R v Smith (Dean Martin) and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses |
| Judgment Date | 25 June 2008 |
| Neutral Citation | [2008] EWCA Crim 1342 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2005/6686/C3, 2006/0193/C3 2006/0068/C3 AND 2006/0529/C3 |
| Date | 25 June 2008 |
[2008] EWCA Crim 1342
Lord Justice Moses
Mr Justice Openshaw and
His Honour Judge Roberts, Qc
Case No: 2005/6686/C3, 2006/0193/C3
2006/0178/C3, 2006/0067/C3,
2006/0068/C3 AND 2006/0529/C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
Mr Justice Mitting
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr J Lynch QC and Mr A Taylor-Camara for the First Appellant, Mr M Bishop QC and Mr R Lallie for the Second Appellant, Mr A S Webster QC and Mr O Daneshyar for the Third Appellant, Mr M Topolski QC and Mr M Huseyin for the Fourth Appellant, Ms A Weekes QC and Mr M Jackson for the Fifth Appellant and Mr P O'Connor QC and Mr P Wilcock for the Sixth Appellant
Mr A Barker QC and Mr A Lockhart (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 6 th– 9 th May 2008
Introduction
At about 3.37 a.m. on 20 November 2004 eleven men attempted to enter Premonitions nightclub in the middle of Birmingham. Two were armed with loaded pistols. They did not attempt to enter via the main entrance but went down an alleyway off the main street, Bristol Street, and tried to enter via a fire door. The doormen managed to prevent them doing so. As they were rebuffed, one of the group fired a single live round, threats were uttered and the group shepherded back out into Bristol Street, followed by doormen.
At about one and a half minutes after the eleven men had first arrived thirteen shots were fired in Bristol Street killing one of the doormen and injuring three others. All the group then escaped in the four cars in which they arrived.
The feature of the evidence in this appeal which is central to the arguments advanced is that the prosecution could not prove who fired the shots. But these six appellants, only one of whom, Parchment, gave evidence, were convicted over one year later on 2 December 2005 at Birmingham Crown Court of murder and attempted murder. The essential issue in the appeal is whether the prosecution could attribute to those who were convicted liability for the murder of the doorman and the attempted murder of three others as participating in those offences. Each appellant advanced particular reasons why the verdicts in their case were unsafe but common to all these appellants, save Dean Smith, was the submission that the evidence adduced by the prosecution was insufficient to establish criminal liability for the murder and attempted murders.
Facts
It is necessary to outline some of the facts on the basis of which the Crown were able to contend that all those who had attempted to enter Premonitions were guilty of murder and attempted murder. Four cars could be associated with the arrival of the eleven at Premonitions and the escape from the scene after the firing of the handguns. They were a Toyota MR2, admittedly driven by Parchment that night; a Ford Mondeo, a Golf, attributed to Smith and allegedly purchased by him under an assumed name and a BMW bought by Wilkins in early November 2004 which he had tried to sell two days after the murder. Three of these cars, the Toyota, Golf and Mondeo could be seen on CCTV, earlier that night in Aston and from there going to Walsall, and then back to Aston and on to Birmingham City centre. Telephone records of mobiles associated with Christie and Parchment linked those two appellants to the journeys made by the three vehicles. Wilkins's BMW appears to have joined the other vehicles at about the time they were parked, just before 3 a.m. in the car park of a nightclub, the Custard Factory.
The sequence of events involving four nightclubs in the City centre is of significance in this appeal. Prior to the attempt to enter Premonitions, the group, acting together, had tried but failed to enter the Custard Factory but had gained entry shortly after to the Air nightclub. CCTV shows some of them pushing their way into the Air nightclub but foiled by doormen who turned the lights on and turned off the music. They then drove in convoy to Essex Street, all four vehicles parking facing the same direction. Leaving the vehicles, the group walked the short distance to the Radius nightclub. CCTV shows some of them trying to force their way in, pushing and shoving. After a minute or so, during which some of them stood by the fire exit, they approached the Premonitions nightclub via the alleyway to which we have already referred. The purpose and nature of this course of conduct is of importance. It demonstrates that a cohesive group was intent upon entering a nightclub as a group in circumstances in which each must have expected that they would meet resistance and was likely to become embroiled in a confrontation. Amongst that group were at least two carrying the handguns to which we have already referred.
