R v Brown (Winston)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEYN,LORD JUSTICE SWINTON THOMAS,MR JUSTICE WATERHOUSE |
| Judgment Date | 23 February 1995 |
| Neutral Citation | [1994] EWCA Crim J0615-1 |
| Judgment citation (vLex) | [1995] EWCA Crim J0223-14 |
| Docket Number | No. 93/3945/W2,No: 94/6370/Y4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 February 1995 |
[1994] EWCA Crim J0615-1
Before: Lord Justice Steyn Mr Justice Owen and Mr Justice Kennedy
No. 93/3945/W2
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR I McMEEKIN appeared on behalf of the Appellant
MR A D CONRAD appeared on behalf of the Respondent
Wednesday 15th June 1994
This is judgment of the Court to which all members of the Court have contributed. In this case the question arose whether the Crown owed a legal duty to disclose information tending to reflect unfavourably on the credibility of a defence witness, thereby enabling the defence to make a more informed judgment as to whether it was prudent to call him. Counsel raised important questions about the scope of the Crown's duty of disclosure, and they debated the status of the Attorney-General's Guidelines: 74 Cr.App.R. 302. While we had no doubt about what should be the outcome of the appeal, we considered that further research was required before we could express firm views on such important questions. We accordingly dismissed the appeal but adjourned the giving of our reasons. Apart from our own researches, we have now had the benefit of further research by counsel, the Criminal Appeal Office and the Law Commission. We are grateful to all for their assistance. This judgment records our reasons.
The trial
On 18 June 1993 in the Crown Court at Manchester before the Recorder of Manchester, his Honour Judge Rhys Davies, a jury convicted the appellant ("the defendant") of wounding with intent to do grievous bodily harm. The Recorder sentenced the defendant to eight years' imprisonment. The Single Judge gave leave to appeal against conviction only.
In the early hours of 5th July 1992, and inside a social club in Moss Side, Manchester, a man stabbed a young woman, Michelle Patrick, with a long knife or machete in her leg, causing a deep penetrating wound. She nearly died. She was left with a permanent disability.
The Crown alleged that the defendant stabbed the victim. The Crown case was simple and direct. Michelle Patrick and a friend, Selina Rankine, testified that they both knew the defendant and that he had stabbed Michelle Patrick inside the club. Given the shape of the appeal, we can describe their evidence quite shortly. There was a background of friction between the defendant and Michelle Patrick. That arose from an earlier shooting incident in which the defendant had been wounded. Michelle Patrick's boyfriend was charged with the offence. He was, however, acquitted. On 5th July, according to the Crown witnesses, the defendant and one Edwards attacked Michelle Patrick in a car pack outside the club. She went inside the club and phoned the police. Selina Rankine then joined her. Michelle Patrick and Selina Rankine went outside. The defendant and Edwards, respectively armed with a blade and a truncheon, chased her into the club. Michelle Patrick said that the defendant then stabbed her. Selina Rankine said that she saw the defendant running into the club waving the weapon, and that she then saw that Michelle Patrick was wounded. It was put to these two witnesses in cross-examination that they were lying and that they were inspired by motives of hostility arising from the previous shooting incident.
The defence was an alibi. The defendant gave evidence that on the night in question he was at a party organised by Mrs Morris. The party was held about five minutes drive from the club. The defendant called a number of witnesses to support his alibi. Mrs Morris and her daughter, Michelle Morris, said that at the relevant time the defendant was at the party. Edwards, who was allegedly involved in the attack, also supported the alibi.
It is the evidence of two other witnesses to the defendant's alibi which are germane to the grounds of appeal. Gordon was the boyfriend of Michelle Morris. He said that he took the defendant and Edwards to the party, and that they did not leave in the course of the evening. In cross-examination it was put to him that Detective Sergeant Monaghan had spoken to him about the defendant's whereabouts at the time of the offence, and that he had told the police that he was too drunk to recall. Gordon accepted in evidence that he may have said this, but he explained that he would only have done so to get rid of the police. The defence had not been aware of the fact that Gordon had been spoken to by the police.
