R v Bryant
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE WATKINS |
| Judgment Date | 02 December 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J1202-2 |
| Docket Number | No. 2012/A1/77 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 December 1977 |
[1977] EWCA Crim J1202-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Geoffrey Lane
Mr. Justice Milmo
and
Mr. Justice Watkins
No. 2012/A1/77
No. 2013/A1/77
MR. R. HAMILTON appeared for the Applicant.
MR. R. FAIRLEY appeared for the Crown.
Philip Roy Bryant and Alan Oxley (alias Bryant and hereinafter referred to as Oxley) following refusal by the single Judge, apply for leave to appeal against their convictions for robbery by a jury at Chester Crown Court before His Honour Judge David on 23rd March, 1977. A third man, James Francis Antrobus, was also convicted with them of the same offence. He has not renewed his failed application for leave to appeal. Bryant was sentenced, to nine months' imprisonment. Oxley and Antrobus were sentenced to Borstal training.
The robbery was said to have been committed at 2 a.m. on 26th September, 1976, in Bryant's motor car which he was then driving from Liverpool towards Warrington. Antrobus was sitting alongside him. Oxley and their victim Ahmed Abdullah Gamez were sitting alongside one another upon the rear seat. Gamez is a native of the Yemen. He has an indifferent command of the English language. He knew the other three men. During the late evening of 25th September, 1976, all of them had been drinking in various public houses in Warrington. Eventually they all somehow came together and decided to visit a night club in Liverpool. Bryant drove them to the club where they drank more and danced. It was whilst they were returning to their homes in Warrington that, according to Gamez, Antrobus suddenly and unexpectedly changed the convivial atmosphere which up to then they were all enjoying. He, Antrobus, turned around and at the point of a knife demanded money from Gamez. He searched Gamez and took from one of his pockets three £10 notes. Oxley, who also had a knife or took over that used by Antrobus, pointed it at Gamez whilst holding him by the neck with his other hand. He relieved Gamez of cigarettes, a cigarette lighter and a wristlet watch. Gamez, frightened by what was happening to him, shouted to Bryant: "Stop the car they are going to kill me." Bryant ignored him and drove on. By then Gamez realised that blood was coming from a cut which had been inflicted above his right eye. Oxley gave him a rag to wipe the blood away.
Later on the car stopped because the defendants wished to relieve themselves. Gamez tried to get out of the car with them but the door was slammed shut and trapped and injured one of his fingers.
When they arrived in Warrington the car stopped. He was more or less pushed out of it. It was then driven away. Later that day he saw Bryant who asked him not to go to the police. Bryant promised to effect the return of his watch and lighter and loaned him £5. However, because Bryant did not within an agreed time keep this promise Gamez went to the police and reported the incident. He was medically examined. The examination confirmed the existence of a small cut or contusion above the right eye, a black eye and a damaged finger.
It should be mentioned that Bryant did retrieve the watch and lighter from one of his co-defendants and gave them to a witness, Mohamed Ali, so that he could hand them over to his friend Gamez. However, Mohamed Ali did not see Gamez until many hours after the latter had seen the police.
None of the defendants gave evidence at the trial. The general defence advanced on their behalf was that no robbery had taken place. All that had occurred was some drunken horseplay in the course of which some of Gamez's property had been taken from him. But there was no intention on the part of any of the defendants to deprive him of it permanently. On behalf of Bryant, in particular, it was submitted that he took no part in whatever happened in the back of the car, and certainly was not a party to any robbery. If he had been a party to robbery surely, so it was said, it was unlikely that he would have recovered, as in fact he did, some of Gamez's property for him.
This and many other questions were posed for the jury's consideration who, after being clearly and with one possible exception accurately directed upon the law and carefully reminded of the evidence, convicted the defendants as, in the opinion of this Court, the jury was upon that evidence entitled safely to do.
