Dwaine Simeon George v The Queen
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 09 December 2014 |
| Neutral Citation | [2014] EWCA Crim 2507 |
| Docket Number | Case No: 201305873 B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 December 2014 |
[2014] EWCA Crim 2507
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Green
and
Mr Justice Goss
Case No: 201305873 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
The Hon Mr Justice Penry-Davey
T20017652
Royal Courts of Justice
Strand, London, WC2A 2LL
James Wood Q.C. and Tunde Okewale for the Appellant
Richard Whittam Q.C. for the Crown
Hearing date: 6 November 2014
On 29 th April 2002, in the Crown Court at Preston, before Penry-Davey J and a jury, this appellant (then aged 18, having been born on 23 rd August 1983) was convicted of murder, attempted murder and possession of a firearm. For murder, he was sentenced to be detained pending the determination of Her Majesty's pleasure with the specified minimum term of 12 years, less time spent on remand. Concurrent terms of 10 years and 7 years detention were imposed for the other offences. On 25 th May 2004, a renewed application for leave to appeal against conviction was refused by the full court (Clarke LJ, Jack J and Judge Fabian Evans): see [2004] EWCA Crim 1471. The appellant has since been released on licence.
In February 2005, an application was made to the Criminal Cases Review Commission ("CCRC") who, by decision dated 29 th January 2007, determined that there was no basis on which the conviction could be referred to the Court of Appeal. At some stage, the Innocence Project and Pro Bono Unit attached to Cardiff Law School became involved in pursuing the matter on the appellant's behalf and, in the light of new scientific evidence as to the significance of particles said to be gunshot residue which is reflected in R v George (Barry) [2007] EWCA Crim 2722, and a recent decision in relation to voice recognition evidence, R v Flynn and St John [2008] EWCA Crim 970, a further application to the CCRC was submitted.
Having obtained its own scientific evidence, on 8 th November 2013, the CCRC referred these convictions to this court pursuant to the provisions of s. 9 of the Criminal Appeal Act 1995 on the grounds that there is a real possibility of the court overturning the convictions, on the basis that the evidence of gunshot residue does not now attract the value attributed to it at trial, and therefore does not support the identification evidence. The appellant seeks leave to pursue further grounds of appeal relating to the admissibility of the voice identification evidence and the directions surrounding that evidence which followed.
The Facts
On the evening of 25 th July 2001 at Miles Platting, Manchester, Daniel Dale was fatally injured and Darren Thomas was wounded in the hand by shots fired from the same gun.
The appellant was originally arraigned with three others: Ryan Brown, his brother Nathan Loftus, and Arron Cunningham. Before the trial, Cunningham pleaded guilty to possession of a firearm with intent to endanger life, possessing ammunition without a certificate, and assisting offenders. He went on to give evidence for the prosecution. Loftus changed his plea of not guilty to guilty of possessing a firearm with intent to endanger life. He was sentenced to 5 years in a young offender institution.
Brown, whose defence was alibi, was acquitted of murder and attempted murder but convicted of wounding with intent (later quashed as inconsistent with the acquittals) and possession of a firearm with intent (for which he was sentenced to 8 years' detention, reduced to 7 years on appeal).
In short, the prosecution alleged that the appellant and Ryan Brown were responsible for the shooting, using a Walther PPK self-loading pistol which was recovered from the house of Cunningham. Cunningham said that he was minding the gun for Loftus, who had telephoned to say that the appellant would collect the gun. He described how a car arrived with the appellant driving. Brown got out of the car and collected the gun from him at the door of his house. The offence of possession of the firearm with intent to endanger life to which Loftus pleaded guilty was admitted pursuant to s. 74 of the Police and Criminal Evidence Act 1984. The defence of the appellant was one of alibi.
The Prosecution Case
The evidence against the appellant at trial (which was entirely circumstantial) can be described as being based on four limbs or pillars, namely the factual background to the relationships between the various participants leading up to the shooting; the evidence of Cunningham; the evidence of voice identification; and the presence of gunshot residue on a coat found at the appellant's home. The appeal relates strictly to the last two limbs but it is necessary to provide the context.
