Neutral Citation Number:
[2012] EWCA Crim 1605
Case No: 201103920 B2, 201105580 B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 27 June 2012
B e f o r e
:
LORD JUSTICE PITCHFORD
MR JUSTICE LLOYD JONES
RECORDER OF BIRMINGHAM - HIS HONOUR JUDGE DAVIS QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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R E G I N A
v
ALWAYNE TONZARAH NATHANIEL BARNES
DALE BURTON
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Computer Aided Transcript of the Stenograph Notes of
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Mr G Branston
appeared on behalf of the
Appellant, Barnes
Mr J Beck
appeared on behalf of the
Applicant, Burton
Mr R Thatcher
appeared on behalf of the
Crown
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J U D G M E N T
1.
LORD JUSTICE PITCHFORD: On 16 November 2010, the appellants appeared before HHJ Stokes QC, the Recorder of Nottingham, facing separate indictments alleging the supply of Class A drugs, cocaine and heroin. Barnes pleaded guilty to 18 counts, Burton pleaded guilty to 10 counts.
2.
Between 31 May and 8 June 2011, both men were tried upon an indictment alleging that they conspired to commit the offence of robbery, and that they possessed a firearm while committing a Schedule 1 offence, contrary to section 17(2) of the Firearms Act 1968. The judge directed the jury at the close of the prosecution case to find Burton not guilty of count 2.
3.
On 8 June 2011, after a very short retirement, Barnes was convicted upon both counts and Burton was convicted upon count 1. Two days later the Recorder sentenced Barnes to a total of 17 years' imprisonment, comprising ten years for the count 1 conspiracy, two years consecutive for count 2, possession of a firearm, and five years for the drugs offences concurrent with each other, but consecutive to the other sentences. Burton was sentenced to 11 years imprisonment, seven years in respect of count 1 and four years for each of the drugs offences concurrent with each other, but consecutive to the sentence imposed upon the trial indictment.
4.
The Recorder ordered that in Barnes' case 286 days should count for the purposes of section 240 of the Criminal Justice Act 2003, and in Burton's case, that 423 days should count for the same purpose.
5.
Barnes now appeals against conviction with the leave of the Single Judge upon one ground, namely that the judge wrongly admitted "reverse projection" evidence given by Mr Nicholas Coxon. Mr Branston seeks also to renew his second ground, namely that Burton's submission of no case to answer at the close of the prosecution case should have succeeded. If it had, that made the case against Barnes weaker. Accordingly he submits the verdicts of the jury were unsafe.
6.
Mr Barnes himself has submitted a document in which he raises two further grounds of appeal: first, that the prosecution abused the process of the court and second, that there were failures in disclosure which rendered the verdicts in his case unsafe.
7.
On behalf of Burton Mr Beck seeks to renew an application for leave to appeal against conviction on the ground that his submission of no case should have succeeded. Burton also seeks to renew his application for leave to appeal against his sentence.
8.
It is necessary to summarise the circumstantial case which emerged at trial. On 28 July 2009, CCTV at Porchester Road Post Office, Thornley Wood in Nottingham, captured Barnes and Burton entering the premises at about lunchtime. They appeared to be looking not only around the shop, but also at a card display, and they left after about nine minutes having made a purchase. The prosecution case was that they were carrying out reconnaissance in preparation for the events of the following day. It was, in particular, Mr Burton's case that he was buying a card for a close relative, whose birthday was the following week.
9.
At 12.25 the following day, Wednesday, 29 July, two men entered the post office wearing hooded tops and black bandanas covering their faces. The preponderance of the evidence was that one was about 5'7" tall and the other was about 6'. One of the men appeared to be holding a knife and the other a shotgun. The man with the shotgun went to the post office counter. The man with the knife stayed at the door. The gunman shouted "get down" and tried to smash the glass security partition by striking it several times with the barrel of the gun.
10.
Two shop assistants were retreating to the rear of the shop when they heard the shotgun being discharged at the glass partition. As a consequence, shards of glass were projected towards the shop assistants, both of whom were struck. Thankfully neither of them suffered any serious injury.
11.
Outside the shop a witness, Robert Leyton, was sitting in his parked Jeep Grand Cherokee. He saw a second Jeep Grand Cherokee, which he described as mid-grey in colour, with blacked out number plates pull up outside the post office. Two men got out of the vehicle, he thought from the rear, and went into the post office. One of them was holding a shotgun. Mr Leyton thought that there was a third man who remained in the driver's seat of the vehicle, but other witnesses disagreed. The two men returned and got back into the Jeep. The first call to the emergency services was made at 12.33pm. The Jeep turned left and was driven south along Porchester Road.
12.
