice Mance:
Introduction
1.
The appellant, Andrew Davies, was convicted on 14
th
June 2001 in the Crown Court at Newcastle before Mr Justice Gibbs, by a majority of ten to one, of the murder of Andrew Lansdown and causing grievous bodily harm to Steven Wemyss with intent. He was sentenced to life imprisonment for murder with 15 months concurrent for causing grievous bodily harm with intent. A co-accused, David Powell, was acquitted of like charges. The appellant now appeals against conviction by leave of the Full Court (Thomas LJ, Gage J and Sir Richard Rougier) granted on 15
th
July 2004 on one single ground, namely whether trial counsel should have objected to the admissibility of certain evidence of visual and voice recognition by reference to which Steven Wemyss claimed to identify the appellant as the person committing the two offences of which the appellant was convicted.
2.
The Full Court refused applications to appeal on other grounds. These included a proposed ground to the effect that the trial judge directed the jury incorrectly in summing up in respect of the recognition evidence. During the course of submissions before us, Miss Baird QC for the appellant (who was not trial counsel) applied to reopen that refusal and for leave to pursue the point. Mr Robson QC for the Crown raised no objection to the grant of leave. We propose therefore to consider this further ground as if leave had been given, without needing to express any concluded view about our jurisdiction to grant leave. We make only these observations.
S.1
of the
Criminal Appeal Act 1968
provides:
“(1) Subject to subsection (3) below, a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.
(2) An appeal under this section lies only-
(a) with the leave of the Court of Appeal; or
(b) if the judge of the court of trial grants a certificate that the case is fit for appeal. …”
S.31
of
the Act
provides:
“(1) There may be exercised by a single judge in the same manner as by the Court of Appeal and subject to the same provisions-
(a) the powers of the Court of Appeal under this Part of
this Act
specified in sub
section (2
) below; ….
(2) the powers mentioned in sub
section (1
)(a) above are the following-
(a) to give leave to appeal; ….
(3) If a single judge refuses an application on the part of an appellant to exercise in his favour any of the powers above specified, the appellant shall be entitled to have the application determined by the Court of Appeal.”
In our view once a Full Court has considered a possible ground and refused leave on it, then normally that is and should be the end of it. The Full Court has in terms of
s.31(3)
“determined” the application in that respect. If a Full Court, hearing a renewed application, refuses it on all grounds, the applicant has no right to either an appeal or a re-hearing before another Full Court of the same application. The procedures prescribed by statute and the principles governing the grant of limited leave developed by this court (cf e.g.
Thomas
[1999] 2 CAR 6) would otherwise be undermined. The fact that the Full Court happens to grant leave on one or more ground or grounds is not the thin edge of a wedge allowing the appellant to re-argue the question of leave on any other ground or grounds refused. There may, perhaps, be exceptional cases, such as radical change of circumstances or the situation (which Miss Baird submits applies here) where it becomes apparent on an appeal on a permitted ground that a ground previously refused is in some unforeseen way inextricably linked with the permitted ground. In many if not all such cases the true analysis may be that the fresh application is in reality for leave on different grounds to any previously considered. But, as we say, we need not, in view of the Crown’s attitude, reach any concluded views on such matters.
3.
The facts in outline were these. At about 10.00 p.m. on Sunday, 12
th
March 2000 two men with shotguns entered the house at 15 Cypress Gardens, Killingworth in Northumberland, where Steven Wemyss lived with his mother Annette Wemyss and brother Majit Wemyss. The first gunman wore a “Scream” horror mask (based on the famous missing picture), the second a Balaclava. Five people were present in the house - Steven, Annette and Majit Wemyss, Samantha Robinson (a friend of Steven) and Andrew Lansdown. During the course of the incursion, the Scream man fired two shots, the first hitting Steven Wemyss, the second hitting Andrew Lansdown, in each case below or around the knee. The balaclava man then shot Andrew Lansdown in the back, as he crawled away, killing him. Steven Wemyss had known the appellant for more than ten years, and they had last seen each other and spoken only two hours prior to the incursion. Steven Wemyss was sitting on a settee as the masked men entered. He said in evidence with respect of the Scream man that:
“I could see part of his face. I recognised the eyes and skin colour as being Andrew Davies. He was wearing dark clothing, not the red fleece he’d had on earlier [i.e. two hours earlier]. He held a shotgun. The first man was the same build and height as Andrew Davies. The other person was a bigger build, a bit taller, and wore a balaclava. ….No-one said anything at first. I walked over and said “Hey, what you’re doing?” He pushed us, the Scream one did. I was walking towards him. He pushed me quite hard and I stumbled back next to the television. …..The man in the Scream mask shouted “Where’s Chrissie?” It was Andrew Davies’s voice. I’ve heard his voice before. I said “He’s not here”. He was standing between the settee and the door. The second man was just inside the door. The one in the Scream mask pointed at my leg and shot it. Nothing else was said. …. ”
4.
Once shot, Steven Wemyss was effectively out of action and gave no presently relevant evidence. Cross-examined, he said that he had had been drinking, and had had six or maybe seven lagers that day, four or five of them that night. The Scream mask used was never recovered and a variety of such masks exists on the market. One was in court, which Steven Wemyss said was “similar” to the one used. The eye holes of the mask in court were covered with mesh and Steven Wemyss said that he “thought” that the mask used by the intruder had eye holes covered with mesh, like the mask he was shown, but nevertheless he said that he did have a clear view of the eyes. He said that he had a sufficient view of the eyes and eyeball to enable him to make a recognition of the man behind the mask. Miss Baird QC for the appellant produced another version of a Scream mask on this appeal from which it appears that the eyes in such a mask may, following the picture, have fairly substantial size.
5.
Samantha Robinson had also known the appellant, though not for very long. She had spoken to him once and heard him speak on a few occasions. She too gave evidence that the Scream man asked “Where’s Chrissie?”. She said:
“I wasn’t quite sure of the voice at the time because I was in shock, and I was not really sure later.”
A set of recordings by ten different persons, one of them the appellant, was made up consisting of some 86 words, including the words “Where’s Chrissie?”. Steven Wemyss heard it played twice and was asked whether he could identify Andrew Davies; he correctly did this from among the ten recordings. Samantha Robinson was asked the like question and wrongly identified a recording made by a foil. The other three persons present in the house at the time of the incursion heard a voice, but not what was said, and did not claim to recognise anyone.
Background
6.
