R v M (KJ)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter |
| Judgment Date | 20 February 2003 |
| Neutral Citation | [2003] EWCA Crim 357 |
| Docket Number | Case No: 200201861X2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 February 2003 |
[2003] EWCA Crim 357
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
(HIS HONOUR JUDGE PAGET QC)
Lord Justice Potter
Mr Justice Mackay And
His Honour Judge Mellor
(sitting As A Judge Of The Cacd)
Case No: 200201861X2
Mr Owen Davies QC for the Appellant
Mr David Evans (instructed by the Crown Prosecution Service) for the Respondent
Introduction
This appeal under section 15 of the criminal appeal act 1968 raises an important issue relating to the trial of persons who are unfit to plead. It also calls into question the determination of a jury based upon the untested evidence of a witness whose evidence was read to the jury pursuant to s.23 of the Criminal Justice Act 1988.
In November 2001, the appellant was due to be tried together with Tyrone Lindo, Ali Moses, Osbert Ponde, and Errol Tobiere upon an indictment arising out of an incident on 13 August 2000 when a 12-year-old Somali boy Abdirazak Hamza, was chased and stabbed to death during a music festival which took place at Elthorne Park, Holloway, London. Count 1 charged the appellant, Lindo Moses and Osbert Ponde with the murder of Hamza (i.e. Tobiere was not included) and count 2 charged all the co-defendants with violent disorder, contrary to s.2(1) of the Public Order Act 1986.
On 20 November 2001, in the Central Criminal Court before His Honour Judge Paget QC, the appellant was found to be unfit to be tried under s.4A of the Criminal Procedure (Insanity) Act 1964, ("the 1964 Act"). The effect of the extensive psychiatric evidence in that regard was that, while the appellant was adamant he had not committed murder, he had the intellectual capacity of a young child, was so suggestible and lacking in understanding that he could not follow the court processes, and that he would have been unable to give intelligent or coherent evidence.
On 8 January 2002, the indictment was amended to insert a new count 2 which alleged against all the co-defendants conspiracy to cause grievous bodily harm to Hamza contrary to s.1(1) of the Criminal Law Act 1977 and the former count 2 was renumbered as count 3. On 10 January 2002, Lindo and Tobiere pleaded guilty on re-arraignment to count 3 (violent disorder), Lindo being sentenced to a 12-month Detention and Training Order and Tobiere to 2 years' detention in a Young Offender Institution. Moses and Ponde pleaded guilty on the same date to count 2 (conspiracy to cause grievous bodily harm) and were each sentenced to 3 years 4 months' detention in a Young Offender Institution.
On 12 March 2002, at the Central Criminal Court before His Honour Judge Paget QC and a jury, the appellant was found to have done the act charged against him in count 1 (murder) under section 4A of the 1964 Act. He was made the subject of a Hospital Order under section 5 of that Act.
The Facts
The facts stated shortly were that on Sunday 13 August 2000 Hamza went to the musical festival mentioned above. He lived on the Elthorne Estate nearby. In the late afternoon he was surrounded by a group of black youths and chased from the park. He ran across Hazelville Road, along Partington Close and into Mulkern Road, heading towards his home in St John's Way. At some point in this journey he sustained 6 stab wounds to the chest, 2 of which pierced his heart. He collapsed in Mulkern Road, fatally injured. It appeared that the motive for the attack was a previous incident in which Hamza's brother had stabbed Lindo. By their pleas Lindo, Moses, Ponde and Tobiere admitted that they were in the group which chased the deceased. So far as the appellant was concerned, the Crown relied upon evidence that he was also present in the group, that he was seen afterwards with a knife which he wiped clean, and that he made comments amounting to an admission that he had taken part in the stabbing. The evidence to that effect was contained in the statement of a 17-year-old witness, Tamba Bona, which was read to the jury and which, as the judge directed them, was the entire basis of the prosecution case against the appellant.
The Evidence
The following were the principal witnesses for the prosecution. Lois Harvey gave evidence that at about 5.15pm when she was driving her car north in Hazelville Road a group of black boys aged apparently between 13 and 16 crossed the road in front of her coming from the direction of the park. They ran into a passageway and leaned against the wall as if trying to get their breath back. She had not seen anyone running ahead of this group.
