R v Da Silva
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH |
| Judgment Date | 20 July 1989 |
| Judgment citation (vLex) | [1989] EWCA Crim J0720-6 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 5924/C3/87 |
| Date | 20 July 1989 |
[1989] EWCA Crim J0720-6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Stuart-Smith
Mr Justice Tudor Evans
and
Mr Justice Auld
No. 5924/C3/87
No. 5999/A1/87
MR. H. BRADSHAW appeared on behalf of the appellant Da Silva
MR. H. LAING appeared on behalf of the appellant Lord
MR. M. KAY Q.C. appeared on behalf of the Crown
On 26th October 1987 in the Crown Court at Chester, before His Honour Judge David Q.C., the appellant, Michael Reginald Da Silva, pleaded not guilty to a count of robbery, and on 29th October he was convicted and sentenced to 11 years' imprisonment. He now appeals against that conviction with the leave of the single judge. Jonathan Wayne Lord pleaded guilty to the offence and was sentenced to 7 years' imprisonment, and he appeals against that sentence with leave.
The facts of the case are these. At about 1 o'clock in the morning on 17th November 1986, two masked men entered the bedroom of a hotel owner, Adamos Penagi. They threatened him at knife-point and made off with about £8,500 in cash. The case for the Crown was that three men were involved in the robbery. Both Lord and the co-accused Carl Carroll pleaded guilty. It was accepted that Carroll was the look-out and remained outside the room. He was sentenced to 2 years' youth custody. It was alleged that Da Silva was the third man involved, the basis for the allegation being money and a dagger found in his bedroom, evidence that he was involved with Lord in planning the robbery, and a confession alleged to have been made to a fellow-prisoner.
Mr Panagi gave evidence that he was in bed in his room in the Gorsty Hall Hotel when two men came into his room. Their faces were covered with balaclavas, and one of them was holding a blade or knife. He was shown the dagger found in Da Silva's room and said that it resembled the one that he had seen. The other man was holding something which he thought might have been a shotgun, but he did not get a clear view of it. The man with the knife threatened to kill him if he did not tell him where they would find the money. The men took the money from drawers and then smashed the office door in. They took some £8,500, the week's takings, from a bureau in the office. They came back into his bedroom, threatened to kill him if he followed them, and then left.
At about 12.40 a.m. a police officer noticed a light-coloured BMW with three men inside. The driver was a coloured man. The car was being driven in the direction of Gorsty Hall. Some time after 1 o'clock, Mr Panagi's son Paul, who was returning home, also saw a light-coloured BMW driving away from the direction of the hotel.
Evidence that Da Silva was involved in the planning of the operation came from two witnesses. Mandy Swindells gave evidence that she had at one time lived with the appellant Lord. She said that he had got the idea of the robbery, and much of the background information, from their nextdoor neighbour, Mary Bates, who was Mr Panagi's sister-in-law. She said that Lord had discussed a possible robbery with four or five people, including on one occcasion the appellant Da Silva.
Philip Brotherton was another of the men that Lord had discussed his plan with. He gave evidence that Da Silva had also taken part in the discussion. He had been questioned by the police himself and eventually admitted that he knew something about the robbery in order to avoid being charged. He had named the appellant Da Silva and others.
Evidence was given as to what was found when the appellant Da Silva's bedroom was searched on the morning of 18th November. £480 was found under a mattress and £700 under the bed, £31 in coins on a window ledge, together with a Gorsty Hall brochure. The notes were all in bundles, eleven bundles of £100 and one of £80. The coins were in seven cash bags consisting of 50 pence pieces, some of the bags being from the Bank of Scotland.
Mrs Panagi had given evidence that she dealt with the money at the hotel. She had put the notes in the bundles of £100 and folded them in the same distinctive way that the money was found to be folded in the appellant's bedroom. She said that she had £500 worth of 50 pence coins in £10 Bank of Scotland bags similar to those found in the appellant's room.
The dagger was found on the floor of the appellant's bedroom, just under the bed. The prosecution also sought to adduce evidence of further weapons, a meat cleaver, a knife and a truncheon, found under the floorboards.
The appellant Da Silva was arrested and interviewed on four occasions. He said that an explanation for the money found in his room would be given when he had seen his solicitor, but in fact he himself never gave such an explanation. He could not explain the presence of the Gorsty Hall brochure. When he was told that Mrs Panagi had identified the money found in his room as folded in exactly the same way that the stolen money had been, he replied that it was a common way to fold money. He said that the knife found in his room was part of his martial arts collection.