Some understanding is necessary of the local geography and the kinship and affinity of those involved. Killingworth is a new development some 6 to 7 miles north of Newcastle. Mrs Sheila Wemyss, a sister-in-law of Annette and aunt of Steven and Majit Wemyss, also lived in Killingworth with her partner, Robert Lumsden. So too did a Mr and Mrs Goulden and their two daughters, Colleen and Carol, the latter the girlfriend of Daniel Minto, who was a friend (and it may be cousin) of the appellant. About 1 to 2 miles south in the direction of Newcastle is the older settlement of Forest Hall, where the appellant’s mother and also Powell lived, both in Balliol Avenue. Three or so miles further south, at the east end of the City of Newcastle, is Byker. The appellant’s aunt Mrs Sandra Minto lived in Byker. So too did Christopher Wemyss and his brother, Barry, cousins of Steven and Majit Wemyss. Christopher Wemyss was however a frequent visitor to 15 Cypress Gardens, Killingworth, near to which his girlfriend Leila Bailey lived. The landlady of the West House public house in Killingworth described Steven and Majit Wemyss in evidence as more “wind-up merchants” than serious troublemakers, but said of Christopher Wemyss that, although she would not recognise him, he had “a reputation for carrying weapons, and his presence could attract trouble”. The appellant lived with his girlfriend Rachel Kelly in her home in Annitsford which lies north from the centre of Killingworth. The evidence was that it would take an hour or, going briskly, 51 minutes for the appellant to walk from his mother’s house in Forest Hall to Rachel Kelly’s home in Annitsford.
7.
The Crown relied upon a long background of incidents as leading up to the alleged incursion by Davies and Powell. Some time before Christmas 1999 Steven and Christopher Wemyss burgled a house occupied by a woman called Christie Robinson, taking electrical goods. Shortly afterwards one of them, said to be Christopher Wemyss, paid her £20 as compensation, but this was not regarded as enough. There was also some evidence of a pre-Christmas incident during which Christopher Wemyss was thought to have abused Carol Goulden. As the judge pointed out to the jury, another possibility was that this was one and the same incident as occurred according to other evidence after Christmas in the Planet Earth night club, to which we will come.
8.
The appellant heard of the pre-Christmas incident or incidents, and went with Daniel Minto and another in the small hours one night to 15 Cypress Gardens, where the appellant broke a window. Christopher Wemyss was staying there that night. The appellant accused Christopher Wemyss of involvement in the pre-Christmas incident or incidents. Christopher Wemyss denied this, at least as regards the burglary. The appellant was saying “Get Chrissie here” or “Get out Chrissie”, but Christopher Wemyss refused to come. According to Annette Wemyss, this was said in a horrible tone of voice, not a soft voice. Later during the day, the appellant returned to 15 Cypress Gardens with Powell, the police were called and the two ran off.
9.
In early 2000 Christopher Wemyss saw the appellant on a bus, and challenged him to get off and fight, which the appellant refused to do. The appellant also denied that he had broken the window. Around this time, according to Colleen and Carol Goulden, Majit Wemyss and Andrew Lansdown gave them drunken abuse at the Planet Earth night club. The judge left it to the jury to consider whether this and the pre-Christmas incident in a club were the same incident, misdated in one way or the other. On Saturday, 4
th
March 2000 a group of cars full of unfriendly men, led by one Christopher Lee but not including the appellant or Powell, paid a visit to 15 Cypress Gardens, where Steven, Majit and Annette Wemyss were at home, together with Barry Wemyss. On 5
th
March 2000 there was another visit to 15 Cypress Gardens, this time by the appellant and Powell, who said they were looking for Steven and Chrissie Wemyss. According to Barry Wemyss, Christopher Wemyss went to the door and there was a brief chat. The appellant’s explanation in evidence of this visit was that he went to resolve the situation between him and Christopher Wemyss and that “there were rumours that people were using my name to solve people’s problems and I wanted to sort it out because that wasn’t true”. According to the appellant, Christopher Wemyss was not in fact there at the time of this visit. The appellant was asked why he did not find out where Christopher Wemyss lived, to which he replied:
“Well, why should I? I could go to Anna’s [i.e. Annette Wemyss’s] house. He spent most of his time there. He was going out with Leila Bailey in Killingworth, and she didn’t say why not go to his house. I assumed that Christopher Wemyss would be either at Julie Dalton’s, which was at the back of Cypress Gardens, or at Cypress Gardens”
10.
On 9
th
March 2000 a police officer attending at Powell’s house noticed that the appellant was also there, using the telephone. On Friday, 10
th
March Steven and Christopher Wemyss were going to the West House public house, when they saw Carol Goulden, with whom Christopher then exchanged words. According to her he asked where Daniel Minto was and was carrying a metal object which she took to be a bar but agreed could have been a machete. Shortly after this incident, at 11.25 p.m. Carol Goulden then used her mobile to telephone Daniel Minto who was in the West House. According to her, Daniel Minto, Christopher Lee and others then came out of the West House. Steven Wemyss said that, a little later in Dove Street near the West House, Christopher Wemyss and he again saw Carol Goulden and she asked Christopher to come over. A group of ten or so men then attacked Steven and Christopher Wemyss, using a machete which the latter had himself been carrying to inflict on him a bad gash to the head. Shortly after the start of this attack, at 11.43 p.m. Daniel Minto used Carol’s mobile to telephone the appellant at Rachel Kelly’s address. The appellant then telephoned Powell. The Crown case was that this was to ask for a lift to the scene, which Powell refused. The appellant said that it was to see if Powell could help with some DIY work on the next day, but he added under cross-examination that it was also to ask for a lift, since Daniel Minty had been “a little bit concerned for his well-being”. The appellant in the event took a taxi to Dove Street, where he was seen by a policeman to arrive at 11.50 p.m.. He walked up to the police cordon that had been set up. He then went to the Gouldens’ house where he met Daniel Minty.
11.
On the morning of Saturday, 11
th
March Steven Wemyss, his brother in law (Robert Lumsden) and the appellant were seen talking in Steven’s garden by Samantha Robinson. At about 11.30 a.m. on Sunday, 12
th
March the appellant met Christopher Wemyss and his girlfriend (Leila Bailey) in West Bailey, and the appellant asked whether Christopher and he were “sweet”. Leila said “Don’t knock on my door” and Christopher said that if he knocked on anyone’s door, he should knock on Christopher’s. The atmosphere or mood was all right, and the conversation lasted about three minutes. According to both Christopher and the appellant, the appellant also asked if Christopher had been looking for him with a machete, to which Christopher said no, and they parted amicably with Christopher thinking that the trouble between them was sorted out.