Another alibi witness also gave evidence which the jury may have regarded with some scepticism. Pinnock had originally made a statement directly implicating the defendant in the earlier part of the attack on Michelle Patrick. Subsequently he told the police that he wished to retract this statement, and that he was no longer willing to assist the Crown. His statement was withdrawn from the committal file. It was, however, served upon the defence. The defendant's solicitor interviewed Pinnock. The defence called him at the trial. They did so in the knowledge of Pinnock's earlier statement. He gave evidence to the effect that he did not see the earlier part of the incident but did see the two attackers in the club. He said the defendant was not one of the two attackers. In cross-examination counsel for the Crown put to Pinnock that when he called at the police station to withdraw his statement he had said that he was doing so because he had received threats. Pinnock accepted that he had mentioned threats.
After counsel's speeches the Recorder summed up to the jury. Subject to one qualification, counsel for the defendant accepts that the Recorder's summing-up was thorough, fair and accurate in respect of matters of law. The qualification relates to the evidence of Pinnock. He had exculpated the defendant in his evidence in chief. He was, however, cross-examined on the basis that he had previously made a statement implicating the defendant in the stabbing. About the evidential status of Pinnock's earlier statement, the judge directed the jury as follows:
"You heard reference in the course of the case of the witnesses evidence to statements that they have made in the past. For example, in the case of Michelle Patrick it was quite rightly put to her by Mr McMeekin in the course of his conduct of the defence case that she had said something in her statement which may have been to a degree at variance with what she had actually said from the witness box, and you are entitled, of course, to take into account if she agrees that she had said something on an earlier occasion which is different from what she says now. That matter could have affected your view as to whether or not she is a consistent and accurate witness. That is the proper way to conduct matters."
That is all we need say about the summing up.
The jury then retired and about an hour and a half later returned a unanimous verdict finding the defendant guilty as charged.
Grounds of appeal
At the hearing of the appeal three ground of appeal were pursued. The first ground related to the evidential status of Pinnock's out of court statement. The second and third grounds raise issues of non-disclosure concerning the evidence of two defence witnesses, namely Gordon and Pinnock.
The evidential status of Pinnock's earlier statement
Counsel invokes the principle that a judge should direct a jury that a previous inconsistent statement of a witness merely goes to his credibility and reliability: it may not be used as evidence of the truth of its contents unless the witness adopted it in evidence. One cannot blame a jury for thinking that this is an artificial rule. After all, the issues in a trial and matters of credibility and reliability often shade into each other. However, it is the law and we must apply it. Counsel submits that the direction of the jury, which we have quoted, fell short of what is required. The judge did not expressly direct the jury that a previous inconsistent statement is not evidence of the truth of its contents. Moreover, he submits that the judge should expressly have related the direction to Pinnock's evidence. In our view this is the sort of technical point which is often disinterred after a trial when counsel has had the opportunity of comparing, with the aid of a legal microscope, passages in a summing-up with the model directions issued by the Judicial Studies Board. For our part we are satisifed that read in context the relevant passages in the summing-up adequately conveyed to the jury that the direction applied to previous inconsistent statements of all witnesses, and that such statements could only be used to test credibility and reliability. We reject this ground of appeal.
Submissions on non-disclosure
The novel feature of this case is that counsel complains of non-disclosure by the Crown of information which tended to reflect on the honesty of defence witnesses, who were interviewed by the defendant's solicitor and called on behalf of the defendant. It will be recalled, (a), that Gordon had previously told the police that he was drunk and therefore unable to comment on the defendant's alibi and, (b), that when Pinnock withdrew his statement implicating the defendant, he said he had been threatened. Counsel for the defendant submits that these matters were known to the Crown. He argues that this information was relevant to the credibility of material witnesses and disclosable in the same way as information relevant to the credibility of witnesses called by the Crown may be disclosable, for example, previous convictions. He submits that the non-disclosure amounted to a material irregularity in the course of the trial, rendering the conviction unsafe and...
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