R v Essa (Daha)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUGHES |
| Judgment Date | 14 January 2009 |
| Neutral Citation | [2009] EWCA Crim 43 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200802799/D2 |
| Date | 14 January 2009 |
[2009] EWCA Crim 43
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Hughes
Mr Justice Wilkie Sir Geoffrey Grigson
No: 200802799/D2
Mr H Charlton appeared on behalf of the Appellant
Mr P Ratliff appeared on behalf of the Crown
: This appellant appeals against his conviction for a robbery committed on a suburban train.
At his trial his stance was that there had doubtless been a robbery but the robber was not him.
The issues raised by his appeal relate to directions given by the judge upon two topics. The first was section 34 of the Criminal Justice and Public Order Act 1994, reliance upon facts not mentioned in police interview. The second was the absence of any defence statement, for which the relevant statutory provisions are sections 5(5) and 11 of the Criminal Procedure and Investigation Act 1996 (as amended).
The robbery took place on a Sunday afternoon, in January 2007, on a local train running between Clapton and Liverpool Street. The victim was a Mr Newport who was sitting in the last carriage of the train. There was only one other occupant of that carriage, unseen by Mr Newport until the train was underway. During the trip that other man robbed Mr Newport at knife point of his mobile telephone, i-Pod and wallet. He took out from the wallet Mr Newport's driving licence, read his address and threatened that now that he knew where he lived: “If you grass me up come and find you.”
The robber got off the train at Bethnal Green but, having dismounted, came up to the window alongside where Mr Newport was sitting, banged on the window and reinforced that last threat by saying again that he knew where Mr Newport lived. Mr Newport travelled on to Liverpool Street where there were police officers to whom he reported what had happened.
The police were able to recover from Bethnal Green tapes from the closed circuit television cameras on the station. They showed one man getting out of the last carriage of a train at the appropriate time and banging on the carriage window.
The appellant was arrested about six weeks later and was interviewed. After caution, in the conventional terms, he declined to answer any questions at all. Subsequently a video identification procedure was conducted; Mr Newport identified the appellant as the robber. At no stage prior to or during the trial was a defence statement of any kind served.
At the trial it became apparent, thus for the first time, that the issue in the case was whether the appellant was the robber, not whether there had been a robbery. It is worth saying that whilst that was always likely to be the issue, and may be was the most probable issue, it was not by any means inevitable that it would be the question. For all anyone knew before the trial it might have been the appellant's case, for example, that he had been present but the robbery had been committed by somebody else, or that there had not been a robbery at all but simply some kind of argument which had been misrepresented by Mr Newport. Nor are those by any means the only possibilities.
It transpired at the trial that the appellant was in the habit of using this particular railway line. His case was that although that was so, he did not use it on a Sunday, since there was no college that day. He gave evidence at his trial to that effect and he denied being the person who robbed Mr Newport and being the person shown in the closed circuit television photographs getting off at Bethnal Green. The description which Mr Newport had given before any video identification had taken place or he had sight of the closed circuit photographs was that the robber was black, about 6 feet in height, sporting two or three days' stubble growth on his face, in his early twenties, with an east London accent and wearing a long coat with a hood. Those features all fitted the appellant. Rather more significantly even than that, when he was arrested six weeks later, he was wearing a coat apparently identical to the one shown on the closed circuit television photographs being worn by the man who got off the train and who had been seen to go to the window of the train after doing so. There were a number of features of the coat which were in common: a manufacturer's logo; a reflective patch on the arm; headphones protruding from a particular place and, in addition, both the man in the photograph and the appellant on arrest were wearing identical light blue jeans and black trainers. Beyond those things the closed circuit television photographs from Bethnal Green show, admittedly hooded but from the front, the face of the man who got off the train and banged on the window. We have had the opportunity of seeing those photographs. The appellant gave evidence that the man in the picture is not him. The most that we say is that it is unsurprising that the Crown asserted that it recognisably was him.
The Section 34 Direction
The appellant gave evidence that he had declined to answer any questions at the police station on the advice of his solicitor. The solicitor had confirmed at the police station that that was his advice and that was in evidence at the trial. There is no doubt that directions pursuant to section 34 can be complex. The judge generally followed faithfully the steps which are conventionally taken. He identified the fact relied on at the trial which had not previously been mentioned. In this case that was limited to: “I was not there because and I don't use the train on Sundays.” There was no positive defence.
Next, the judge correctly directed the jury that they must not convict the appellant either wholly or mainly on the basis of reliance on something which had not been said in interview and he reinforced that direction by saying to the jury that they might think that was obvious because if the prosecution case is so weak it does not call for an answer, then merely because someone is silent in a police interview, that could not convert a weak case into a strong one. ]
Next, the judge correctly directed the jury that they were entitled, albeit not bound, to draw the adverse section 34 inference, only if, first, he could reasonably have been expected to say in the police station what he now said at trial, secondly, that the only sensible explanation for his not saying it in interview was that he had no answer or none that would stand up to scrutiny, and thirdly, that the case was otherwise sufficiently strong to call for an answer. The judge reminded the jury of the appellant's case which was in evidence, namely that he had adopted the stance that he did at interview on following advice from his solicitor to that effect. This was not a case in which either the appellant or the solicitor gave any further evidence as to what passed between the appellant and the solicitor in either direction. Accordingly, in those circumstances, privilege continued to cover what they had said to one another.
Having told the jury that the appellant had said that he had relied on his solicitor's advice, the judge went on to say this:
“How does that fit in then with the direction that I have just given you? When you consider the key question on this point, was it reasonable for the defendant to have said nothing in his interview about a...
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