R v Gyima
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GAGE |
| Judgment Date | 07 February 2007 |
| Neutral Citation | [2007] EWCA Crim 429 |
| Date | 07 February 2007 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200602959 C3/200602964 C3 |
[2007] EWCA Crim 429
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Gage
Mrs Justice Cox
His Honour Judge Wide QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
No: 200602959 C3/200602964 C3
MR JD WHITLEY appeared on behalf of the APPELLANT
MR GL CARRASCO appeared on behalf of the CROWN
On 18th May 2006, at the Inner London Crown Court, Edward Gyima and Francis Adjei were convicted of two counts. The first was a count of assault occasioning actual bodily harm and the second a count of theft. On 15th June 2006 they were sentenced as follows: Gyima to four months' Detention and Training Order; Adjei to six months' detention in a Young Offender Institution on each count concurrent. They were acquitted of another count of robbery, of which count 3, the offence of theft, was an alternative. There were two co-accused. Jak Jackson pleaded guilty to counts 2 and 3 and was sentenced to a community rehabilitation order for 12 months with a curfew requirement for six months. James Miller was acquitted of all three offences. These appellants appeal by leave of the Single Judge.
A short summary of the evidence is as follows. On 20th July 2005, at about 8 o'clock in the evening, Joshua Parris, then aged 17, was attacked in the street in Kilburn. Two mobile telephones, one from each pocket of his jeans, a wrist watch and a diamond stud ear ring were taken from him as he was on the ground. It was the case for the prosecution that the appellants were party to a joint enterprise to assault Joshua Parris and to a joint enterprise to take his property.
Apart from the victim and the defendant, the only other witness to the incident was his 14-year old cousin, Kemar Hines, who came from the United States of America. He was on holiday at the time in the United Kingdom. On 26th July 2005, the police interviewed him on video. On 3rd August 2005, the police conducted a video parade of nine people which contained the image of the co-accused Jak Jackson. The victim picked him out but Kemar Hines made no identification. By the time of the trial, Hines had returned to the United States. The Crown applied successfully to adduce in evidence his interview and to introduce the previous conviction of Gyima for robbery and Adjei for attempted robbery into evidence.
In a little greater detail, the evidence at the trial was as follows. Joshua Parris gave evidence that on the evening of 20th July 2005 he had gone out with his cousin, Kemar. He came across a group of five boys, some of whom he knew from school, including the appellants and Jackson. Gyima, he said, acknowledged him. Joshua said that, in particular, Gyima was black, of stocky build, with broad shoulders and wearing a black vest. He described Adjei as athletic and six feet tall. The co-accused Miller was also six feet tall and he said he was wearing a grey jumper. Joshua said that he went to a local shop and bought some chips. He then returned the way he came. He was being followed by the group when the co-accused Jackson called him over. Jackson asked him why he had called the police in respect of a previous incident when Joshua had been beaten up and one of the boys involved had been prosecuted. Joshua told him to mind his own business and carried on but Jackson knocked his chips out of his hand and punched him once on the left side of his face. He said he fell to the ground. Whilst he was on the ground, he said he was kicked and punched by more than one person. He was unable to say how many people attacked him or who they were, he having curled up to protect himself. He did not see in which direction they ran off and he did not see who had taken his property. He said in his witness statement that he thought that there were at least four punching and kicking him. The blows came from different directions and he named a person called Ahmed as one of the five who told the others to stop.
There was some dispute about what might have been said by Joshua in his evidence. The Single Judge directed that a note be prepared by counsel as to what he had said in cross-examination. That is before us but, for these purposes, it is now accepted that the description of the evidence as related by the judge in his summing-up as to what Joshua had said was accurate.
Following the attack, Joshua was seen in hospital. He had sustained a bloodshot eye, bruising and tenderness about the nose, the right eye, the right cheek and left cheek. He had a one centimetre wound to the side of the right eye, which was treated with butterfly strips.
In accordance with the ruling made by the judge, Kemar Hines' video interview was put before the jury. He described a light skinned person wearing a grey coat stopping his cousin. He said the man then punched him to the head. Joshua tried to fight back but could not because the rest came. He thought there were four. It was five to one. They kept punching him when Joshua fell and they stole his watch. According to the transcript of the interview, Kemar said that he could recognise the boys again but had not seen them before or since. As it turned out, at an identification parade he was unable to pick out Jackson.
When these two appellants were interviewed, Adjei said that he never approached or touched the victim. He said all he saw was Jackson having a fight and he was not involved. Gyima made a prepared statement to the effect that he had said hello to Joshua and Adjei had engaged him in conversation. He said he had crossed the road when they started to argue and did not take part in any offence.
Gyima gave evidence in his own defence. He explained that his previous conviction had arisen out of an incident, which postdated this incident, when a car was driven over his friend's foot, the driver shouting something racial at him. He had seen the victim, Joshua, on the occasion of the incident and had greeted him. After that, he said that he did not really know what had happened or know exactly where the others were. His prepared statement, naming Adjei as being involved, was, he said, a lie. He said he did not stay very long and had not assaulted the victim or stolen anything from him. Everyone said it was Jackson but he had not seem him. He went to the other side of the road.