Although the make of one of the nine millimetre pistols could not be identified the material found at the scene of the murder could be compared with other fired material from unsolved shooting incidents in the Birmingham area. This established that the two pistols had been used on fourteen other occasions between 22 February 2003 and 2 October 2004. During three previous incidents, two in 2003 and one in 2004, they had been used together. Thus, this was the fourth occasion when they had been used in conjunction. Whoever had used these pistols had been able to hide them between the occasions when they were fired. Accordingly, amongst the group acting with a unified purpose to gain admission to a nightclub, two of their number had gained access to pistols which had been previously used in combination.
CCTV showed some of the group of eleven in Bristol Street, clearly intent on reaching Premonitions nightclub by means of the alleyway and deliberately avoiding the well-signed public entrance. The events at the fire exit from Premonitions nightclub are not only shown on CCTV but described by a number of those seeking to exclude those who sought to force their way into the club.
Adeel Aftab, on duty at the foyer, saw the group arriving. During the course of its attempt to push their way in, resisted by six or seven door staff, he noticed one man put his hand by his groin; an attempt, as the jury were entitled to infer, to demonstrate that he was armed. There were insults, pushing and shoving. One of the doormen, David Nwolisa, spoke of a man he identified as Ringo (the appellant Spencer) as gesturing towards the doorman saying “just cool”, in an aggressive or warning manner.
The doormen succeeded in preventing the group from entering. As it retreated down the alleyway, one of their number fired a shot. It was not possible to tell whether that was an accident, or whether the pistol was deliberately fired. The Crown relied upon it to show the absence of any reaction by any member of the group to suggest that that member was surprised by the firing of the gun. Nor, so the prosecution submitted, was there any attempt by any member of that group to disassociate himself from the group in consequence of what was asserted, on behalf of some defendants, to be an unexpected and spontaneous shot fired by a member of the gang who unknown to the others was carrying a loaded weapon.
The sequence of events after the doormen successfully resisted entry into Premonitions nightclub took place over a short period. It was but about one and a half minutes from the time when the group left the alleyway to the murder. But that period was said by some of the defendants to be of significance because it did demonstrate the absence of participation by certain members of the group who appeared merely to be leaving the side alley and returning to the cars parked in Essex Street.
One of the doormen, Hincion, heard a warning shout from those still in the club “It's Milly. Do not go outside.” Milly, it was suggested, was a name used to refer to the appellant Carter. The CCTV shows some of the group in Bristol Street. Hincion heard a man say “Go on, move off”. In response, one of two in the group who had gone into the road shouted “Smoke 'em. Make 'em know it's real”. Hincion says that the group all joined together so that their clothes touched. He heard a firing sound, saw orange sparks and felt something hit him. The group around those who fired numbered some six or seven. Others also heard the words “Smoke 'em. Smoke 'em. Show 'em the tings are real”. Another witness, Richard Williams, said that there were three or four shouting those words. He also heard the voice of one shouting “pop them”.
David Nwolisa, one of the doormen, described seven or eight in the group on the pavement and another two in the road when those words were shouted. Just before the firing he realised something was going to happen because the group on the pavement covered their mouths with bandanas and confronted the approaching doorman, walking backwards. Another doorman describes six on the pavement and two, as he put it, “at the top of the road”. He described those on the pavement as egging each other on and the shots, as others described, not fired as a fusillade but consecutively. A further doorman, Christopher Edwards, accepted that the group on the pavement, associated with those who fired the pistols, was smaller than those who had sought to enter the nightclub; he did not know where the others had gone. That the group surrounding those...
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