R v Mendez (Reece) and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson |
| Judgment Date | 22 March 2010 |
| Neutral Citation | [2010] EWCA Crim 516 |
| Docket Number | Case No: 200902601 C2; 200902603 C2 T20080913 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 March 2010 |
[2010] EWCA Crim 516
HJ Goldsack QC
Before: Lord Justice Toulson
Mrs Justice Cox Dbe and Common Serjeant of London His Honour Judge Barker Qc (sitting as a Judge of the Court of Appeal Criminal Divison)
Case No: 200902601 C2; 200902603 C2
T20081003
T20080913
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SHEFFIELD CROWN COURT
Mr A Waterman QC instructed for the appellant Mr Mendez
Mr D T Fish QC instructed for the appellant MrThompson
Mr F P Watson QC instructed for the Respondent
Hearing dates: 17–18 February 2010
Lord Justice Toulson:
On 8 April 2009 the appellants were convicted of the murder of Dale Robertson after a trial lasting 45 days at Sheffield Crown Court before HHJ Goldsack QC. They were convicted as secondary offenders under the joint enterprise doctrine.
They appeal by leave of the single judge. The main argument on the hearing of the appeal was whether the judge gave the jury a sufficiently clear, accurate and fair direction about the law on joint enterprise as it applied to the appellants’ case. It is a subject which has given rise to many recent appeals.
The evidence in the case was complex and disjointed. Many of the witnesses were young people whose evidence in chief took the form of video interviews recorded at a time when the police investigations were at a relatively early stage. It was decided that it was impracticable to try to do much by way of editing the interviews. All those who were involved in the case, whether as advocates trying to present and probe the evidence or as the jury and judge trying to digest and evaluate it, had an exceptionally difficult task. At an early point in his summing up the judge said that he had tried to pull together what each witness had said into a coherent account, but that it had been a lengthy process and that he did not pretend that in each case it had been possible to do it. It is plain from the summing up that he did indeed take great pains to do as he said and it must have involved a considerable amount of careful preparation. For the purposes of the appeal it is sufficient to give a bare outline of the facts.
The deceased met his death from a 19 cm stab wound which penetrated the major chamber of his heart. He received two other stab wounds to his chest, one of which penetrated his lung. The attack took place shortly before 11 pm on 6 September 2008 in the street outside 7 Rokeby Drive in the Parsons Cross area of Sheffield. The deceased was aged 19. Thompson was aged 15 and Mendez was aged 17.
During the evening there was a party at 15 Rokeby Drive, the home of a girl called Jade, who was celebrating her sixteenth birthday. A large number of young people were present, including the appellants. At some stage Jade was told by her brother that some “X box” (games consul) games had gone missing. Her brother phoned an older family friend called Mel, who arrived shortly afterwards together with a group of her friends in two cars to sort the matter out. The deceased was one of Mel's group. On the group's arrival the mood became hostile and there was a clash outside 15 Rokeby Drive between some of the party goers and some of Mel's group. The deceased ran off up the street towards 7 Rokeby Drive. He was chased by a group of the party goers, who had an assortment of weapons including pieces of wood and a metal bar or bars. He was caught by the group and attacked with punches, kicks and blows with one or more of the pieces of wood and bars. He was also stabbed. The deceased managed to run away from his attackers and back past Jade's house as far as 40 Rokeby Drive, where he was attacked again. After a time the attackers ran off. When the police and ambulance services arrived, the deceased was lying in the road outside 40 Rokeby Drive. He died shortly afterwards in hospital.
Apart from the stab wounds, the deceased's injuries were not particularly serious. There were injuries to the back which could have been caused by pieces of wood with nails in them. There were injuries to the head which were consistent with a blunt force, for example, a punch or his head hitting the ground. They were not consistent with a full force blow with a bar. The pathologist described the wounds apart from the stab wounds as superficial. The injuries did not suggest a sustained kicking to the head.
