R v Downey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVANS |
| Judgment Date | 17 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J0317-12 |
| Docket Number | No. 93/1425/Z2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 17 March 1994 |
[1994] EWCA Crim J0317-12
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Evans Mr Justice Turner and Mr Justice Morrison
No. 93/1425/Z2
MR J MONTGOMERY appeared on behalf of the APPELLANT
MR J LOWEN appeared on behalf of the CROWN
On the 28th July 1992 the Appellant hired a Rover motor car reg. No. J255 UWK. On the evening of the 29th July two service stations in the Wembley District of London were robbed by a man wearing a stocking mask and carrying a gun. The first robbery occurred at 7.0 p.m. at a B.P. Service Station and the thief, after making the cashier Mr Abdul Azeez open the till, seized bank notes and coins amounting to £185.51. A similar robbery took place at an Esso Service Station about three miles away and about fifteen minutes later. On this occasion £86 was stolen. At both service stations, there was a video camera recording the events at the till, but these films did not enable the robber to be identified. However, at the B.P. service Station, the first to be attacked, an external video camera filmed the thief making his way across the forecourt away from the till. This video film was shown to the jury and in addition a still photograph was made from one frame. The jury was invited to find that the person portrayed in it was the Appellant, and their verdict indicates that they so found. There was no identification of the Appellant at the Esso Service
Station, but the thief was seen to make his getaway in a motor car with one other person. There was some difference of evidence as to the colour of the motor car, but no doubt about the registration number. It was noted by a lady witness and it was the same as that of the Rover which the Appellant still had on hire.
The two robberies were alleged against the Appellant as Counts 2 and 3 of the Indictment which was tried at the Central Criminal Court before His Honour Judge Denison Q.C. in February 1993. He was convicted on both Counts and sentenced to five years' imprisonment concurrent. Count 1 of the indictment did not involve the Appellant. Count 4 was a charge of conspiracy to steal against him and his co-defendant Brian Johnson. They were both convicted on Count 4 and the Appellant was sentenced to one year's imprisonment consecutive, a total of six years on the three Counts. He now appeals against these convictions with leave from the single judge.
The charge of conspiracy to steal under Count 4 arose in the following way. On the 31st July, two days after the robberies, the car was stopped by police officers. The Appellant was driving and there were two passengers. Johnson was in the front seat and a man named Connolly was in the rear. At Connolly's feet were two bags or hold-alls, each containing a gun. In the front glove compartment was a pair of black tights adapted apparently for use as a mask, and a pair of gloves. On the rear shelf was a denim shirt with a distinctive logo on the chest.
Although the video recordings of events at the tills did not enable any identification of the thief to be made, they did show that there was a number of similarities between the two offences. The learned Judge put it as follows in his summing up :-
"The two petrol station robberies, you may think, were very similar to each other. You have seen the videos of each of those robberies and you will remember that in each case the robber walks into the cashier's office, threatens the cashier with a hand gun; in each case the robber is wearing a black stocking mask; in each case the robber leans over the cashier's counter and grabs handfuls of notes from the till; and perhaps the most striking similar feature of both robberies is that having grabbed the monies from the till, the robber then leans further over the counter to satisfy himself that there is no further money to be taken."
The learned Judge could have added that in each case the robber shown was a man of similar build, white-skinned and, as Mr Lowen for the Prosecution put it, having the same look about him.