Having regard to the grounds of appeal it is necessary to relate some evidence which has not already been referred to. It was the only evidence provided by the defence. It was called on behalf of Antrobus and given by a young man named Rocky Fleming. He said he knew Gamez and the defendants. He and his girlfriend met them all during the night of the incident before they left Warrington to go to the night club in Liverpool. He was minded to accompany them, at the invitation of Gamez. He and his girlfriend entered Bryant's car which also contained the other defendants and Gamez. The girlfriend was dropped off at her home. A while later, Fleming changed his mind, decided to go home and he was dropped off near there. Gamez, when cross-examined, had denied that Fleming and his girlfriend were in the car at any time that night. Fleming's evidence could only have been introduced in an attempt either to discredit Gamez or to raise a doubt about the accuracy of his recollection of the night's events, or both. During cross-examination by the prosecution, this attempt was given more weight when Fleming for the first time maintained that, before he and his girlfriend entered the car, he noticed then that Gamez had a cut over his right eye. This had been caused, so he had been told, by a young man who was in some way involved in it when Gamez the previous evening had been engaged in a fracas in a public house in "Warrington. It had not been suggested to Gamez by defence counsel that he was in any way injured before leaving for the night club in Liverpool. So this part of Fleming's evidence came as a surprise to the prosecution and it may very well be to counsel for Antrobus as well as counsel for Bryant and Oxley.
Be that as it may, it was evidence which if accepted by the jury or which if, it left them in doubt as to whether it was true or false, could cast a shadow over the testimony of Gamez that he had been robbed. Therefore it was evidence which could have been of value not only to the defence of Antrobus, but also to the defences of Bryant and Oxley since it impinged directly upon one of the two vital issues, i.e., was Gamez, as he claimed, robbed whilst he was in the car.
This consideration is pertinent to that one of two grounds of appeal which is common to both Applicants. It is that: "The learned Judge was wrong to allow counsel for the prosecution to make a final speech against Bryant and Oxley when neither of them had given evidence or called evidence." This procedure was objected to by counsel for the Applicants when counsel for the prosecution was well advanced in his final speech following the evidence of Fleming. The objection may be none the worse for that and we accept, of course, that the thought of making such an objection only dawned upon counsel for the Applicants when he heard them being referred to in that speech.
The Judge listened to submissions in the absence of the jury upon the point. He considered them overnight. On the following day he ruled that counsel for the prosecution was entitled to make a closing speech in which he could comment upon the case as it then stood against all defendants. On that basis counsel continued and completed his speech. It was followed, of course, by a speech from counsel for the Applicants.
Two questions arise from this ground of appeal. They are: (1) when none of a number of defendants who are all represented by counsel gives evidence himself and calls no evidence, has prosecuting counsel the right to make a speech? (2) when the like circumstances obtain, save that evidence is called by one defendant but that evidence is relevant to and possibly beneficial to the defences of one or more of the other defendants, has counsel for the prosecution the right to make a closing speech with respect to the defendant who has called evidence and to the defendant whose defence may be beneficially affected by that evidence?
The industry of counsel for both the prosecution and the Applicants to whom we are grateful has enabled them to inform us most helpfully about the origins and developments of the rules of practice and procedure which govern the occasions when counsel may address a jury in a criminal case.
It may be that this ground of appeal could be effectively disposed of by this Court providing an answer to the second only of these questions, but since we have been asked to and so as to remove doubt, if doubt there is, concerning the proper procedure to be adopted in the situation envisaged in the first of the questions posed, we have considered both of them. The answer to neither of them is, save inferentially perhaps in respect of the first question, to be found in the otherwise most useful "Table of order of Speeches", set forth in paragraphs 578 and 578(a) of the 39th Edition of Archbold's Criminal Pleading, Evidence and Practice. The inference referred to is one that could be drawn so as to answer the first question in the affirmative from the contents of paragraph 579(a) and the footnote to which it refers. But since, in the view of this Court, such a procedural point should not be said to be settled inferentially and no authority is quoted for the footnote, the point must be explored with reference to such authority as there is upon it.
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