No: 9503897/Z2

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Friday 7th February 1997
 
                    B E F O R E :
 
                 THE VICE PRESIDENT
                 (LORD JUSTICE ROSE)

                  MR JUSTICE DYSON
 
                         and
 
                     MR JUSTICE ASTILL

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                     R E G I N A
 
                       ‑ v ‑

                  DESMOND KAVANAGH
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
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        (Official Shorthand Writers to the Court)
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MR FITZGIBBON appeared on behalf of the Appellant
MR C SHERRAD appeared on behalf of the Crown
 
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                      JUDGMENT
          (As Approved by the Court)
                  Crown Copyright
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                               Friday 7th February 1997
LORD JUSTICE ROSE:  On 17th May 1996, at Kingston Crown Court, this appellant was convicted of robbery. Subsequently he changed his plea to guilty in relation to a separate offence of handling stolen goods and, on 25th June, was sentenced by His Honour Judge Haworth, before whom the trial had been conducted, to 14 years' imprisonment for the robbery and 12 months' imprisonment concurrently for handling.
      He appeals against conviction and sentence by leave of the Single Judge.
      The victim of the robbery was a Mrs. Tate, who was 77 years old. She gave evidence that at 8.30 a.m., on 28th July 1995, she opened her front door on her way out. A man standing on the doorstep, holding a bunch of flowers, asked for Mrs. Williams. Mrs. Tate directed him to another house. The man pushed her back in the hallway, dragged her round the house and searched for valuables. She had a panic button which at that stage she was not able to press. The man took her upstairs and found her jewellery. He wrapped an item of her clothing round her head, tied her hands behind her back with a belt and locked her in a wardrobe.
      After he had left she worked herself free and sounded the alarm. She described the robber as a white  male, 5 foot 7" to 5 foot 8" tall, clean shaven, with dark brown medium length hair, slim build, aged 30 to 40, with no distinguishable accent and wearing glasses, which were broken in the struggle. He had jeans, brown shoes and a brown corduroy jacket. The postman gave a similar description.
      Her evidence was that when she went out, even for quite a brief period when crossing the road to the post box, she would lock her door using the Yale lock.
      Her cleaner, a Mrs. Nonog, gave evidence that she cleaned the inside of the front door every Monday. She also confirmed Mrs. Tate's evidence that the door was never left open and unattended by Mrs. Tate. The significance of that evidence will emerge in a moment when we come to fingerprints.
      There was before the jury scientific evidence of three kinds. First, in relation to a footprint. The robber had been wearing footwear with a pronounced tread pattern, which left its impression on Mrs. Tate's carpet.
      On the day of the robbery the appellant had been wearing shoes with a pronounced tread pattern. The scientific evidence went to the extent, but no more, of indicating that the tread pattern on Mrs. Tate's carpet was consistent with having been made by the tread on the  appellant's footwear.
      The second category of scientific evidence related to fibres. Fibres were found on the appellant's shoes, seized at his home on 4th August, that is to say just over a week after the robbery.
      These fibres matched those on Mrs. Tate's carpet. The conclusion of the expert who gave evidence for the prosecution was that the fibres provided "moderate support" for the proposition that the appellant's shoes had been in contact with Mrs. Tate's carpet, that is to say the fibres on his shoes could have come from that source.
      There was evidence by an expert, on behalf of the defence, that there could have been some contamination of the appellant's shoes by reason of the way in which they had been handled by the police officer who had seized them because that officer had herself been in Mrs. Tate's house. That witness also said that fibres only usually remained on the sole of a shoe for a few minutes but they could remain for weeks if caught in a groove.
      The third and much the most important category of scientific evidence related to the appellant's finger and palm prints. Inside Mrs. Tate's front door there was found a print from the appellant's right ring finger, 43  inches above the ground, pointing towards 11 o'clock and the shutting edge of the door. The appellant's palm prints were also found on the inside of the door. The left hand one 39 inches from the ground and the right hand one 41 inches from the ground, both of those palm prints being near the shutting edge of the door. The conclusion reached was that those marks were consistent with the appellant having been inside the premises and having shut the door.
      The appellant was interviewed on 9th August. Towards the end of his second interview, he said that he had been advised by his solicitor to make no comment. To the significance of that we shall shortly return, because it gives rise to the principal submissions advanced in support of this appeal.
      In evidence the appellant told the jury that, on the day of this robbery, he had been in Chelsea from about 7.30 a.m., having stayed there the previous night with a friend. He said that later he met his wife in Kingston, and they had driven to Dorking. He did not own a brown corduroy jacket, such as had been described, and he did not wear spectacles.
      He had been in police custody between 28th July and 9th August on another matter. He said that his solicitor had advised him to make no comment in the  interview to which we have referred because the police would not disclose to the defence precisely where the fingerprints had been found, though they did disclose that the appellant's prints had been found in Mrs. Tate's house. The appellant said, before the jury, that he had accepted that advice, that is to say to make no comment. He said furthermore, in evidence, that he had been in Mrs. Tate's house two or three weeks before 28th July, when his car broke down, and he had knocked on a number of doors asking to borrow jump leads. He had obtained assistance elsewhere, but, in search of that assistance, he had gone into Mrs. Tate's house and must have touched the door from the inside; but he had not closed the door. In support of his alibi Shaun Lennon, who the appellant said he had been with on the morning of 28th July and who had known the appellant for 5 years, gave evidence that he had met the appellant in a cafe in Chelsea, in order for repayment of a loan to be made.
      A Mrs. Reynolds, the daughter of a neighbour of Mrs. Tate, who did not know the appellant, recalled visiting her mother on some occasion not during Wimbledon, between June and August and, while she was there, a man had called at the door of her mother's house asking for jump leads and she had offered the use  of her car, a feature to which the appellant himself had referred when he gave evidence. Indeed the man, to her knowledge, had succeeded in starting his car. There was evidence from her parents which supported their daughter's account. Indeed, Mrs. Reynolds' mother said that the appellant's face looked familiar to her.
      In his submissions to this Court, Mr. Fitzgibbon, who represented the appellant at the trial, bases his primary attack on the safety of the conviction on the way in which the judge dealt with the question of inferences being drawn from the appellant's failure, in interview, to mention facts namely that he had an alibi and his explanation for the fingerprints.
      Section 34 of the Criminal Justice and Public Order Act 1994, the terms of which it is unnecessary to read, provide for the jury to draw inferences from silence, in appropriate cases.
      Mr. Fitzgibbon submits that the judge erred in rejecting the defence application that he should hear evidence and submissions as to the admissibility of the fact that the appellant had made no comment in his interviews and had not disclosed these facts. That submission, sought to be made, supported by evidence, in the absence of the jury, the judge indicated he would not hear. The application was made on the basis that the  judge, in the light of such evidence as was called, would be invited to rule, as a matter of law, that there was no material on which the jury could properly be invited to draw inferences adverse to the defendant from his silence.
      The learned judge said this, at page 12 of the transcript:
"In order to form a judgment as to whether silence when asked questions by the police was reasonable in the circumstances of this case, the jury will need to know not only the fact that the advice was given ‑ and they will come to that conclusion by whatever evidence is called ‑ but they will also need to know, I would have thought, the reasons which the solicitor gave to the defendant. That seems to me will mean that the defendant, if he wishes to assert that it was reasonable for him to keep his defence in reserve, would have to waive privilege and call his solicitor.
 