Just before 12.46 a road traffic accident took place on Porchester Road to the north of the post office, in other words, in the direction opposite from the route taken by the getaway vehicle, but several minutes after the attempted robbery had taken place. At 1.15pm, or thereabouts, both Barnes and Burton were interviewed at the scene of the road traffic accident as witnesses. Barnes was arrested on Saturday, 1 August 2009, three days after the attempted robbery. Found in the left pocket of his jacket was a set of Jeep car keys and an immobiliser. The vehicle in respect of which those keys were held was never recovered and, the prosecution contended, was subsequently destroyed.
13.
Barnes gave inconsistent accounts of his possession of those keys. He said on arrest that he had just found them. In interview he said a hire company was going to change his hire vehicle so he had had to empty the hired Vauxhall Astra and the keys were found in it. In evidence he claimed that he had found the black hooded top he was wearing when he was arrested in the hall at number 29 Elgar Gardens, where he said he had been earlier on the day of his arrest. The keys were in the pocket of the hooded top.
14.
This change of account at trial gathered significance upon consideration of the forensic science evidence, to which we shall come in a moment. Burton on arrest said he knew nothing about any robbery. In interview he could not recall where he had been on the Wednesday, but he did recall that he had seen two accidents in one week.
15.
On 18 August 2009, the police executed a search warrant at 29 Elgar Gardens, St Ann's, Nottingham. The occupier was Lynette Burton, the applicant Burton's cousin. Underneath a plank in the overgrown front garden the police found a black plastic bag and, inside, side by side shotgun barrels with a cartridge in one barrel. Gunshot discharge and shards of glass were found on the barrels. A forensic science laboratory recovered from the black hooded top, worn by Barnes at the time of his arrest, several glass fragments which were chemically and physically indistinguishable from glass retrieved from the damaged post office security scene, and from glass fragments recovered from the side-by-side barrels.
16.
The forensic scientist gave evidence, from examination of the crime scene photographs, that glass had been projected forward towards the fleeing shop assistants who were hit by fragments and also was reflected backwards in the direction of the gunman, who had discharged the weapon. A mobile phone seized from Barnes contained stored photographs of a Jeep Cherokee taken on 26 July 2009. The vehicle was registered as purple or mauve.
17.
The learned judge in directing the jury referred to his impression that the photographs looked to depict a vehicle with a greyish colour, but warned them to be wary of acting on impression from imperfect images. Mr Branston, on behalf of the appellant Barnes, expressed his firm view that those photographs showed a mauve coloured grand Cherokee.
18.
Also recovered from the phone were text messages sent to a person called Nash on 31 July 2009, two days after the offence. One directed Nash to 24 Elgar Gardens, the other corrected the address to 29 Elgar Gardens. From the mobile phone recovered from Burton the police extracted a text message sent by Burton reading "Just havin a play in my Jeep ...". On 12 April 2011, six weeks before the commencement of trial, the prosecution served a notice of additional evidence comprising the evidence of Nicholas Coxon. Mr Coxon is an experienced CCTV manager employed by Nottinghamshire Police. He thus had experience of interpreting CCTV images.
19.
The appellant, Barnes, had in his defence statement asserted that the owner of the hooded top in which the glass fragments had been found was a man called Robert Taylor. Taylor, he asserted, was the gunman. Taylor's height was known to be 6'. Mr Coxon was asked to consider whether the height of the gunman to be seen in the CCTV film of the crime could be ascertained. Mr Coxon gave evidence to the effect that the CCTV camera within the post office operated from a fixed position. It was possible to select people of a known height to act out the movements of the gunman to be seen in the crime recording. The same CCTV camera in the same fixed position could be used to record the actor's movements. By comparing the images thus produced with the crime scene recording, it would be possible to form a view as to the approximate height of the gunman. In fact, in order to carry out this exercise a gentlemen of a known height of 5'7" and a gentlemen of a known height of 6' were selected for the purpose.
20.
Mr Coxon was able to prepare a photographic overlay for each of the acted recordings, which could be, and was, superimposed upon the crime scene recording. By this means a direct comparison could be made between the actor known to be 5'7" tall and the gunman, and between the actor known to be 6' and the gunman, while each of them was in the same position in the post office as was the gunman. For some reason this technique was described by Mr Coxon as "reverse projection". But it seems to us that far from being new science, it employed photographic techniques well-known to criminal courts; for example, facial mapping is routinely demonstrated by preparing images, one of which can be overlaid on the other. The technique requires that the two images are properly aligned, comparable, clear and undistorted.
21.
