R v Becerra
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 16 December 1975 |
| Judgment citation (vLex) | [1975] EWCA Crim J1216-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4792/B/74 |
| Date | 16 December 1975 |
[1975] EWCA Crim J1216-1
Lord Justice Roskill
Lord Justice Bridge
and
Mr. Justice Kilner Brown
No. 4792/B/74
No. 499/B/75
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. P. OWEN, Q. C. and MR. G. JONES appeared on behalf of the Applicant Becerra
MR. D. A. EVANS appeared on behalf of the Applicant Cooper
MR. W. T. WILLIAMS, Q. C. and MR. K. THOMAS appeared on behalf of the Crown
There are before the Court two applications for leave to appeal against conviction for murder at Swansea Crown Court on 4th November last year after a long trial before Mr. Justice Mars Jones and a jury. The two applicants, both young men, named Cooper and Becerra, were indicted on an indictment which contained a number of counts, that large number being necessary to cover the enormity of the offences with which they were charged. A third man was charged with them. He was not however charged with murder. He was sentenced for his part in the less serious crimes of which these two men were also guilty, and nothing now turns upon his part.
There were four counts, which are relevant to the present applications. The first which concerns these applicants alone is one of murder, the victim being a man called Lewis. The second was of causing grievous bodily harm with intent to 8l-year old lady called Mrs. Francis. The third was of aggravated burglary and the fourth was of burglary. On the convictions other than the conviction for murder, the learned Judge passed sentences of five years' imprisonment concurrent on that count relating to the attack on Mrs. Francis, seven years' imprisonment concurrent for the aggravated burglary and three years' imprisonment concurrent for the burglary. I should mention that Cooper pleaded guilty to that last count early in the trial, but was convicted by the jury on the first three counts. Becerra changed his plea on that last count on 24th November, after being put in charge of the jury, and subsequently, like Cooper, was convicted on the first three counts.
The facts are horrifying, for they reveal acts of brutality almost unequalled even in this day and age. On 13th June 1974, in the early hours of the morning, these applicants and the third man entered this old lady's house at 8 Gore Terrace, Swansea, intending to steal some money that they had been told, as a result of a conversation in a public house, she kept in a drawer in her kitchen. It was said – whether truthfully or not does not matter – she might have as much as £4,000 there.
When they entered this house through the old lady's bedroom window, the applicant Becerra was carrying a clasp knife which had, according to undisputed evidence, a handle 4½ inches long and a blade 3½ inches long; and once that knife blade was opened, it remained rigid until a lever on the handle was released. The evidence was beyond question that Cooper knew that Becerra had that knife, and indeed Cooper borrowed it to cut the telephone wires leading to the house.
It is not necessary to go through the details, but some of the story must be related. Cooper climbed in through the window. The old lady began to switch her bedside light on and off. Cooper went over to her. He punched her, knelt and jumped on her, and covered her head with a pillow. Becerra and the third man followed Cooper. On Cooper's instructions the third man, somewhat reluctantly, took over the holding of the pillow over the old lady's face and Becerra cut the wires of the telephone by the side of the bed with the knife I have already mentioned.
Cooper then took Becerra's knife in his left hand and went out into the hall, going towards the kitchen. Why he took that knife and why he was given that knife was a matter of acute controversy at the trial. Mr. Lewis, who was the occupier of a first floor flat in the house came downstairs, obviously having been aroused by what he heard was going on. Becerra and the third man heard him, climbed out of the window and ran away. Cooper tried the back door, but it was locked and so he turned back and was confronted by lewis. There was a struggle in which beyond question Lewis was stabbed four times on the left hand side of his body and one of the stab wounds was 3½ inches deep and penetrated the right ventricle of his heart and he died. Cooper then made his escape through the window leaving the knife behind.
Only by the mercy of providence was the old lady not killed by the brutal treatment which she received. But she was greatly shocked and an innocent tenant of this house lost his life. Mrs. Francis herself was in such a state of shock that she was unable to speak and the medical evidence showed she had bruising on her chest and face. Mercifully there was no damage to her central nervous system.
The basic prosecution case against Becerra and Cooper was that they had entered into a common agreement to use such force as was necessary against anyone in the house to get the money or to avoid identification or arrest. It was urged that this common agreement included the use, if necessary, of the knife to inflict serious bodily injury, if not death, and it was alleged that Cooper, in furtherance of that common agreement, murdered Lewis with the knife in his left hand while he pinioned Lewis from behind with his right arm around Lewis's shoulder.
It is now necessary to say a word about how the knife came into Cooper's hand. It is beyond question that Cooper murdered Lewis. Some time afterwards, on 19th June, Becerra was involved in a motor accident; that is six days after the murder. He was taken to hospital in the early hours of the morning. Some eighteen hours later, just after 8.10 in the evening of 19th June, with the full consent of the experienced physician, who had charge of his case, the police interviewed him. Becerra then told the police that Cooper had said to him, just before Lewis was murdered and just before Becerra and the third man got out, "Give me the knife in case somebody jumps me". That obviously meant, if it was said, "Give me the knife in case anybody "comes who could identify me". This was emphatically denied by Cooper and by Becerra. Cooper said the knife had been handed to him in order to enable him, Cooper, to open the drawer. Becerra said the knife had been handed to Cooper to enable Cooper to open the bedroom door. So there was this straight issue of fact to be determined by the jury, whether or not those words had been used, and if so, what did they mean.
The learned Judge in a very full, clear and careful summing-up, stated the law regarding common design at the bottom of page 205 and the top of page 206 of the transcript. He dealt with the case of Cooper and he then went on to deal with the case of Becerra: "The case against Becerra is based upon the proposition that he and Cooper were acting together in pursuance of a common agreement - namely to kill or to inflict really serious injury, if the need should arise to avoid detection or arrest; to make good their escape, if they were detected while in the house, without being seen. Now when, Members of the Jury, two or more people make such an agreement, one may play an active role whereas the other may play a passive role: merely of lending support by his presence, or keeping a look-out, or the like. But once an agreement of that kind is made, the act of one becomes the act of the other, if that act is done in pursuit of a common design. Although it was Cooper who wielded the knife, Becerra is equally responsible for the consequence of Cooper's actions if he supplied the knife for the purpose of causing death or really serious injury - not necessarily in any event, but if it became necessary to do so to avoid identification or apprehension."
I will pause there for one moment. Leaving aside for the moment what one might call the original common design, the crucial question which the jury had to decide was, what was the purpose of Becerra passing that knife to Cooper immediately before Lewis met his death at the hands of Cooper; and also, in connection with that issue, to make up their minds whether they accepted as true the police evidence of what Becerra had said to them at the hospital. The learned Judge reminded the jury that Becerra had suffered from concussion as a result of his motor accident and that that was something to "be taken into account both in considering whether Becerra said what was alleged, and whether, if he did, that which he said was in fact true. No Court could find fault with the Judge's directinn to the jury on that point.
It cannot be gainsaid that the language in question (if used) was capable of giving rise to the clear inference that the common purpose underlying the passing of that deadly knife from the hand of Becerra to the hand of Cooper was so that if the necessity arose, the knife could be used for the purpose of inflicting serious injury, though not necessarily death, for the purpose of avoiding identification and subsequent arrest and punishment. Mr. Owen in his argument in this Court did not seek to say that those words were not capable of bearing that meaning. But he forcefully urged upon us, and this was his first argument on behalf of Becerra, that those words used in those circumstances were too slight a foundation on which the jury could base a conclusion of common intent such as I have mentioned, and that therefore any verdict of murder against the applicant founded upon that evidence was unsafe and...
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