(1) and (2) Cross-admissibility—"Similar facts"
The first issue raised by the appeals against conviction on the robbery counts is whether the learned Judge was correct in law in holding that evidence relating to one robbery was admissible in respect of the other. The Judge so held, first, when rejecting a submission that Count 3, in respect of the Esso Service Station, should be withdrawn from the jury. Mr Montgomery, Counsel for the Defendant, made no submission in respect of Count 2, the B.P. robbery, because he accepted that there was sufficient evidence relating to that Count alone, in isolation from Count 3, to give rise to a case which the Appellant was called upon to answer. The Appellant did not give evidence or call any witnesses and so Count 2 was left to the jury without objection. But Count 3, he submitted, was different. There was insufficient evidence relating to that Count alone to justify leaving it to the jury, and there was no sufficient basis in law, he submitted, for the Prosecution's contention that evidence relating primarily to Count 2 was admissible in relation to Count 3 also. The question whether there was a sufficient connection in law was treated as equivalent to the test which is applied when "similar facts" evidence is relied upon, the relevant principles being found in D.P.P. v. Boardman (1974) 60 Cr. App. R.165 and D.P.P. v. P. (1991) 93 Cr. App. R.267.
The submission was rejected, and the learned Judge dealt with the matter in his Summing-up in the following terms, immediately after the passage quoted above :-
"It is important that you decide whether the same man committed both robberies because if you do come to that conclusion, and it is a matter for you, then you are entitled both in law and indeed in common sense to look at all the evidence relating to both robberies in deciding whether the Prosecution have proved that Downey was the robber. If you were to be sure that he was the robber at the B.P. Station—Count 2—then you can take that into account in deciding whether he was also the robber at the Esso Station—Count 3. Equally, of course, it works the other way round, if you are not sure that he was the robber at the B.P. Station then it must follow that you cannot be sure that he was the robber at the Esso Station." (12D).
Later, after dealing with the evidence relating to Count 2 and before turning to Count 3, he said this :-
"As I say, if you are sure that the same man committed both robberies then you can take the evidence on Count 2 into account when considering Count 3 and vice versa." (17D)
Mr Montgomery for the Appellant, whose submissions on behalf of the Appellant were a model of their kind, submits that the requirement of a "striking similarity" between the two robberies was not satisfied, and that therefore the learned Judge was wrong to rule that evidence of one robbery was admissible in relation to the other. That phrase, which comes from Lord Salmon's speech in D.P.P. v. Boardman at p.189, is, he submitted, still the appropriate test in cases where identity is in issue notwithstanding that the position on similar fact evidence in non-identity cases was altered by D.P.P. v. P. (see per Lord Mackay L.C. at 280), and this submission was not contested by Mr Lowen for the purposes of this appeal. Therefore, Mr Montgomery submitted, something in the nature of a "signature" is still required. The picture of the two robberies which emerged from the video recordings and other evidence was, he contended, "commonplace", and the necessary degree of correspondence therefore had not been shown to exist.
We would be prepared to hold, if necessary, that the test was satisfied in the present case, but in our judgment it is not necessary to do so. We accept Mr Lowen's submission that this case is of a different kind from those in which the "similar facts" rule has been developed and applied. Such a case was R. v. McGranaghan (C.A. transcript no. 90/2108/S see 1992 C.L.R. 430), which Mr Montgomery relied upon in support of his second submission. This was that the learned Judge misdirected the jury in the passages already quoted from pages 12 and 17 of the Summing Up. His contention in short was that the jury should have been told that there was no scope for similar fact evidence in relation to either Count unless they were first satisfied that the Defendant was guilty of one Count or the other without having regard to any evidence which did not relate specifically to that Count.
The question in McGranaghan was whether the appellant had been properly convicted of offences including burglary, rape and robbery on three separate occasions involving differenct victims. The Court held that the trial judge "was correct in accepting that the similarities in the circumstances and features of all three groups of offences rendered the evidence on one offence admissible in relation to the others" (per Glidewell L.J. at 26F). The judgment continued :-
"But the question then arises, admissible for what purpose and subject to what safeguards? Similar fact may be adduced for purposes. …. Here, the purpose was the different one of supporting the identification of the appellant by each of the ladies as her assailant" (26G).
The Court went on to hold that no use of "similar facts" evidence for this purpose could be justified unless the jury was first satisfied that offence B, which was relied upon to support a conviction of offence A, had in fact been committed by the defendant. "An identification about which the jury are not sure cannot support another identification of...
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