12.
From about midday to 7.00 p.m. the appellant was drinking, mainly lager and snakebites in the West House. In one public house he met Julie Bailey, a friend of Annette Wemyss, and, she said in evidence, he asked her whether she was “all right?”, to which she replied: “I’m not because of the trouble you have caused my friend Anna”. At or after 7.30 p.m. the appellant went to a house of Sheila Wemyss in Swindale Drive, Killingworth and asked her and Robert Lumsden among other questions where Christopher Wemyss was. The appellant was wearing a red jacket as he had been earlier that day. The appellant’s case was that he went to sort out an issue arising out of damage done by Christopher Lee to Sheila Wemyss’s door. At about 8.00 p.m. that evening Majit Wemyss went with Andrew Lansdown to collect two videos and then to 15 Cypress Gardens, where they found the appellant in front of the house. According to Steven Wemyss, the appellant knocked on the door and asked “Where [is] Chrissie?”, to which Steven replied that “He usually comes in at about 10.00 p.m.. He normally comes to see Leila”.
13.
The appellant also asked Andrew Lansdown whether he was Andrew Lansdown and then asked: “Have you been looking for me in a nightclub?” which Lansdown denied. The appellant then put to Lansdown that Lansdown had been looking for the appellant in the Icon and had said “I am white Andy. Where is black Andy?” According to Majit, the atmosphere was not friendly, and became angry as they spoke. Leila Bailey also came up and asked why the appellant was looking for Christopher, and the appellant walked off saying “So it’s going to be like that”. Robert Lumsden said that he heard the appellant say to Andrew Lansdown: “This is not finished”. Annette Wemyss overheard much of this conversation, which she said was not in a very good atmosphere. She said that Leila Bailey and the appellant had argued and shouted at each other. Robert Lumsden said that Leila had called the appellant a black bastard, and the appellant had called her “a fucking whore”. In his view, the atmosphere changed when Lansdown came on the scene. Leila Bailey said it was too long ago to remember much of what was said; she had got angry and walked off.
14.
The appellant when interviewed after the shootings made no mention of his visit to 15 Cypress Gardens at 8.00 p.m. He told lies to the effect that he had not been there for some time and had not seen Leila Bailey. In evidence, he admitted the visit, and that he had asked whether Christopher Wemyss was there, but denied that he had been told that he might be back at 10.00 p.m. or at any time. He said that Leila Bailey had gone beserk when he said that he was looking for Christopher, and that he had walked off and returned to the West House.
15.
Before 8.30 p.m. on 12
th
March 2000, the appellant arrived at the Gouldens’ house, trying to persuade Daniel Minto, who was there, to come out for a drink to celebrate the appellant’s birthday (which was the next day). While he was there, Mrs Sandra Minto made two telephone calls to the house, in the belief and fear that Christopher Wemyss was outside her house and about to break windows. Between the two calls, someone (not Carol Goulden) rang Powell’s number a total of three times. After the second call, a taxi was at 8.53 p.m. summoned for the appellant with a pick up point of the West House public house, to go to Byker via Forest Hall. Carol Goulden said that the appellant left the house then. The taxi duly was despatched at 9.06 p.m., collected the appellant at the West House and proceeded to Balliol Avenue, where it deposited the appellant at or close to 9.15 p.m. He told the driver that he was going to see his brother. The driver’s general “impression” was that his fare went off in a direction opposite to that in which Powell lived. The Crown case was that he went to Powell’s house, and there changed his prominent red jacket for darker clothes, and that both then picked up guns and went on foot to 15 Cypress Gardens. As regards Powell, the jury was not so satisfied. After the shootings, a police search found the appellant’s red jacket at the appellant’s mother’s house in Balliol Avenue. The appellant’s evidence was that he had not been aware of the content of Mrs Sandra Minto’s calls to the Gouldens’ house, that his calls to Powell were to try to persuade him to come out for a drink (and to borrow money from him for the purpose). According to both the appellant and Powell, Powell refused both propositions. According to the appellant, he had therefore taken a taxi from the Gouldens’ house to his mother’s house to try to get some money or other birthday present from her. That also failed, but he said that he kept most of his clothes at her house and changed his clothing there, before walking home. The evidence of his girlfriend, Rachel Kelly, was that he arrived home during the final credits for a programme ending at 10.00 p.m. However, bearing in mind the time at which he was dropped by the taxi and the visit on his case to his mother’s house, the Crown observed that the appellant could not realistically have been home in Anniston by 10.00 p.m. In his third and fourth interviews after the shootings, he gave two different accounts of the route he had taken home. In evidence, he admitted that both accounts were lies, told (he said) to avoid alerting the police to the fact that his true route was taken with a view to stealing from a building site. In evidence, he gave another route, but it fell to the judge to remind the jury that they might think that he changed even this new account in the course of evidence.
16.
Telephone records showed a series of calls late that evening, in particular from the appellant’s home at 10.12 p.m. to the West House and at 10.17 p.m. to Powell and the West House and from Powell to the appellants’ house at 10.59 p.m., at 12.17 a.m. and at 1.18 p.m. The appellants’ brother, David, also rang the appellant’s house at 12.20 a.m., according to the appellant to say that he had heard that the appellant had been shot or stabbed and that there had been an incident in Killingworth, and the appellant rang his brother at 1.23 a.m. The Crown’s case (denied by the appellant and Rachel Kelly) was that the earlier calls were made by Rachel Kelly trying to find where the appellant was. The appellant’s case was that he had made all the calls from his house after returning there on foot from his mother’s house. He also said that he had prepared Rachel Kelly and himself something to eat after his return.
17.
Two shotgun cartridges, of the same somewhat unusual type used in the shootings, were recovered by the police from a skip in which Powell had been seen burning things at work three days after the shootings. Powell explained that he had found four cartridges while out ferreting, and disposed of them rather than leave them for children to find. He had done this by burning two, but had been hit on the head by the explosion, so had buried the other two in the skip. Two further similar cartridges were later found in an open hedge about 70 yards down a lane which the Crown said that the appellant would have been expected to use to get to his home from 15 Cypress Gardens. The Crown suggested that this explained why he had lied about his route home.
The summing up on identification
18.
