R v Matthews (Darren John); R v Alleyne (Brian Dean)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix |
| Judgment Date | 07 February 2003 |
| Neutral Citation | [2003] EWCA Crim 192 |
| Docket Number | Case No: 2000/01654/Z2; 2000/02349/Z2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 07 February 2003 |
[2003] EWCA Crim 192
Lord Justice Rix
Mr Justice Crane and
Hhj Maddison
(Sitting as a Judge of The Court of Appeal Criminal Division)
Case No: 2000/01654/Z2; 2000/02349/Z2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LUTON CROWN COURT
His Honour Judge RIVLIN QC
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr William Coker QC and Mr Amjad Malik for the Crown
Mr Stuart Stevens for Matthews
Mr Roderick Price for Alleyne
On the evening of 10 June 1999 Jonathan Coles, an 18 year old A-level student went with friends, including Lyndsey Brannif whose birthday it was, to a club in Milton Keynes. In the course of events that followed their leaving the club at about 2 am on 11 June Jonathan lost his life by drowning as a result of being thrown from the crown of Tyringham Bridge into the River Ouse. It was an isolated beauty spot where, at any rate in day time, young people would swim, and some would jump off the bridge. Jonathan was 5'10" tall and of slim build. He was short-sighted and had lost his glasses when set upon and robbed by a group of youths who later kidnapped him and drove him to the bridge. He was fit, but could not swim and avoided the water.
This is the appeal of Brian Alleyne and Darren Matthews, two of the four youths who were later indicted for (inter alia) Jonathan's murder. Alleyne was born on 3 August 1978 and was 20 at the time of Jonathan's death. Matthews was born on 1 April 1982 and was 17. Their co-defendants were Dwayne Dawkins (then 20) and Jason Canepe (also 20). Alleyne, Matthews and Dawkins were convicted of robbery, kidnapping and murder. Canepe was acquitted of robbery and murder, having pleaded guilty to kidnapping and manslaughter.
The terrible events of that night began when Jonathan and his friends came out of the club to go back by taxi with Lyndsey to her home in Guifford Park. Jonathan was picked on, punched and chased onto a large grassy area nearby, where he was caught. Alleyne and Dawkins admitted to punching and kicking him on the ground, and both said Matthews was involved as well. During the attack Jonathan's bank card was stolen. Those three then got into Canepe's car, which was parked nearby, and Canepe drove to the bank, where Matthews and Alleyne were shown on the CCTV trying to obtain money from the cash machine. They were unsuccessful, however, for Jonathan's account was empty. This made them angry.
By misfortune Jonathan, who had been separated from his friends and was in difficulties without his glasses, was trying to obtain help or a lift by flagging down a vehicle on the road when Canepe's car carrying the four youths came by. They stopped, and Jonathan was forced into the back seat, where traces of his blood were later found, between Matthews and Dawkins. At just after 3 am Canepe bought petrol at a garage: they then drove to Guifford Park in search of Jonathan's friends. Canepe parked a short distance from Lyndsey Brannif's house and stayed in the car with Jonathan, while the other three got out and, when a taxi arrived with Lyndsey and her friends, went over to them. Alleyne said they were looking for someone. When Lyndsey asked about Jonathan, Alleyne said "don't worry, we've sorted him" or possibly "yes, we've seen him". While Canepe was alone in the car with Jonathan he said to him: "I would love to let you go", but he was more concerned for himself. Before the others had got out of the car he had been told to keep Jonathan there with him, and Jonathan was told: "I know where you live and I know where your friends live." When Alleyne was subsequently arrested, his mobile telephone was found to have both Jonathan's and Lyndsey Brannif's numbers entered in it. Alleyne said that Canepe was sufficiently concerned to change the number plates of his car while parked up at Guifford Park. Canepe accepted that he was petrified people might see his number plates.
