R v O'Flaherty (Errol Carlton) ; R v O'Flaherty ;R v Ryan; R v Toussaint
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mantell |
| Judgment Date | 10 March 2004 |
| Neutral Citation | [2004] EWCA Crim 526 |
| Docket Number | Case No: 200204499B1, 200204500B1 & 200204501B1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 10 March 2004 |
[2004] EWCA Crim 526
Lord Justice Mantell
Mr Justice Beatson and
The Recorder of Newcastle
Case No: 200204499B1, 200204500B1 & 200204501B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE BARKERQC
T20018368
Mr S Coward QC (instructed by CPS) for the Crown
Mr H Grunwald QC & Mr F Caramazza (instructed by Ashok Patel & Co) for O'Flaherty
Mr T Spencer QC & Mr M Jowitt (instructed by Borneo Linells) for Ryan
Mr J Coffey QC & Miss D Connolly (instructed by Galbraith Branley & Co) for Toussaint
Events of 21 March 2001.
These are the appeals of Errol Carlton O'Flaherty, Phillip Junior Ryan and Mitchell Paris Toussaint. They exemplify some of the difficulties facing judges in giving comprehensive and comprehensible directions on joint enterprise, hardly less daunting than performing the same task for provocation.
On 21 March 2001 a young man called Marcus Hall and about 15 of his friends travelled from Peckham in South- East London to Luton. The group was known as "The Peckham Boys". Ostensibly they had gone to Luton to hear a band called "So Solid Crew" play in a nightclub called Atmospheres. They did not arrive at the club until the concert was nearly over. There were suggestions that they had gone to Luton not to enjoy music but to cause trouble. Be that as it may, by the end of the night Marcus Hall was dead. He was eighteen years of age.
The Peckham boys were refused entry to the club; but by one means or another some of them managed to get it. Others waited outside. Inside were the appellants and their friends. The event ended at about 2.00am and everyone came out into the street.
Much, but not all, of what happened in the ensuing very short space of time was captured either on the local authority CCTV cameras or on a video recording taken by a member of the public.
Atmospheres is on the corner of Flowers Way and Chapel Street. The first direct physical contact between the two factions seems to have occurred in Chapel Street when some from Hall's group became involved with two men from what might loosely be called the appellants' group. In the latter was Jermaine James, a friend of O'Flaherty. James was pursued along Flowers Way by a number of men one of whom was wielding a big stick. At about the same time the deceased and four or five others were chasing a man called Leon Hendrickson and another also along Flowers Way. It would seem that Hall was carrying a baseball bat.
Meanwhile O'Flaherty learnt that Jermaine James had been seen being chased by a group of men carrying weapons. He decided to go to his aid. O'Flaherty had travelled to Luton in a stolen car. O'Flaherty looked in the boot of the car for a suitable weapon and came across a cricket bat. He claims not to have known it was there.
Soon after O'Flaherty met Marcus Hall and others from his group. Hall had the baseball bat. Others in the group had weapons of one sort or another. O'Flaherty had the cricket bat. O'Flaherty wanted to know what had happened to James but his enquiry was met with abuse and a volley of beer bottles which he was able to avoid. There was an exchange of blows between O'Flaherty and Hall. It is not clear whether or not any connected. Nor is it entirely certain but seems probable that O'Flaherty backed away.
By this time Mitchell Toussaint had become involved. He took up a position on O'Flaherty's right hand side and on the video he is clearly seen to be holding a claw hammer. Hall then struck further blows at O'Flaherty. O'Flaherty responded by striking out with the cricket bat. Phillip Ryan joined in by trying to hit Hall with a beer bottle. Toussaint threw the claw hammer at him.
The incident then moved on from Flowers Way and into Park Street West. Hall is to be seen in the middle of that street on the ground surrounded by a number of men. O'Flaherty advanced to within a few feet of the prone body. He was still holding the cricket bat but is not seen to use it again and was the first to move away from the scene. It was common ground that Ryan and Toussaint did not enter Park Street West.