We set out in full at this point the portion of the summing up most relevant to the issues relating to Steven Wemyss’s recognition evidence:
“There are in this case two categories of identification. The first is visual identification and the second is identification by voice. Both identifications were made by Steven Wemyss, the surviving victim of the attack, and both implicated the Defendant Mr. Davies as the attacker in the scream mask. ”
I must warn you of the special need for caution before convicting a defendant in reliance on identification evidence. That is because it is possible for an honest witness to make a mistaken identification. It is known that some people have been wrongly convicted in the past as a result of such mistakes. A witness can seem convincing yet still be mistaken. You must look therefore at each form of identification by Steven Wemyss with great care.
Let us consider visual identification first. Generally in case where a witness says he recognises the Defendant as responsible for a crime, a Jury is as a rule warned about a number of matters. How well did the witness know the person? How long did he have him under observation? At what distance? In what light? Did anything interfere with his view? Has the witness been inconsistent in his description or the course of identification of the person concerned? All those questions are relevant to the visual identification by Steven Wemyss.
But in this case I think it right to direct you to go even further than that along the line of caution. When Steven Wemyss saw the man in the Scream mask, the mask hid from his view essentially everything but the eyes of the attacker. Steven Wemyss says he was able to see the skin colour, but otherwise it was only the eyes. His view even of the eyes would be at least in part obscured by mesh if the mask was identical to the one we have, the one owned by the Wemyss family, not of course the actual mask of the attacker.
Under all those circumstances I direct you that the visual identification on its own is very limited, and that in itself it cannot possibly be relied on to prove the identity of the attacker as Mr Davies. At its best, the only feature seen by Steven Wemyss were the eyes and the skin round them.
I remind you of the specific weaknesses or possible weaknesses associated even with that limited form of identification. The amount that Steven Wemyss had had to drink, equivalent to two-and-a-half times the driving limit, although of course in Stephen Wemyss’ favour it is not suggested that he was a driver or ever had been. The fact that Steven Wemyss was in a stressful and frightening situation, facing a gun. The fact that the lighting conditions, although the lights were on were not ideal, there being only, I think, one bulb in the fitment or fitments in question. The fact that Majit Wemyss, about whose evidence I will remind you later, the brother of Steven, was also face to face with the attacker and got no view at all, and also the brevity of the time available for identification. Now those are all specific weaknesses or possible weakness.
Let us suppose that you come to the conclusion that there is other evidence apart from this which does prove Mr Davies’ participation in the attack, either from the circumstantial evidence or the voice identification or both. What then?
Well, it is open to you, if you find that there is some value in the very limited visual identification to use it as some sort support for the rest of the evidence. You should not give the visual identification any more significance than that. Indeed, if you have any real doubt about its quality, even to the limited extent that I have mentioned, you should simply put the evidence aside and ignore it when you make up your mind about the case against and for Mr Davies.
I move from that now to the identification by voice. In relation to that you have been rightly told that juries should be even more cautious about voice identifications than about visual identifications, and I direct that you should exercise great caution about voice identification. You are of course entitled to bear in mind that Steven Wemyss was, assuming that you accept this to be the case, familiar with Mr. Davies’ voice.
You are also entitled to take into account that under the supervision of Inspector White fifteen voices out of forty-four were selected from recordings, and of those Steven Wemyss was asked if he could pick one out of ten as being the voice of Mr. Davies. He successfully picked number three.
Equally, however, you should bear the following matters in mind. The question that Steven Wemyss was asked was not whether he could pick out the voice of his attacker on the night but whether he could pick out Andrew Davies’ voice. That distinction may, on the face of it, be a subtle one because Mr Wemyss has also said that the attacker’s voice was that of Andrew Davies. But you should bear that distinction in mind, and particularly bear the distinction in mind because the only words that the attacker said, on the evidence that you have heard were “Where’s Chrissie?”
The passage which Mr Wemyss listened to on CD included those two words but was very much longer, and it was read over to him twice and he had the leisure to consider it in those controlled circumstance. There were, I think, over eighty words read over.
Bear in mind also the difficult and no doubt terrifying circumstances in which the voice of the attacker was heard by Steven Wemyss. Approach the matter with great caution and have regard to the risk of error. If you are unsure of the value of the evidence you should attach no weight to it.
On the other hand if you think that the evidence is of value, then you are entitled to ask yourselves whether there is support for it in all the other evidence. That other evidence consists of the circumstantial evidence to which I have already referred.
There is also the matter of the lies and alleged lies told by the Defendant, depending upon the significance which you attach to them. It is for you to decide what, if any, support this other evidence gives to the identification in the case of Mr Davies.”
The submissions
19.
In support of the single ground on which the appellant was granted leave to appeal by the Full Court presided over by Thomas LJ, Miss Baird submitted that trial counsel acted “inexplicably and contrary to all promptings of reason and good sense” (cf
Clinton
97 CAR 320) in failing to object to the admissibility of Steven Wemyss’s evidence regarding his suggested visual and voice recognition of the applicant. Counsel should, Miss Baird submitted, have objected to this evidence (i) as so poor as to be worthless, (ii) as more prejudicial than probative and/or (iii) pursuant to
s. 78
of the
Police and Criminal Evidence Act 1984
. In support of this, she prays in aid junior trial counsel’s original perfected grounds of appeal dated 26
th
September 2001 and paragraph 37 of his supporting advice. The first ground was that the trial judge “failed adequately or at all to direct the jury that the visual identification and voice identification were so unreliable so [sic] as to be worthless in terms of their evidential value”. The latter contained a statement, perhaps more submission than opinion, that
“A close analysis of the evidence of identification in Counsel’s respectful submission led one to the conclusion that it was absolutely and utterly worthless and the jury should have been so directed. This was a course which the Learned Trial Judge chose not to take”.
20.
Miss Baird puts a like submission at the forefront of this appeal. She describes the visual and voice identification of the appellant as similar to fleeting glimpse identifications, in the case of the former, she submits, of the worst kind and in the case of the latter of a kind about the dangers of which there has been expert warning (cf e.g.
