R v Otway (Elroy Otis)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford |
| Judgment Date | 14 January 2011 |
| Neutral Citation | [2011] EWCA Crim 3 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200903528 C3 |
| Date | 14 January 2011 |
[2011] EWCA Crim 3
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Manchester Crown Court Before Hhj Gee Qc and a Jury on 16 June 2009
Before : Lord Justice Pitchford
Mr Justice Cranston and
His Honour Judge Wide Qc
Case No: 200903528 C3
Mr Francis FitzGibbon QC and Mr Mark McDonald (instructed by SA Law—Solicitors) for the Appellant
Mr Brian Cummings QC (instructed by Manchester CPS) for the Respondent
Hearing date: 14th December 2010
Lord Justice Pitchford :
Just after 8.00 pm on Tuesday 22 August 2006 a blue Honda motor car entered Longlevens Road, Wythenshaw, Manchester and pulled up outside No 1. Both driver and passenger approached Mark Daniels who was shot dead in the street by the passenger gunman. Both men made their escape. Following a re-trial at Manchester Crown Court before HH Judge Gee QC and a jury on 16 June 2009 the appellant was convicted of the murder on the basis that he was the driver of the car in a joint enterprise with the gunman and sentenced to life imprisonment. The appellant was ordered to serve a minimum term of 27 years.
Keith J gave leave to appeal against conviction upon two grounds which concerned the judge's directions to the jury upon the issue of joint enterprise. While not giving leave in respect of grounds 3–6, the single judge indicated his view that the appellant should be permitted to argue those grounds before the full court for their cumulative effect upon the safety of the jury's verdict. The appellant's representation has changed twice since the drafting of grounds of appeal by trial counsel, Mr Reid QC. Mr Francis FitzGibbon QC and Mr Mark McDonald sought leave to argue three further grounds of appeal. In the first it is asserted that the trial judge was wrong to admit into evidence the opinion of Mr David Blake, a podiatrist, since he was unqualified to be an expert witness. The second and third additional grounds related to the treatment of the witness Michael Kelly as hostile and the judge's directions to the jury in respect of the value of Mr Kelly's evidence. The second and third further grounds were abandoned by Mr FitzGibbon at the commencement at the appeal hearing. We propose to consider the grounds of appeal in the following order:
(1) Admissibility of the evidence of Mr David Blake;
(2) Directions upon joint enterprise;
(3) Directions as to the facts.
Before embarking upon a consideration of the grounds we should describe, in summary, the circumstantial case upon which the prosecution relied.
The circumstantial case
The deceased, Mark Daniels, then aged 25, and Michael Kelly were close friends. They were in one another's company at about 5.45 pm on Tuesday 22 August 2006 near McDonald's restaurant in Wythenshaw. An argument developed between the deceased and the driver of a blue Honda motor car. At that time nothing came of the argument and the blue Honda was driven away. At 7.30 pm the same blue Honda motor car was captured on CCTV at a petrol station in the civic centre. At about 8.00 pm a blue Honda motor car drew into Longlevens Road and stopped. Michael Kelly told the police in a video recorded interview shortly after the killing that the blue Honda motor car was the same car as that whose driver had been engaged in the argument with the deceased near McDonald's restaurant and that the driver was the same man on both occasions.
CCTV film at both McDonalds and the petrol station demonstrated that the car was a blue Honda Accord V319 ELW hatchback. It had the same non-standard spoiler on the tailgate. The evidence of witnesses whose statements were read to the jury described the car used in the murder as a blue Honda Accord or Civic hatchback with a style dating from 1998 or 1999 (V registrations commenced in 1999) with a square wing type attachment on the boot to make it look "sporty". The car was described as metallic blue which matched the description of the vehicle captured by CCTV in the petrol station.
There was evidence, unchallenged by the appellant at trial, that he and the car were linked. In formal admissions it was recorded that the appellant had been seen with the car twice during the six weeks before the murder. On 13 July 2006 the appellant was in possession of the vehicle and of a valid MOT certificate in respect of it. The Honda car was found burned out on a dirt track at the rear of 75 Walton Hall Drive at about 1.30 am on 23 August 2006.