By this time Hall had received fatal injuries. There were a number of stab wounds to his back, three of which penetrated the lung. There were slash wounds to his face and he sustained a fractured skull with subarachnoid and subdural bleeding. He was taken to hospital where he was pronounced dead. The whole episode lasted no more than two minutes.
Throughout the events that we have described relating to the three appellants it will be understood that there was continuing violence between many others the detail of which does not concern this Court.
Arrests and interviews.
On 21 April 2001 O'Flaherty was arrested on suspicion of murder. He said "I know nothing about that". He said that he had been hit on the head twice and had picked up the cricket bat which someone had left there. He had got a lift home and had thrown his leather jacket away. He denied that he had hit out at anyone. He was interviewed for a second time after he had seen some of the video and agreed that it appeared that he had hit someone. However, he could not recall hitting anyone. He said that he did not know how he had come by the bat but he accepted that the bat had made contact with the back of somebody and that his previous account had been untrue. He said that he did not know who had had the hammer. He denied that he was close to Mason (who was alleged to have stabbed Hall) and had not seen him for about two months.
In a third interview O'Flaherty said nothing about looking after his friend Jermaine James. In a later interview still, he said that he did not touch the deceased in Park Street West, that he had just come round the corner, walked over and said "Just stop it". He said that he did not recognise anyone in Park Street West and that after he and the deceased had squared up to each other in Flowers Way he had run up the street from instinct and was just following the crowd. He denied causing any of the stab wounds, cuts or the injuries to the head.
Ryan was arrested on 26 April. He said that he did not know who was fighting and that after getting something to eat had got a lift away from the scene. Later he said that he had walked through the crowd until he reached the front and then stood watching. He agreed that he could see weapons but did not know who was holding them. He agreed that he recognised O'Flaherty and denied that he (Ryan) had been involved in any fighting in Flowers Way.
To begin with Toussaint made a witness statement which he later acknowledged was inaccurate as to the clothing he had been wearing, as to leaving the club alone and to seeing a group chasing the two Jermaines. He said that he was not wearing his contact lenses. When interviewed under caution he declined to make any comment.
Other defendants who are not concerned in this appeal were Marlon Damien Mason, Kimani Devante Vassell and Leon Licorish. In due course they were arrested and interviewed.
In his interview Mason said that he could remember very little of the evening. He did not know Atmospheres nor could he remember what the event was to which he had gone. He denied that he could be seen on the video or that he was the man wearing a white shirt and jacket. He was not the man who could be seen bending over the deceased's body with a knife in his hand.
Vassell denied being in either Flowers Way or Park Street West and said "no comment" when asked if he knew any of the appellants.
Licorish admitted being in the group that chased the deceased. He said that the deceased had fallen over and that a number of people had hit him. He said that he had kicked him two or three times in the legs but had not intended to cause him serious harm.
Cause of death.
There was a considerable volume of medical and pathological evidence but no unanimity as to the proper conclusion. This survey is distilled from the reports and the evidence given at trial.
Dr Al-Sarraj, a consultant neuropathologist, found what he described as trauma blood between the second and third layers of the brain of the deceased. This was caused, he thought, by a blow in the mild to moderate category. There was no bleeding within the brain which would have been expected if there had been deeper damage. He described four areas of haemorrhage which could have resulted from one incident of trauma. He considered that it would have taken about 90 minutes from the moment the lungs ceased to act properly for the brain to be affected. He was of the view that the head injury was not fatal in itself but could have been a contributory cause of death.
The post mortem conducted by Dr Carey revealed the following findings:
i) Blunt impact injuries to the face which could have come from a foot or impact with the ground.
ii) A cut on the left cheek as far as the ear probably caused by a light sweeping action with a single object.
iii) An injury to the left ring finger which was probably a defensive injury.
iv) A group of nine stab wounds to the body the deepest of which was 6cms and travelled in a downwards direction. Two of these wounds had caused the lungs to collapse.
v) A horizontal fracture of the skull at the back of the head. This was a star shaped split to the skull caused by significant impact from blunt force either from an object or contact with the ground. Dr Carey said that such injury was commonly encountered as...
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