Roberts
[2000] Crim.L.R. 183;
Familiar? Voice Identification Evidence
, David C. Ormerod 2001 Crim. L.R. 595; and
Sounding Out Voice Identification
, David C. Ormerod 2002 Crim. L.R. 771). She submits that it would have been incumbent on the judge to exclude the identification evidence entirely, if he had been asked, under the principles stated in
Turnbull
[1977] QB 224
; (1976) 63 CAR 132. She reinforces this contention by various criticisms directed at the police investigation and procedures. No “first description” of the eyes or voice was recorded in any statement. With regard to the voice identification procedure, she did not assert any contravention of Code D made under
the 1984 Act
, accepting that it permitted a voice parade where appropriate and not suggesting any contravention of paragraph D:17 (now D:18). But she did submit that best practice had not been followed, in that Inspector White who compiled the tape of ten voices could claim no particular formal qualifications, e.g. in phonetics. Miss Baird relied upon a report commissioned by the CPS for the purposes of this appeal from Professor Ray Bull, who refers to certain guidelines established by Detective Sergeant McFarlane of the Metropolitan Police subsequent to the events relevant to this case. These guidelines point out that there should be appropriate similarity among all voices selected to be present in the voice parade and that the judgment about appropriate similarity among the possible voices should be undertaken by an “expert witness”. Professor Bell went on say that “a very important question arises as to the ability of Inspector White to select appropriate voices”, and to point out that the appellant’s solicitors had commented at the time that “the voices are unsuitable because they are not of a sufficient standard to ensure fairness”, to which the inspector had replied “I consider the tape to be a fair test for the witnesses and do not intend to obtain further voices”. Miss Baird also points out that a voice identification procedure based on 86 words repeated twice is a different exercise to one based on two words spoken only once in the heat of an armed incursion into a private house.
21.
Miss Baird submits that the judge should have been asked to exclude and would, if he had been asked, have been likely to exclude all Steven Wemyss’s identification evidence before it was called. On 18
th
June 2004 her solicitors wrote to senior trial counsel saying that the appellant had indicated that, during the trial, the admission of the visual and voice identifications had been discussed at length, that they understood that no objection was taken to their admission on the ground that it was of such poor quality that it would damage the prosecution case and that they believed that the appellant had signed an endorsement agreeing to this course, of which they sought a copy. No such endorsement, and no other contemporary documentation (such as conference notes), have in the event been put before us in relation to the suggestion in this letter. The matter came before the Full Court on 28
th
June 2004, when criticism was expressly directed by Miss Baird to the way in which the trial was conducted. The Full Court presided over by Thomas LJ directed that the Court of Appeal Office should write to trial counsel asking them to deal with the question: “Why was an objection not made to the introduction of the visual and voice identification evidence?” There was a waiver of privilege by the appellant on 29
th
June 2004, the only practical result of which appears to have been a response on 6
th
July 2004 by leading trial counsel to the court’s question as follows:
“(a)
Visual Identification
In his statement dated 17
th
March 2000 Steven Wemyss described one of the assailants at page 13 (p 236 of prosecution statements) as follows:
“I could see the person’s eyes through the mask’s eye holes, the eye holes do have a thin dark mesh on but I could see the eyes clearly and I could see that the skin surrounding the eyes was black. I recognised those eyes straight away and I knew it was Davies”. He said he had known the Defendant for about 10-11 years (p 226). The scream mask worn by the assailant was not recovered or precisely identified but there were several different ones on the market at the material time. In particular the precise nature of the eyeholes and the density of the mesh (if any) varied. In these circumstances we took the view that to object to the evidence on the grounds that there had been no identification parade, if Code D 2.3 applied, would be met by the argument that it would not have been practicable fairly hold an identification parade. Furthermore if the learned judge rules that an identification parade, which featured only the eyes, should and could take place this may have resulted in the Defendant being correctly recognised by his eyes. In any event the issue was one of recognition rather than identification and hence the credibility of the witness.
This matter was fully discussed with the defendant and he agreed that no objection should be made to the evidence of visual identification being lead.
(b)
Voice Identification
Two witnesses in their statements purported to recognise the scream masked assailants voice as being that of the Defendant, namely Steven Wemyss (p 236) and Samantha Robinson (p 266). Steven Wemyss correctly identified the Defendant’s voice when the passage including “where’s Chrissie” was put to him. However Samantha Robinson not only failed to recognise the Defendant voice when she was put to the test but picked out the voice of a person other than the Defendant. (p 481). Thus we found ourselves on the horns of a dilemma. It was not going to be possible to object to the voice identification “test” in the case of Steven Weymss but seek to rely on it in the case of Samantha Robinson. Since the test was clearly flawed because the passage gave the witnesses much more chance to recognise the Defendant’s voice than the few words said at the time of the attack it was decided not to object to the “tests” being introduced in evidence. In the event Samantha Robinson who gave evidence after Steven Weymss did not purport to identify the assailants voice.
The situation was explained to the Defendant more than once and he agreed that no objection should be taken.”
22.
Leading trial counsel in this note has no doubt given the court the benefit of his best recollection and reconstruction of the discussions and thought processes at the time of a trial three years previously. But we have substantial reservations about an approach which asks us to treat very experienced leading trial counsel as having acted inexplicably and contrary to all promptings of reason and good sense, without producing any of the contemporary notes or documentation, which one would expect to exist in the appellant’s trial solicitors’ files, to enable a full appreciation of the evidently lengthy discussions and complex considerations taken into account at the time. That is an aspect which we consider would merit attention in any future appeal in which such criticism of counsel is made. But, for the purposes of the present appeal, we put it aside, and proceed on the basis that Miss Baird invited, namely that the full position is as set out in trial counsel’s response note.
23.
Trial counsel’s response focuses on possible grounds upon which it might have been suggested that the evidence should be excluded under the
Police and Criminal Evidence Act 1984
of for breach of the Codes made under it. Miss Baird submits that it overlooks and that trial counsel must have overlooked the possibility of excluding the evidence on the grounds of its inherent worthlessness or weakness. She also submits that the apprehension that the trial judge might have ordered an identification parade with masks was without foundation at the date of trial and based on a fallacy, namely that the issue regarding Steven Wemyss’s claim to identify the appellant was one of credibility, rather than reliability. With regard to the latter point, we say at once that, although the appellant’s case at trial had to be presented delicately to avoid an outright challenge to the truthfulness of prosecution witnesses, there seems little doubt that it did in reality involve a challenge to credibility, in the sense of truthfulness, at a number of points. Still more to the point, we think it reasonably clear that, however inimical to strict usage, trial counsel’s phrase “and hence the credibility of the witness” was intended to embrace both reliability and truthfulness. The word “hence” relates back to recognition, and no-one could sensibly suggest, nor was the appellant suggesting, that Steven Wemyss’s claimed “recognition” of him was necessarily dishonest, as opposed to mistaken.
24.