Adjei also gave evidence in his own defence. He admitted that he had been with the group. He said they walked away from the chip shop in the same direction as Joshua had walked but he was ahead of them. He said that Jackson talked to Joshua in a mild tone first but then knocked the food out of Joshua's hands and punched him. Adjei said he was surprised and did not know it was going to happen. He said it shocked him. He said people got off a bus and someone else ran over and said that there was no need for it. Those people pulled them apart. He recalled seeing one kick but did not see anything taken from Joshua. He did not touch Joshua and he did not take anything from him. He said he did not see anyone else join in, although he was not particularly focused on it. It was wrong, he said, to say that it was five to one. He said he had learned a lesson from his previous conviction, which had been a wake up call.
The co-accused Miller, a young man of previous good character, gave evidence saying that he had been with the others but after he got his food he did not meet up with them. He said he was not a party to the assault. He did not witness it and did not know anything about it until the next morning.
There are three grounds of appeal put forward by both appellants. For two of them they have leave; for the third they have not. Mr Whitley appears for each appellant because the grounds are common to both of them.
We turn to ground 1. It is submitted that the judge was wrong to admit the video interview of the witness Kemar Hines. The prosecution's written application for this evidence to be admitted was made pursuant to section 114 of the Criminal Justice Act 2003 but it seems clear that the relevant provisions were section 116(2)(c). It will be recalled from what we have just said that Kemar Hines was aged 14 at the time of the incident. He lived in New York in the United States of America and at the time of the incident was on holiday with his cousin, the complainant. By the time of the trial, he had returned to the USA. The prosecution made efforts to secure his attendance at the trial but failed. There was also a suggestion that his evidence could be taken by video link. The evidence before the judge as to why Kemar could not come to this country to give evidence or to give evidence by video link is contained in a witness statement made by Detective Constable Amy Quirk, dated 3rd March 2006. In it, she said that Kemar's mother had been contacted by Mrs Parris, Joshua's mother, to ensure that their consent was obtained for Kemar to return to the United Kingdom for the trial before returning home. However, the trial date was set and Kemar did return home.
His mother was contacted again and her consent was again given at that time. It was agreed with the Crown Prosecution Service that, due to Kemar's age, an adult, namely Kemar's mother, would be required to fly with him and act as his appropriate adult. It was also agreed that the Crown Prosecution Service would finance their stay in a hotel for the duration of the trial. On 7th February 2006, costings were officially requested and, at about that date, approved. This was all dealt with by the Crown Prosecution Service and the witness liaison clerk, Peter Cowan....
To continue reading
Request your trial
-
R v Derek Roy Hewlett
...until he had heard the evidence in-chief and cross-examination of the witnesses. We draw attention to the decision of this court in R v Gyima and Adjei [2007] EWCA Crim 429 at paragraph 40. If the judge had waited until all of the evidence was in, including evidence which suggested that the......
-
R v McCaughern (Desmond Paul)
...in relation to the evidence of C. In adopting this approach I was influenced by decisions such as the Queen v Gyima and another 2007 EWCA Crim 429. [18] In determining the present matter the Court in my view must address the following questions: (a) is the bad character evidence in play rel......
-
R v Riat (Jaspal)
...a general discretion, and such appears to have been assumed to be its effect, albeit without detailed argument to the contrary, in both Gyima [2007] EWCA Crim 429 and Atkinson [2011] EWCA Crim 25 Whichever is the statutory power under consideration, it is clear that hearsay must not simpl......
-
Paul Alec Drinkwater v R
...a general discretion, and such appears to have been assumed to be its effect, albeit without detailed argument to the contrary, in both Gyima [2007] EWCA Crim 429 and Atkinson [2011] EWCA Crim 1746. 25. Whichever is the statutory power under consideration, it is clear that hearsay must not ......
-
Authenticating ‘Things’ in English Law: Principles for Adducing Tangible Evidence in Common Law Jury Trials
...prejudicial: RvSaleem [2007] EWCA Crim1923 at [43].69 RvRowbotham (No. 4) (1977) 2 CR (3d) 244 at [30].70 Cf. RvGyima [2007] EWCA Crim 429 at [25]–[26].71 Cf. Boyle vWiseman (1855) 11 Ex 360 at 363.72 It might, if it looks reliable, be admissible under the inclusionary discretion created by......
-
Discretion to Exclude Hearsay Evidence under s. 126 Criminal Justice Act 2003
...discretion, and such appears to have been assumed to beits effect, albeit without detailed argument to the contrary, in both Gyima [2007] EWCA Crim 429 andAtkinson [2011] EWCA Crim 1746. (Riat at [23]–[24])156 The Journal of Criminal Law As was indicated above, the Court of Appeal in Drinkw......