It was Alleyne's and Matthews' case that after leaving Guifford Park they were dropped off by the other two and knew nothing of subsequent events. There remains a ground of appeal on the part of Matthews that there was no case for him to answer at the half way stage, which we will deal with below. However, despite Alleyne's evidence that he had walked home and later ended up at Dawkins' flat, and despite Matthews' evidence that he had been dropped off at the top of his road and, supported in this by his mother's evidence, that he had spent the rest of the night at home, Dawkins and Canepe gave a detailed account of how events concerning all four of them ended in the tragedy at Tyringham Bridge. Since their case was that they were not at the bridge, Alleyne and Matthews could not assist the jury as to what had happened there. Subject to Matthews' rather half-hearted ground of no case to answer, he and Alleyne are compelled on this appeal to accept the account of Dawkins and Canepe, and to some considerable extent even rely on it.
Dawkins had pleaded guilty to kidnapping and manslaughter and had accepted his guilt on the robbery count during trial. In his evidence he said that after they had left Guifford Park Matthews had made the suggestion of taking Jonathan swimming. At first he described this as a light-hearted suggestion, but he came to acknowledge the seriousness of what was happening. Then they came to Tyringham Bridge, which he did not know. He could not swim. Alleyne, Matthews and he got out of the car with Jonathan; Canepe stayed in it. They manhandled Jonathan over to the crown of the bridge, where the drop into the water from the parapet is about 25 feet, although he said that it looked about 15 feet. Jonathan there said that he could not swim. "When Jonathan said he couldn't swim I felt it was a bit strange. I thought of myself and I knew what he was going through." However, he agreed that he played his part at the bridge, "to increase his terror". The other two put Jonathan, struggling, over the parapet. When Jonathan sought to cling on to the parapet, Matthews hit him on the back of his hands until his grasp was loosened and he fell into the middle of the river (which was about 64 feet wide at that point). Dawkins saw Jonathan surface and start doggy paddling towards the left bank. He got near to a log on the side of the bank and Alleyne and Matthews went down from the bridge to the bank there. Jonathan got about a foot from the log and was saying "Help". The other two stayed for a few seconds. He then returned to the car, which he reached about the same time as the other two. On the way back things were said such as "I hope he's made it" and "I wonder if he's made it", but he did not recall by whom.
Dawkins was asked why he had not intervened to stop Jonathan being thrown into the river, and he said "I wish that I had now". He agreed that, as a non-swimmer himself, he would get into difficulties and drown if dropped from the bridge, unless someone else saved him. But he said: "Drowning did not cross my mind at any stage. At the time I thought somehow that he would get across." He also said that he assumed that Jonathan had made it to safety, or had come very close to doing so, before he had returned to the car. The judge commented to the jury: "…you will remember his evidence, that the deeper and more searching the questions that were being asked the more unhappy and uncomfortable Dawkins was in answering them. He was obviously remembering the events at Tyringham Bridge."
In an extended passage in his summing up, the judge was careful to place before the jury Dawkin's defence as the only one of the four youths actually to give evidence of participation in the events on the bridge. Thus –
"[Counsel] said that the facts of this case are chilling. The four men in the dock have done a dreadful thing. They have robbed, kidnapped, intimidated and ultimately killed Jonathan. They did step outside the ambit of civilised behaviour. But, he said, being clinical and objective about what happened and not allowing emotions to run away with you, this was a cruel and dangerous prank which went unintentionally and disastrously wrong.
"He said Dawkins is obviously horrified as to what happened. He did make grudging admissions. He is diffident, ashamed, and remorseful, and his attitude must be sharply contrasted with the attitude and demeanour of Alleyne and Matthews. It is, as [counsel] said, as if Dawkins really has turned Queen's evidence in this case to support the Crown's case. He said that the whole incident was dominated by Alleyne. Matthews was the one who unequally had knowledge of the bridge. Canepe was the compliant car driver, Dawkins was the man in the back seat who said very little, but there is insufficient evidence that Jonathan's death, however tragic, was a virtual certainty. Although, as [counsel] put it, he accepts that there was a substantial risk that once he was in the water he would drown, but, he said, that is different from there being a virtual certainty that he would.
"He said that Dawkins has pleaded guilty to manslaughter, but he did not have the intention to kill…Dawkins had never been there before. He was a complete non-swimmer himself. He had taken a lot to drink. It must have been very dark, it was not pitch black but it was difficult to tell the difference between, for example, a log and a submerged branch. The water was surprisingly deep, very still, quite a narrow strip of water. How could Dawkins have been expected to assimilate and appreciate all of these matters? He is the only person on trial who has described what has happened to Jonathan...
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