Indeed, in his submissions, which challenge the admissibility of Mr Coxon's evidence, Mr Branston is careful not to submit that Mr Coxon was either adopting a strange and new science, or that he was not qualified to adopt and adapt the technique which he was using. Mr Branston sought to exclude the evidence and at first the Recorder had some sympathy for his objection. Nevertheless, having considered the matter overnight, and in particular having viewed the photographic work for himself, he concluded that it was professionally produced and was admissible for the limited purpose of providing an approximation of the gunman's height. It was for the jury to assess the weight of the evidence, having been directed as to the caution which they should adopt.
22.
Mr Branston renews his criticism of the admission of this evidence. At first he objected that Mr Coxon had not provided any details to the court, as required by the Criminal Procedure Rules, Rule 33, of any literature or other information on which the expert had relied in making his report, nor was there a statement of the witness's understanding of his duty to the court. We note that in his oral submissions to us Mr Branston did not renew this particular part of his objection.
23.
As we understand it, Mr Coxon was not relying upon any technical papers produced by others, he was applying known photographic techniques with which he was familiar. All that was required was the production of film, which could provide a fair and reasonably accurate comparison with the crime scene recording. It was this exercise to which his evidence was directed.
24.
The judge concluded, having heard Mr Coxon's evidence, that he was a palpably, fair and careful witness. It was one of the matters to which he pointed in the course of his summing-up in order to direct the jury that they should be careful about accepting and acting upon the evidence of a witness who was, so palpably, fair and careful when it was not possible to guarantee absolute accuracy.
25.
Because absolute replication of choreography was not possible, Mr Coxon accepted that there was a margin for error. The appearance of the images created by the actors may, for example, be affected by footwear and a particular stance adopted by the actor when in the same position within the post office as was the gunman. However, the absolute accuracy of the choreography was not required for the purpose of the height comparison. What was required was that the actor stood in the same spot, as had the gunman, to enable a proper comparison to be made. The ultimate question for the jury was simply whether or not the gunman appeared to be 6' tall, as had been asserted by Mr Barnes, or whether he may have been in the region of 5'7". Indeed, Mr Coxon accepted that there was a margin for error and said that the gunman could have been, in his view, any height between 5'5" and 5'8".
26.
Mr Branston suggests that the investigation lacked objectivity because it involved a witness and actors who were employed by the Police Service. It seems to us that the objectivity, or otherwise, of the exercise was laid bare for the jury to judge. Actors of 5'7" and 6' in height were selected not just because the appellant himself was 5'7", but because several of the eyewitnesses referred to two men in the shop, one of whom was about 5'7", although there were variations, and the other about 6'. The exercise in which the jury was engaged was a consideration whether the gunman was the taller or the shorter man.
27.
The exercise was criticised by Mr Branston because no one had revealed to Mr Coxon that the police had available a CCTV recording of the visit by the defendants to the post office the day before. That was no doubt an unfortunate omission, but in our view it did not vitiate the exercise being carried out by Mr Coxon. His purpose was limited to a demonstration of whether the gunman in the crime scene recording was the taller or the shorter man. If there was any reason to think that an analysis of the CCTV recording of 28 July, and a comparison of the image of the appellant in the reconnaissance recording with the image in the crime scene recording, raised the reasonable possibility that they were not the same person, then we would expect that an expert would have been instructed, on behalf of the appellant, in order to ascertain whether there was evidence which excluded him.
28.
It is accepted by Mr Branston that the effect of Mr Coxon's evidence was that it was highly improbable that the gunman was 6' tall and it was highly probable that the gunman was between 5'5" and 5'8" tall. He complains that the evidence of Mr Coxon could have been even more discerning had there been a range of actors whose height was between say 5'2" and 6', in respect of whom this exercise was performed. We agree that the exercise could have been more discriminating than it was, but we do not consider that this affected the admissibility of the evidence since it was admitted for a very limited purpose, which was explained by the Recorder to the jury in straightforward terms.
29.
In our view this evidence was admissible. There was no attempt either at trial, or in this appeal, to adduce the evidence of any consultant to cast doubt upon the accuracy of Mr Coxon's work. As we have said, the Recorder of Nottingham took infinite care in his directions to the jury to ensure that they were not beguiled by the evidence, and no criticism is made of those directions. We consider, having regard to our summary of the evidence adduced during the course of the prosecution case, that there was a sound circumstantial case for the appellant to answer and Mr Branston does not contend otherwise.
30.
Mr Barnes submits in person that the prosecution abused the process of the court by changing the nature of its case against him. Both suspects were charged with attempted robbery. On 15 December 2010, at a mention hearing, the prosecution maintained that Barnes was the gunman and Burton was the man next to the door with a knife in his hand. It was on that day confirmed that the prosecution intended to proceed with the count of attempted robbery. However, counsel instructed for the trial, Mr Thatcher, took the view that the case for asserting that Mr Burton was inside the post office was unsustainable. Mr Burton is a white man. The witnesses said that both robbers were black, or that one of them was of mixed race.
31.