Against the event that we might conclude that trial counsel acted reasonably or that the court would anyway have admitted the evidence or that, if the evidence was worthless, the remedy was for the judge to direct the jury to disregard it, Miss Baird asked us to reconsider the previous Full Court’s refusal of leave for a ground taking issue with the judge’s treatment of the evidence. She put this complaint primarily as a complaint about the summing up, although at points in the argument she also submitted that the judge could and should have withdrawn the case from the jury at the conclusion of the prosecution evidence. As we have said, in the light of the Crown’s attitude and without going further into the strict position, we shall deal with these submissions as a matter of substance, as if leave had been given for them by the previous Full Court. At the heart of the complaint in each case is the proposition that the judge should have viewed the visual and voice identification of the appellant by Steven Wemyss as effectively worthless, and that either the whole case or at least (by an appropriate direction) that particular evidence should have been withdrawn from the jury. Miss Baird submits that the crucial nature of the identification evidence is self-evident. She seeks to reinforce this by submitting that the other circumstantial evidence was no more relevant to the case against this appellant than that against Powell, whom the jury acquitted. Therefore, she suggests, it must have been the identification evidence that led to the appellant’s conviction.
Analysis
25.
With regard to Miss Baird’s criticism of counsel, it is important to consider the position and the judge’s likely attitude at the time when she suggests that counsel should have objected to the admission of the evidence. On her primary case, this was before the evidence was ever called. At that stage, counsel and the judge would have had no more than the statements, and it was known that the model of Scream mask which the first intruder had used could not be identified. Leading trial counsel’s note dated 6
th
July 2004 sets out the contents of the part of Steven Wemyss's statement relating to visual identfication (though not the part relating to voice identification, which we have not been shown on this appeal). It does not appear that any other witness to the incident claimed in a statement to recognise the appellant by his eyes. But Samantha Robinson did claim in her statement to recognise him by his voice, when the words “Where’s Chrissie?” were said, even though she failed to recognise him at the later “parade” of voices on tape. In the event, she also failed to come up to her statement in her evidence (see paragraph 5 above).
26.
We do not see any basis on which the judge could realistically have been invited to exclude the proposed oral evidence of Steven Wemyss or indeed Samantha Robinson, before it was ever given. This was a case of purported recognition of familiar eyes and a familiar voice during an incident, not a case of purported identification at a parade following a brief glance at an unknown stranger during an incident. The nature and course of the incident, the words said, how they were said, and the witnesses’ ability to see, appreciate and remember accurately what was going on were all matters which required investigation in the witness box, as would have been the precise nature of the Scream mask, although in the event no-one could assist on this. Further, it was a case where the Crown proposed to rely on a wealth of background evidence, which was capable of reflecting upon and supporting the correctness of the limited visual and voice recognition evidence that Steven Wemyss could give.
27.
The procedure to adopt in situations such as the present was considered in
Flemming
(1986) 86 CAR 33, where this court held that it was quite unnecessary for a trial judge faced with issues about the quality or probative value of identification evidence to hold a trial-within-a-trial. The normal procedure was that laid down in
Turnbull
, where the court
“made it abundantly clear that, where evidence of identification is such that it would be unsafe for a jury to rely on it, the judge should intervene”.
After citing a passage from
Turnbull
(to which we shall come) regarding the basis and nature of the court’s intervention, the court in
Flemming
continued:
“In the normal way the trial judge will make his assessment whether he needs to take the action referred to by the Lord Chief Justice either at the end of the case for the prosecution or after all the evidence in the case has been called. There may be exceptional cases where the position is so clear on the depositions that he can give a ruling at an earlier stage”.
28.
The appellant’s case on this appeal would have therefore to be that the present was one of those “exceptional cases” where the position was so clear that the judge should have been asked to give a ruling before any of the evidence was either heard or tested. We cannot, however, see any basis on which a judge would have been entitled to treat this as an exceptional case within this class. Miss Baird’s submissions included two propositions: first, that Steven Wemyss’s proposed recognition evidence could and should have been assessed as worthless at the outset of the case, before it was ever given; and, second, that this assessment could and should have been done in isolation from any other evidence that the Crown proposed to call. We do not accept either proposition. As to the first, we repeat that we have not even seen the statements, apart from the brief extract in leading trial counsel’s note which does not support the first proposition.
29.
As to the second, we accept that voice identification (or here, more precisely, recognition) evidence needs to be approached with even greater care than visual identification or recognition evidence. But the general principles governing identification stated in
Turnbull
apply to both: cf e.g.
Hersey
[1997] EWCA Crim 3106
(1
st
December 1997) (1998) Crim. L.R. 281.
It is therefore necessary to look carefully at what
Turnbull
actually decided about the correct approach. We set out some relevant passages
in extenso
:
“In our judgment the danger of miscarriages of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment.
First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.
Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger.
….
When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal
unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification: for example, X sees the accused snatch a woman's handbag; he gets only a fleeting glance of the thief's face as he runs off but he does see him entering a nearby house. Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there was evidence that the house into which the accused was alleged by X to have run was his father's. Another example of supporting evidence not amounting to corroboration in a technical sense is to be found in Reg. v. Long
(1973) 57 Cr.App.R. 871
. The accused, who was charged with robbery, had been identified by three witnesses in different places on different occasions but each had only a momentary opportunity for observation. Immediately after the robbery the accused had left his home and could not be found by the police. When later he was seen by them he claimed to know who had done the robbery and offered to help to find the robbers. At his trial he put forward an alibi which the jury rejected. It was an odd coincidence that the witnesses should have identified a man who had behaved in this way. In our judgment odd coincidences can, if unexplained, be supporting evidence. (emphasis added by italics)
The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification.
If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so. ….”
30.
Miss Baird submitted at a number of points that, once it is concluded that identification evidence is so weak (e.g. because based on a fleeting glance) that it could not by itself found a proper case to go to the jury, a judge must exclude it, whatever other evidence the Crown might be able to adduce. That is emphatically not the effect of
Turnbull
: see the passages italicised above. On the contrary, even where identification evidence is so poor that, if there were nothing more, the case would have to be withdrawn from the jury, there may be other evidence supporting the identification evidence, so that the Crown is able overall to present a case which is proper for the jury’s consideration. Mr Robson is also able to point in this connection, as a yet more extreme case, to this court’s decision in
George
[2003] Crim.L.R. 282, where it was held that even a series of partial identifications which by themselves could not found a proper case may as pieces in a jigsaw have the cumulative effect of constituting such a case.