Faisal Khan, who lived in a house backing onto the alleyway between Hazelville Road and Parkington Place heard the sound of people rushing and shouting. He went outside onto his balcony on the second floor and saw a group of 6 boys and one girl running into the alley from the direction of the park. When he went out he saw a young boy running down the stairs at the Parkington Close end of the alley near to a wall where the deceased's blood was later found. He was followed by a youth who was described by Mr Khan as aged 17 or 18, tall, skinny, with very short hair and little dreadlocks. He was wearing a baseball jacket with a diamond motif and the letter T on the back. (It was agreed that this was not a description of the appellant who was short, stocky and differently dressed.) Shortly afterwards Faisal Khan saw the tall youth returning back up the stairs and being asked by the group "Did you get him?", to which the youth replied "Yes". He was holding a knife with a 6 inch blade and a red handle which he wiped on his jeans, folding it and putting it in his pocket.
Hiba Zeno, a cousin of the deceased aged 8 or 9, gave her evidence by means of a video-recorded interview. She said that she had left the park with the deceased who was then surrounded by 6 or 7 boys. The deceased said "What is happening?" and one of the boys who had a bicycle with him said "What do you mean, what's happening?" This boy was aged about 14, shorter than the deceased and had light brown skin. He was wearing baggy trousers and a white sleeveless top. The deceased then ran into the alleyway and the other boys chased him. There was one boy who appeared to be the 'boss' because the others followed him when he ran. He was black, skinny and about 5cm taller than the deceased. He wore a blue jacket and baggy grey trousers which bore a newspaper print pattern. He wore a dark blue cap and a gold necklace with a cross on it. Hiba ran home to St John's Way to tell her mother what was happening. She looked out of the window and saw the 'boss' with his hand in his inside jacket pocket.
Sandra Derby who lived on Partington Place heard boys arguing and then a groaning sound. From her window she saw 5 or 6 boys apparently aged between 15 and 19 walking back towards the park, one of whom had a crippled leg. She saw a boy get up from the ground near to a barrier and road cone where the deceased's blood was later found in the gutter. He ran up Mulkern Road, with two of the other boys chasing him. However others in the group said "Low it, low it", meaning leave it. The two boys then ran back. Both had white or cream jackets, and one had his hand under his jacket as if hiding something. They walked towards the park looking behind them. Mrs Derby then became aware of the deceased lying in Mulkern Road and went to help him.
Augustin Lebie, aged 17 went to the festival with Tamba Bona who was a friend of his. At the park he met Lindo, Moses, Ponde and the appellant. Either the appellant or Ponde was wearing trousers with pound or dollar signs printed on them. One boy, probably Ponde, had a bicycle. There was a scuffle and some people ran from the park to the Elthorne Estate, Lebie following with another companion Curtis. About 8 to 10 boys ran past Lebie. He saw the deceased in front with 3 boys running behind him. Lebie followed. He saw the deceased struggling to run and holding his front. He staggered and fell on the pavement. The three boys following got within about 2 metres of him and then ran back. Lebie did not know those 3 boys and said they were not Lindo, Ponde, Moses or the appellant. However Lebie followed them and heard one asking who had done it. He did not hear the response. Back in the park, Lebie overheard a conversation between Ponde and the appellant in which they used the word 'hot', but he did not know whether this was a reference to the incident. There was an announcement over the public address system that a person had been stabbed and Moses, Ponde and the appellant appeared fearful; however so did others who were there. Lebie was wearing a cap with earflaps and walked with a limp, which features had been noted by Mrs Derby and another witness Susan Leah who had seen a boy of that description approach another boy and say "Leave him" before running away.
The evidence of Tamba Bona was read. He said he was in the park when he saw Lindo, Moses, Ponde and the appellant run off. Other people also disappeared at the same time. He said that he had remained in the park and had 'a bit of trouble' with some boys from Tottenham. Later he saw Ponde and the appellant returning, the appellant holding a silver-coloured knife with blood on it. He said "We've got him" several times. He seemed excited and was smiling. Ponde seemed normal. Bona assumed that the appellant had stabbed someone, but there was no conversation about it other than the appellant saying "We have to run. We have to divert". He said the appellant then went to his flat nearby accompanied by Bona, Lindo, Moses and...
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