R v Cambridge

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeTHE LORD CHIEF JUSTICE
Judgment Date14 February 1994
Judgment citation (vLex)[1994] EWCA Crim J0214-19
Docket NumberNo. 92/1535/X4
Date14 February 1994

[1994] EWCA Crim J0214-19

IN THE COURT OF APPEAL CRIMINAL DIVISION

Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Auld and Mr Justice Mitchell

No. 92/1535/X4

Regina
and
David John Cambridge

MR GILBERT GRAY QC and MR MICHAEL ROACH appeared on behalf of THE APPELLANT

MR R DENYER QC and MR I BULLOCK appeared on behalf of THE CROWN

1

Monday 14 February 1994

THE LORD CHIEF JUSTICE
2

THE LORD CHIEF JUSTICEOn 13 February 1992, at Bristol Crown Court, this appellant was convicted of murder by a majority verdict of 10–2. He was sentenced to life imprisonment. He now appeals against conviction by leave of the Single Judge.

3

On 20 April 1991, at about 11.15 p.m., Martin Hopes (known as 'Dot') was fatally stabbed in a Bristol public house called the Portcullis. There had been several arguments earlier in the evening. One had involved the deceased and his girlfriend whom he had slapped and pushed to the floor. Another involved the appellant's girlfriend, Marie Casswell. She had been called a slag by another man. She became irate and asked the appellant if he was going to let the other man get away with it. At that stage the appellant did not rise to her incitement. There were then words between the appellant and the deceased. According to two witnesses, the deceased said: "If it were me, I would have hit her." The appellant replied: "If it just comes down to me and you then, Dot."

4

After that the appellant, the deceased and a man called Davies left the bar and went into the foyer. There was evidence that as he left, the appellant shouted to Davies: "I'll have you, Davies, when you are by yourself."

5

It is clear that the deceased was stabbed while in the foyer, but no-one claimed to have seen the knife or an actual stabbing movement. The Crown relied principally on the evidence of Davies and his girlfriend Samantha Tucker. Davies said that when he went into the foyer, he saw the deceased crouched in a ball and the appellant on top. He, Davies, struck the appellant several times from behind to try to get him off the deceased. Samantha Tucker pulled him away. She gave evidence to similar effect, save that she said the deceased was flat on his back. There was no evidence that anyone other than the appellant attacked or was in a struggle with the deceased. However, there were three significant wounds: one to the left temple, one just below the hip bone, but most importantly, one below the left collar bone which penetrated the pulmonary artery causing an ultimately fatal haemorrhage.

6

After being stabbed, the deceased managed to get up and go outside the public house where he collapsed. The appellant and his girlfriend got into a taxi. The taxi driver overheard their conversation. Marie Casswell was complaining that the appellant had not backed her up. The appellant said: "Don't worry babe, it's not over yet, he's dead." In cross-examination, the taxi driver agreed that he understood that comment as a threat for the future rather than an admission of murder.

7

The appellant and Marie were arrested in the early hours of the morning when they were in bed. The appellant's clothes were found soaking in the bath, but analysis of the bath water and its contents found no trace of blood. The appellant answered no questions in interview, but read a prepared statement denying the offence. In evidence, he said that when the mood in the public house changed, he decided to leave with his girlfriend. He went out, thinking she was following him. She was not, so he returned to the foyer where he was met by a tidal wave of people who bundled him to the floor and tried to attack him. Thus, his defence was: "Not me", and there was no suggestion that he was provoked into attacking the deceased.

8

The first ground of appeal is that the learned judge failed to sum up the evidence in sufficient detail and that he summarised only those prosecution witnesses who supported the Crown's case.

9

It is true that the learned judge reviewed most fully the evidence of Davies and Samantha Tucker, and that there were a number of other witnesses from the public house to whom he did not refer except in passing. However, Davies and Samantha Tucker were the only two who actually saw the deceased being attacked. They were therefore crucial. Mr Gray complains that the learned judge did not review the evidence of Nicola Peacock and Adrian Bryer. In fact, the learned judge did refer to Miss Peacock's evidence in the course of his summing up, and Mr Gray raised one point of her evidence before the jury retired, the learned judge accepting fully Mr Gray's reminder. Adrian Bryer gave no evidence as to what had happened to the deceased and, although Nicola Peacock said that Bryer had pulled the appellant up and in effect rescued him from attack, Bryer himself gave no such evidence.

10

Mr Gray also complains that the learned judge did not adequately remind the jury of the taxi driver's understanding of the appellant's remark, "He is dead." However, Mr Gray raised that point at the end of the summing up. The judge agreed with what he said and it was clearly before the jury.

11

There is no obligation on a judge to repeat or refer to the evidence of every witness. He must of necessity be selective and the learned judge here followed the accepted practice of telling the jury the facts were for them and that although he was not going to refer to all the witnesses, they should bear in mind all the evidence and draw their own conclusions. The learned judge put the defence clearly to the jury, and summarised the rival contentions succinctly and fairly at the end of his summing up. In our judgment, his treatment of the evidence was well balanced and cannot justly be criticised. Accordingly, the first ground of appeal fails.

12

A further ground complains of non-disclosure. It has emerged since the trial that there was evidence from a forensic scientist who examined the taxi in which the appellant and his girlfriend left the public house. His examination revealed no sign of blood or the knife. That information was not disclosed. Clearly it should have been, and Mr Denyer on behalf of the Crown concedes that the scientist's report ought to have been provided to the defence. Having said that, it was clear that the prosecution could adduce no evidence that the appellant had smeared blood anywhere as he left the scene or indeed that there was any blood on his clothing, nor was there any evidence to connect him with the knife. Mr Gray concedes that he was able to address the jury on this basis, but he argues that had he been provided with the scientist's report, he could have pursued the point with greater confidence. In our judgment, regrettable as the non-disclosure was, it did not make any difference to the outcome of the case.

13

We turn to the third and more substantial ground of appeal. Mr Gray submits that the learned judge ought to have left provocation to the jury as an issue for their consideration. As already noted, provocation was not raised on behalf of the defence. Indeed, it would have been inconsistent with the appellant's contention that he was not the assailant. Notwithstanding this, Mr Gray submits that a...

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