The background to the shooting was placed before the jury principally by way of a number of formal admissions by all three defendants; in addition, there was both CCTV and witness evidence all leading to the inference that the shooting was the outcome of gang rivalry.
In January 2001, Paul Ward was murdered. Between 23 rd and 25 th July 2001, a youth named Sheldon Keatings was tried at Manchester Crown Court in connection with that murder. Keatings was subsequently acquitted. It was admitted that the appellant was present at court on the 24 th and 25 th July and that on 24 th July, Keatings was punched in the face by Leon Critchley, a friend of Ward.
At about 4.30 pm on 25 th July, the appellant, Keatings and others left the court and travelled in two cars, a red Mazda and a silver Honda Prelude, to the Powerhouse Gym in Collyhurst. It was also admitted that the appellant, Keatings and others left the gym in the same cars and followed Critchley, who was riding a moped, to the New Allen Street area. The occupants of the cars were there threatened by a group of youths armed with various weapons. Critchley broke the driver's window of the Mazda with his crash helmet. Thereafter, both cars then left the New Allen Street area and were driven to Ruskington Drive, Harpurhey. The prosecution case was that the appellant and Brown then acted together with others as part of a joint enterprise in the shootings of Dale and Thomas.
Turning to the evidence that Cunningham gave, two aspects of what he said were capable of linking the appellant to the shooting: these were his report of two telephone calls and his visual identification of the appellant. As to the first, it was admitted that at 7.26 pm and 7.27 pm on 25 th July, two telephone calls were made to Cunningham's mobile telephone. In evidence, Cunningham said that both calls were from Loftus. In the first call, Loftus said that he was coming to get the "thing," by which he meant the gun that Cunningham was keeping for him. In the second call, Loftus said that he was not coming, but the appellant was: the conversation (including the identification by name of the appellant) was held to be admissible.
In that context, the admission of the fact that Loftus had pleaded guilty was said to be relevant to this element of Cunningham's evidence. The prosecution submitted that this was a necessary link in the evidential chain, which may be treated by the jury as confirming Cunningham's evidence as to the involvement of Loftus. The appellant's counsel submitted that it was irrelevant, or alternatively of only marginal relevance and should be excluded under s.78 of the Police and Criminal Evidence Act 1984. Penry-Davey J allowed the prosecution to adduce the guilty plea. He ruled that it was relevant to Cunningham's account, which was very much in issue, and that no unfairness was caused by its admission.
Turning to Cunningham's visual identification of the appellant, he said that 15 or 20 minutes after the second telephone call, a red car drew up outside his house. Cunningham said that the appellant was driving the car. In cross-examination, he accepted that he had a momentary glimpse of the driver and could not be sure that it was the appellant. It had been a black man who resembled him. In re-examination, he said that he had presumed that it was the appellant who was driving the car.
Brown came to the door and Cunningham handed the gun to him, wrapped in a plastic bag. Cunningham was certain about this identification. He had known Brown for a long time and saw him face-to-face. He later identified Brown at an identification parade. Brown got back into the front passenger seat of the car. As the car was driven away, Cunningham noticed two other black males sitting in the back of the car, but was unable to identify them.
Turning to the voice recognition, Stuart Shaw was among those called by the prosecution as eyewitnesses to the shooting incident. He said that on 25 th July he went towards New Allen Street. A burgundy Honda Civic car came down Osbourne Street. The car turned towards its side and two people in black got out from the passenger side at the front and the rear. Their faces were covered and they wore black gloves. They ran towards the group and raised their hands. Everybody ran. He heard one shot as he got to Keel Close. On Farnborough Road, he noticed the Honda Civic coming around the corner. He froze. It sped towards them and he shouted "Run." He ran through the alleyway. He heard somebody shout loudly "You're dead now." He said that it was the appellant's voice. He saw an arm raised and heard a gunshot, followed by Thomas shouting "Oh my hand". He carried on running towards Nuneaton Drive and his aunt's garden where he hid in the porch. He saw an arm and a gun, and then heard another gunshot. The gunman was roughly...
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