The appellant was in possession of a mobile telephone whose numbers ended in 655. It was habitually used by the appellant during August 2006. The appellant lived in Longsight, Manchester. Cell site evidence was consistent with the appellant's presence in the vicinity of McDonalds and the petrol filling station at the relevant times. 1 minute 44 seconds before the first 999 call at 20.07.51, the 655 phone received a text whose cell site transmission indicated that the appellant was not far from Longlevens Road. The mobile phone was not used after a call made at 6.45 am on 23 August 2006.
The appellant was employed as a cleaner at Selfridges, Exchange Square, Manchester. He worked shifts on 21 August and 22 August between 7.00 am and 10.00 am. On 23 August 2006 he left work at 9.24 am and never returned. On 16 July 2008 the appellant was arrested at Manchester Airport having landed on a flight from Qatar. During interview on 16 and 17 July 2008 the appellant chose to make no comment to questions although, at the time of his arrest, he said he had returned to the jurisdiction to "sort it out". He did not serve a defence statement and did not give evidence in his own defence.
Ground 1 – Admission of Expert Evidence
Investigating officers recovered from the petrol filling station in Manchester city centre CCTV recordings depicting the driver of the Honda Accord pulling up at a petrol pump, serving himself with fuel, entering the filling station shop and exiting to return to his car. While the CCTV recording was inadequate for the purpose of making a facial identification (and the driver was not recognised by the investigation team), its quality was regarded as sufficient for "walking gait analysis". There was provided to Mr David Blake a copy of the CCTV images (some 2 minutes duration in all but 20 seconds of walking time) together with reference samples of the appellant walking within the reception area of a police station and in a cell block. The recordings were of good quality. Mr Blake spent some 6 hours comparing the CCTV and reference samples reaching conclusions as to the similarity between the walking gait of the man seen in each of the images. He provided a witness statement to the prosecution dated 19 January 2009.
In his witness statement Mr Blake spoke of the 'science', his expertise and experience as follows:
"I am a podiatrist and specialist in lower limb gait, pathomechanics and biomechanics. I routinely use slow motion and freeze frame digital video camera equipment to analyse gait clinically to assess and diagnose anatomical and skeletal conditions. Forensic podiatry and CCTV analysis are key aspects of my practice. I am a specialist in biomechanics at Nuffield Hospital, Wolverhampton, as well as providing medico-legal reports. I have also presented my findings at Inner London Crown Court, Manchester Crown Court and Stratford Magistrates Court, London, on behalf of the defence and prosecution. I have been practising for 12 years, 9 of which have been spent at the Nuffield Hospital, Wolverhampton."
Mr Blake described the practice of gait analysis as follows:
"Gait analysis is the examination of walking or running. The gait, or walking cycle, skeletal movement in general can have recognised anatomical movements or reference points during a walking cycle. Biomechanics is the examination and analysis of body movement. Specifically in this case to humans the skeleton can at times give an anatomical signature that if not unique, can be a relatively rare anatomical position or movement to a few individuals. A person's walking cycle or his skeletal anatomy is difficult to hide as it is part of their body's anatomy. The science of gait analysis was introduced into the UK and the profession of podiatry in the early 1970s. The gait cycle can be broken down into factors such as the position of feet and other parts of the lower limb. Thus features of gait can be identified and sometimes quantified. Podiatrists use gait analysis virtually every day in their practice. Recently that science has been applied forensically. The Council for the Registration of Forensic Practitioners recognises gait analysis and footprint identification as important components in identification of individuals. A podiatric section has recently been set up … some clinicians may suggest that certain key elements of gait cycle or biomechanical (body) position and movement can leave a unique signature confirming that an individual in comparison is one of the same …"
It is an important feature of the evidence and argument considered by the court in this appeal that no attempt has been made, by expert evidence, to challenge the accuracy of this part of Mr Blake's evidence.
The first trial of the appellant took place in February 2009 when he was represented by Mr Griffiths of counsel and Miss Crossley, a higher court advocate. Miss Crossley made an application to Maddison J for the exclusion of Mr Blake's evidence. It was submitted by Miss Crossley that the exercise performed by Mr Blake was no different from that which...
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