At the trial there were seven defendants. All were charged with murder (count one) and violent disorder (count two). The prosecution alleged that Thompson was the stabber. The evidence against him came from a number of sources. The knife, which the police recovered, had been taken to the party by a sixteen year old called Josh Kent. He gave evidence that he took it to the party in order to show off. When he produced it, Thompson snatched it from him and refused to return it. Other witnesses also spoke of Thompson having the knife. In particular, Mel described a confrontation with him outside the front of the house when he had the knife in his hand and threatened to use it. There was also evidence of him being one of the youths who chased the deceased. He suffered a cut to his left hand which could have been caused by the knife. There was evidence from friends that he admitted to them afterwards that he had done the stabbing. He was interviewed by the police on a number of occasions. At one of the interviews he produced a prepared statement which falsely suggested that he had been carrying a mobile phone in his right hand. The prosecution's case against the other defendants was that they all participated in a sustained attack on the deceased with a variety of weapons and were therefore guilty of murder as secondary parties. The prosecution did not suggest that Mendez knew that anyone in the group had a knife until after the fatal stabbing had occurred.
At the close of the prosecution's case the judge accepted submissions on behalf of four defendants that there was no case for them to answer on the murder count. He did so on the basis that there was no evidence fit to go to the jury that any of those defendants was involved in chasing or attacking the deceased before or at the time of the stabbing. He rejected a submission that there was no case to answer on the murder count against Mendez.
Thompson was the only defendant to give evidence. He denied stabbing the deceased. He said that at the party Josh Kent produced the knife and put it in his hand, but he quickly gave it back and did not see it again. After Mel had arrived and trouble had broken out, the deceased swung a punch at him but it missed. The deceased then ran off and several people chased him. Thompson admitted that he ran after them as well and that he picked up a rotten fence panel on his way. When he reached the scene of the fighting, he tried to push through the group of people and to hit the deceased, but as he reached to grab him he felt pain from his left wrist being cut. He then dropped his stick and retired from the scene. His suggestion to the police that he may have been carrying a mobile phone was untrue, but he had said it because he did not want to own up to having had a stick in his hand.
After the conclusion of the evidence the judge asked Mr Watson QC whether the prosecution intended in the light of Thompson's evidence to seek a conviction against him for murder on the basis of joint enterprise, as an alternative to their primary case that he was the stabber. Mr Watson replied that they did not. The judge suggested that he should reconsider the matter and he said that he would. Having done so, Mr Watson maintained his previous position. In answer to further questions from the judge, he indicated that he could not see injustice to Thompson if the judge decided to direct the jury that it was open to them to convict Thompson as a secondary offender, but that was not how he intended to present the case for the prosecution in his closing address. Mr Fish QC submitted on behalf of Thompson that it would be wrong to direct the jury in the manner suggested by the judge, since the case had been conducted from first to last on the sole basis that Thompson was the stabber and he had conducted Thompson's defence on the same basis. If there had been reason to suppose that the case might be put to the jury on an alternative basis, he would not have called Thompson to give evidence. The judge indicated that he was going to leave the alternative of secondary liability to the jury in Thompson's case, and that he would give advance notice to the jury that if they returned a verdict of guilty against Thompson on the murder count they would be asked a supplemental question as to whether the conviction was on the basis that Thompson inflicted the fatal injury or was a secondary party.
The jury convicted Thompson on the basis that he was a secondary party. No verdict was returned against Thompson or Mendez on count two (violent disorder) because it was an alternative count. The third defendant who was still facing the murder count was acquitted on that count but convicted of violent disorder. A fourth defendant was also convicted of violent disorder. The other defendants were acquitted.
Mendez applied for leave to appeal against conviction on four grounds. Ground one was that the judge ought to have upheld his submission of no case to answer. Ground two was that the judge wrongly directed the jury in relation to joint enterprise and, in particular, in relation to whether the use of the knife was “fundamentally different” from anything the...
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