On 4 March 2011, the trial judge permitted an amendment to substitute for the count of attempted robbery a new count of conspiracy to rob. This enabled the prosecution to assert that even if Mr Burton was not present at the robbery he could be found guilty of the offence of conspiracy to rob. In our judgment, the prosecution's change of stance comes nowhere near supporting an abuse of process argument in the case of Barnes, and we do not give leave in respect of that ground.
32.
Mr Barnes also submits that the police failed to make adequate investigations, which may have assisted the appellant in his defence, including cell-site information from the use of mobile phones, any CCTV footage of the route taken by the appellant to the location of the road traffic accident, and fingerprint examination of the plastic bag containing the shotgun barrels.
33.
These were all matters, in our view, for investigation at trial, and that investigation indeed took place. The judge gave to the jury a specific direction that if they considered there were gaps in the evidence they should bear that in mind when asking whether the prosecution had proved its case so that they were sure. We refuse leave on the second ground advanced by Mr Barnes in person.
34.
We turn to Mr Beck's submission, supported on behalf of Barnes by Mr Branston, that there was no case for the applicant Burton to answer. There was, we have concluded, a sound circumstantial case against Barnes. If the jury concluded that Barnes was the gunman, then that was a fact which they were entitled to consider as relevant to the circumstantial case against Burton. He was with Barnes in the post office on the day before the robbery. There was evidence that there was a third man in the Jeep. Burton was with Barnes within minutes of the robbery. He had, depending on the jury's view, access to a Jeep. The weapon was found in the front garden of his cousin's home, an address to which Barnes had directed Nash.
35.
It was not, in our view, necessary before the jury convicted Burton upon count 1, that they had to be sure of the role, if any, he played in the attempted robbery. He may have been a lookout, he may have been a driver, he may have been an organiser or planner. The jury was required to be sure that the applicant was one of the conspirators with the intention that the robbery should be carried out by one or more of the conspirators. This was the law which the judge carefully explained to the jury.
36.
In support of Barnes' case, Mr Branston relied upon an observation, made by the learned judge in the course of submissions, that it might well be that at the end of the day the jury would return a verdict of not guilty in the case of Mr Burton. Mr Branston sought to erect an argument that if that was the judge's view, then he should not have permitted the jury to consider the evidence against Burton at all.
37.
In our judgment that was a hopeless proposition. The duty of the judge was to require the jury to reach a conclusion whether they could be sure of the guilt of the accused, provided that the evidence was such at the close of the prosecution case that they could safely return such a verdict. In our view, despite the submissions both of Mr Beck and Mr Branston on this issue, there was indeed a case for Burton to answer.
38.
In Burton's case the judge took the unusual step, favourable to Burton, of cautioning the jury against drawing any inference against his interests from his decision not to give evidence in his own defence. Having regard to the judge's view as to the state of the evidence concerning
Mr Burton, that was undoubtedly the fair way in which to approach the issue of adverse inference arising from a decision not to give evidence.
39.
As we have observed, the jury returned with their verdicts 20 minutes after they were asked to retire. We have found no errors of law in the judge's approach to the evidence and we see no sound basis for doubting the safety of the verdicts. Mr Barnes appeal against conviction is dismissed. We grant leave to Mr Burton, but we dismiss his appeal against conviction also.
40.
As to sentence, Mr Beck argues that the judge could not properly conclude that Mr Burton knew that a firearm would be discharged in the post office. We agree with him, but the judge did not find that he did know a firearm would be discharged in the post office. He said that the conspirators must have known that a weapon would be used in the course of the robbery. That is, it seems to us, self-evident from the reconnaissance carried out by the appellants the day before the robbery.
41.
We have considered page 11 of the Sentencing Guidelines Council's guideline on robbery and in common with the Single Judge we conclude that seven years' imprisonment after a trial, for an attempted post office robbery with weapons, is not arguably excessive and the renewed application for leave to appeal against sentence in Mr Burton's case is refused.
42.
MR BRANSTON: May I make one minor correction? Your Lordship said Mr Johnson QC appeared at trial, in fact it was Mr Thatcher who appeared at trial.
43.
LORD JUSTICE PITCHFORD: When I was reading from my list I was looking at prosecution counsel from the first appeal. I do apologise, Mr Thatcher.
44.
MR THATCHER: I think the apology is better directed at my learned friend, Mr Johnson. It is no embarrassment for me to be confused with him at all.
45.
LORD JUSTICE PITCHFORD: That will be corrected in the transcript, if it is not already corrected by the shorthand writer.
46.
MR BECK: My Lords have given leave in relation to the renewed application on conviction. Would my Lords therefore grant a representation order?
47.
LORD JUSTICE PITCHFORD: Yes.
48.
MR BECK: I am grateful.