Evidence of admissions of guilt came from two prisoners. The first was Michael Collina who gave evidence that the appellant Da Silva had told him that he had taken part in the Gorsty Hall robbery when they shared a cell at Crewe Police Station. He made a statement about this to the police. It is in relation to the use of this statement that one of the grounds of appeal arises, and I shall have to deal with it hereafter. He was cross-examined to the effect that he had subsequently written a letter denying the contents of his statement, but he had said in evidence that he had done so in response to pressure put upon him, not by the appellant Da Silva, at the remand centre. He had left the letter in his cell, but it had apparently found its way via Lord's solicitors into the hands of the appellant Da Silva's solicitors.
A second witness was Denis McIvor, who said that Da Silva had made the same admissions to him when they had shared a cell at Risley Remand Centre. But in cross-examination he accepted that most of his information had in fact come from Collina, and the learned judge invited the jury to disregard his evidence. Both McIvor and Collina were men of bad character, having previous convictions.
Da Silva did not give evidence, but two witnesses were called on his behalf. His brother, Ray Da Silva, said that he had seen articles like those found under the floorboards in the house where the appellant lived, and he knew that the appellant was interested in martial arts. Alan Clark, Da Silva's uncle, said that on the day before the robbery, he had lent his nephew £1,000 in notes.
There are two main grounds of appeal. The first relates to the evidence of Collina. He was called by the Crown to give evidence of a conversation with the appellant Da Silva, which had taken place on 21st November 1986, in which the appellant had admitted his involvement in the crime. Collina had made a statement to this effect on 22nd December 1986, in which he gave details of the conversation. He had not seen his witness statement before he came into the witness-box. When he came to give evidence, he said, to adopt the judge's summary since we do not have a transcript of Collina's evidence:
"I cannot remember now. It is a year ago. I did make a statement at the time."
Thereupon the judge intervened and invited the witness to withdraw and read his statement in the cells, he being a serving prisoner, under the supervision of a prison officer.
It appears that this incident occurred just before the midday break. This having been done, counsel for the appellant submitted, in the absence of the jury, that this procedure was irregular. That submission has been renewed in this court. Mr Bradshaw submits that there is a hard and fast division between contemporaneous statements, that is to say statements made at a time while the events that the witness is recording are fresh in his memory and those that are made at a later time. He submits that in the case of a contemporaneous statement, the witness can be permitted to refresh his memory from it provided he does so in the witness box and the ground for the application for permission is properly laid. In the case of a statement that is not contemporaneous, a witness may refresh his memory by looking at the statement before he goes into the witness-box but not thereafter. In this case he submits that the statement, having been made a month after the events related, was not contemporaneous and was not treated as such by the judge. The judge did not make it clear whether he was treating the statement as a contemporaneous one or not.
Mr Kay Q.C., on behalf of the Crown, submits that in effect he did so, and that it was only as a matter of convenience, because the incident occurred just before the natural break in the proceedings, that the witness was invited to read the statement in the cells.
Mr Bradshaw has drawn our attention to the case of R. v. Graham [1973] CLR 628, in which the court said that a judge should hesitate before deciding that a statement made 27 days after the event was contemporaneous. But the court was not there saying that a statement made after that length of time could not be contemporaneous. It is a question of fact and degree in each case, and the matter should be investigated to see that the events were fresh in the witness's mind after the lapse of time. Much will depend on the nature of the evidence to be given. Where, for example, a witness purports to give a verbatim account of a conversation, the note...
To continue reading
Request your trial
-
The State v Campbell
...what may be described as the traditional approach to determining the issue of contemporaneity. More recently the case of R v Da Silva 90 Cr App R 233 CA appears to have reformulated the traditional common law approach to contemporaneity (It is useful to note that the Criminal Justice Act, 2......
- Nederlandse Reassurantie Groep Holding N.v v Bacon & Woodrow (No. 2)
-
The State v Campbell
...above represent what may be described as the traditional approach to determining the issue of contemporaneity. More recently the case of R v. Da Silva 90 Cr App R 233 CA appears to have reformulated the traditional common law approach to contemporaneity (It is useful to note that the Crimin......
-
Hksar v Hon Ming Kong And Others
...333. Mr Caplan sought to rely on R v South Ribble Magistrates, ex p Cochrane [1996] 2 Cr App R 544 and Michael Reginald Da Silva (1990) 90 Cr App R 233 to support his contention that a judge has a discretion as to whether to permit a witness to refresh his memory from a non-contemporaneous ......