31.
For reasons which will appear when we considering the judge’s summing up, it is clear that, whatever value might or might not be put on Steven Wemyss’s visual or voice proposed recognition evidence in isolation, there was a wealth of other circumstantial evidence capable when taken in conjunction with it of supporting the Crown case. There can have been no prospect of the judge treating this as an exceptional case where he could or should intervene in advance on the ground of weakness in Steven Wemyss’s proposed recognition evidence to prevent it even being put before the jury. Nor, so far as it depends on the suggested weakness of such evidence, can anything be added on this point by Miss Baird’s submission that the evidence should have been withdrawn from the jury as more prejudicial than probative. It does not therefore surprise us, in the light of
Flemming
and Turnbull and in view of the way in which the Full Court’s question was framed, that leading trial counsel’s response of 6
th
July 2004 focuses on grounds of objection which might have arisen from procedural unfairness in relation to the voice identification “parade” and the lack of any parade in relation to the purported visual identification.
32.
Miss Baird also relies on procedural unfairness, in support of her contention that an application could and should have been made to exclude the recognition evidence either as more prejudicial than probative or under
s.78
. She points to a lack of any “first description” by Steven Wemyss of the eyes or voice. She points in relation to the voice identification “parade” to Professor Bell’s questions regarding Inspector White’s ability to select and success in selecting similar voices to the appellant’s and to the fact that the “parade” as set up was a test of recognition of a known voice and was based on a much longer passage than the two words actually heard during the incursion. As to the lack of a “first description”, the brief passage from Steven Wemyss’s statement, which is all that we have seen extracted in the note of 6
th
July 2004, makes no attempt to describe the eyes, and does not cover the voice identification at all. We will however assume that Steven Wemyss did nothing further in either case than claim immediate recognition in general terms. It does not follow that he could not, if asked, have given a further description, e.g. of the colour of eyes. Since he had known the appellant for some ten or twelve years, he might well have been able to do this convincingly on the basis that he had known their colour for a long time. Alternatively, he might have said that his claimed recognition derived from shape rather than, or as well as, colour. Ideally, we think that the police should have gone into these matters when taking Steven Wemyss’s statement. But, assuming that they did not with either Steven Wemyss or Samantha Robinson (who in her statement was also claiming to have recognised the appellant’s voice), we think it improbable in the extreme that the judge would have regarded their failure to do so as a ground for treating this as an exceptional case where the evidence should be ruled out before it was even given and before its weight and basis was investigated. It was open to trial counsel to investigate with the witnesses the matters which we have mentioned, if of course they thought it tactically wise to do so. We cannot view trial counsel as having acted inexplicably or as contrary to the promptings of reason and good sense, in failing to raise them with the judge in an attempt, which would in our view clearly have failed, to exclude the evidence before it was even called.
33.
The lack of a visual identification parade and the procedure adopted in relation to the voice identification “parade” were clearly given close consideration by counsel with the appellant at trial. The lack of a visual identification parade is explained by the considerations mentioned in trial counsel’s note. The criticisms of the voice identification have some force. Steven Wemyss and Samantha Robinson were asked to identify the voice of the appellant, with whom and with whose voice they were to different extents familiar; and they were to do so on the basis of a long passage, not two words. He succeeded. She failed. The relevant question would have been whether they could recognise a voice on the recording which was the voice of the first gunman. However, since they had already identified the first gunman’s voice as the appellant’s with which they were or claimed to be familiar, it must have been almost inevitable that they would listen for the appellant’s familiar voice. A more relevant test might also have been whether they could recognise the appellants’ voice from a recording confined to the words “Where’s Chrissie?”, whereas the actual recording contained far more words. We recognise that a somewhat similar point might be made in relation to visual identification parades generally. Although such parades seek to present a selection of similar looking individuals, they do not, and cannot, do so under the same circumstances (fleeting or otherwise) as any original sighting. A witness asked to attend such a parade may well have a substantially longer and more detailed look under very different lighting and other conditions than during any original sighting. However, it would have been feasible to limit the length of the recording used on the parade, although we note that no objection was made by the appellant’s solicitors contemporaneously to the length of the passages in the recording.
34.
An objection to the admission of evidence of the voice recognition and/or of the “parade” might have been made along the lines canvassed in the previous paragraph. Counsel might also have questioned Inspector White’s ability to make a neutral selection of similar voices. But we see no basis for concluding that any such objections would have succeeded. The voice identification “parade” procedure which was followed corresponded generally with that adopted and approved in
Hersey
, above. In that case, there had been considerable conversation over about 15 minutes between robbers, one of whom one of the witnesses claimed to recognise by his voice. A recording of twelve voices (including that of the defendant during a prior interview on an unrelated matter) was made by a police officer and used on a “parade”. The witness who claimed to recognise the voice picked out the defendant. The other witnesses did not. The defence criticised the procedure as a test of no more than the witness’s ability to recognise a known voice and the recording on the ground that the voices used were all of significantly higher pitch and that only the defendant spoke the relevant passage in a way which made sense. The defence suggested that the purported recognition should have been allowed to stand on its own, and that it could not fairly be tested or strengthened by a later voice identification parade. The judge heard evidence (including expert evidence) on a voir dire and refused to exclude evidence of the “parade” identification under
s. 78
. He also refused to allow the defence to call an expert to give evidence before the jury in support the criticism of the recording. The court of appeal considered that the danger of the jury placing undue weight on a parade identification involving or resulting from no more than the witness’s previous acquaintance with the defendant would be obvious to the jury and could be dealt with by defence counsel in his speech and by the judge in summing up. The court also upheld the judge’s decision to refuse to allow the proposed expert evidence, saying that the matters put forward were all within the experience of the jury. Finally, the court endorsed the general application of the principles in
Turnbull
to voice identification evidence.
35.
In the light of
Hersey
, it is not difficult to understand why no objection was made in the present case to the admission of the proposed evidence regarding voice recognition, and why the points that could be made on it, and on its inability to add anything to the original purported recognition, were treated as points to be made after all the evidence had been heard. They involved criticisms about which the judge could and would also have to direct the jury in summing up (as he did). It is true that the witnesses in
Hersey
had during the robbery heard very considerably more conversation than the two words heard during the invasion of 15 Cypress Gardens, and that the witnesses in the present case were explicitly asked whether they recognised the appellant (rather than the first gunman) on the recording. But both these points simply added to the points that could be (and were) made by counsel and by the judge regarding the relative insignificance of the evidence about the “parade”. Indeed, as trial counsel have pointed out, such evidence was not merely flawed in that it asked the witnesses to identify the voice of someone they claimed to know, it also tended to undermine the Crown’s case by demonstrating that one of the two witnesses who might have been expected to know the appellant’s voice could not even recognise it by reference to a far longer passage of words than those spoken during the incursion. Once the evidence about the voice identification “parade” was heard, therefore, we see no possibility that it proved critical in the jury’s deliberations. As to the criticism of the preparation of the recording, even assuming that it would have been best practice in 2000 to involve an expert in phonetics to make the relevant selection (which we do not think is shown), it is not shown that Inspector White’s selection was actually of dissimilar voices or unfair. The recording still, we understand, exists, and yet even now no submission to that effect is made based on any actual analysis, expert or other, of it. In reality, we note that the appellant’s solicitors’ objection appears to have been to the standard, rather than dissimilarity, of the voice recordings. Still more relevant, as in
Hersey
so here also any such criticisms of the recording and “parade” could be deployed once evidence of this “parade” was admitted. For all these reasons, we are unable to conclude that trial counsel acted inexplicably or beyond the promptings of reason and good sense in the course discussed at length with the appellant and decided upon at trial.
Analysis regarding the criticisms of summing up
36.
We turn to the proposed criticisms of the summing up. In the relevant passages, which we have set out above, the judge directed the jury that the visual identification “in itself cannot possibly be relied on to prove the identity of the attacker as Mr Davies”. But he went on to invite them to consider whether there was “other evidence apart from this which does prove Mr Davies’s participation in the attack, either from the circumstantial or the voice identification or both”, and to say that it was then open to them to find “some limited value in the very limited visual identification evidence to use it as some sort [of] support for the rest of the evidence”. In dealing with the voice identification, the judge directed the jury to be even more cautious, and drew attention to the criticisms available in respect of the “parade”. But he left it to the jury to consider whether the voice identification had any value, and, if they did, to ask whether there was any support for it in all the other, circumstantial evidence. Miss Baird does not criticise the latter direction relating to voice identification, but she submits that the judge put the direction regarding visual identification the wrong way around in suggesting that other (circumstantial or voice identification) evidence might support it. This is not in our view a valid criticism. The judge was telling the jury correctly that the visual identification alone could not assist, but that they might consider that it could have weight in conjunction with other evidence. That is correct. His predicate was that they considered that there was “other evidence apart from this which does prove Mr Davies’s participation in the attack”. He was telling the jury first to consider that, and then to consider whether to deploy the visual identification in further aid. Whether at this point one describes the circumstantial evidence as supporting the visual identification, or vice versa, seems immaterial. In substance, the jury was being asked, correctly, to look at the overall picture, at the combination of all the evidence, to see whether or not it made them sure. In our view the judge’s careful directions, discussed no doubt with trial counsel in advance, were both correct in law and entirely appropriate in the circumstances of this case. They also support our view that there would have been no real prospect of a successful application at any earlier stage in the trial to exclude any part of the recognition evidence.
37.
We also heard submissions about the value of the circumstantial evidence apart from Steven Wemyss’s recognition evidence. A submission of no case to answer was made on behalf of Powell at the end of the Crown’s evidence, and was rejected. Even without Steven Wemyss’s visual and voice recognition of the appellant, we think it unlikely that a similar submission on behalf of either this appellant or Powell could have succeeded. But the more important consideration is that the judge was unquestionably right to consider that there was relevant circumstantial evidence capable of supporting Steven Wemyss’s recognitions. In our view the circumstantial evidence against this appellant can rightly be described as substantial, quite apart from such recognition evidence. Miss Baird accepts that it shows that he had an animus against both Christopher Wemyss and Andrew Lansdown. On the day of the shootings, in particular, there was evidence that the appellant was looking for Christopher Wemyss; that he had visited 15 Cypress Gardens at 8.00 p.m. only two hours before the shootings, asking the same question as the first gunman ("Where's Chrissie?"); that on that visit he had been told that Christopher Wemyss would be there at 10.00 p.m.; that he had quarrelled angrily with Christopher Wemyss’s girlfriend Leila Bailey, and with Andrew Lansdown from whom he parted on the basis that the matter was not finished; and that between 8.00 p.m. and 10.00 p.m. he had been in a house where news had been received that his aunt in Byker feared an attack by Christopher Wemyss on her house, and that within minutes he had left the house in a taxi originally booked to go to Byker via Forest Hill, but that he stopped at Forest Hall. One adds to that the change of clothing in Forest Hall, the lies told about his visit to 15 Cypress Gardens at 8.00 p.m., and about his route home, the implausibility of his explanations for them, and the implausibility of his and his girlfriend’s timing of his arrival home and of his explanations for the telephone calls made from 10.00 onwards. In our view this was a considerable circumstantial case against this appellant, even apart from Steven Wemyss’s recognition evidence, and one which was certainly capable of supporting that evidence. We do not accept that Powell’s acquittal shows the contrary, or that it means that Steven Wemyss’s recognition evidence must have been critical in relation to this appellant. There was certainly material from which a jury might have concluded that Powell was in effect this appellant’s assistant in any trouble. But it is equally clear that the evidence implicated Powell less directly and to a much lesser extent than the appellant. Powell was not shown to have the same animus against either Christopher Wemyss or Andrew Lansdown. Powell’s case was that the appellant used to approach him for a lift and for a drink, and was not always welcome, and there was some objective evidence to support this. Powell was above all not present at the 8.00 p.m. visit to 15 Cypress Gardens. The Crown failed to make the jury sure in the case of Powell. It succeeded in the case of this appellant. There is no inconsistency, and this appeal gains no assistance from Powell’s acquittal in relation to the issues before us on this appeal.
Conclusion
38.
Standing back from the submissions, and looking at the position overall, we find ourselves in no doubt about the fairness of the trial process or the safety of this appellant’s conviction. We also consider that the appellant was convicted on evidence which, viewed overall as it must be, pointed strongly towards his guilt.
39.
It follows that we consider that this appeal must be dismissed on the one point on which the Full Court gave leave to appeal. On the other aspects, particularly relating to the summing up, which Miss Baird has raised before us, and which we have considered as if leave had been given, we consider that there is also no valid ground of complaint in this court, and we shall accordingly simply dismiss the application for leave to raise them.