    The jury has to decide whether the defendant had good reason for making no comment, not to decide whether the solicitor had good reason for giving the advice that he gave.
 
    As I say, before speeches and before summing‑up, I shall ask you both for your assistance on how I am to direct the jury. I thought it right to mention this matter at this stage before Mr. Fitzgibbon called any evidence." 
    There was then a further submission, in relation to adducing evidence from the defendant's solicitor, before the judge, in the absence of the jury, and the judge said this at page 13D:
"The answer is no, I am not prepared to do that."
There was then reference to a decision of this Court. By  reference to submissions of counsel, Mr. Fitzgibbon said, at page 14D:
"But, in my respectful submission, the point is different, because I am not asking you to decide it on my submissions but on evidence that you would hear.
 
THE JUDGE: I appreciate that, but it seemed to me that what you were saying was this. Because there are matters that the defendant might find embarrassing to air before the jury, they should be aired on the voire dire.
 
MR FITZGIBBON:  I would not adopt the word embarrassing.
 
THE JUDGE: No, I agree, it may not be appropriate, it was the first word that came into my mind. Matters ‑ to use your expression ‑ which the jury may find irrelevant. I think was what you said.
 
MR FITZGIBBON:  Yes.
 
THE JUDGE:  Therefore the matter should be dealt with by me on the voire dire, and I have said I do not agree." 
      In relation to that, Mr. Fitzgibbon submits that there are cases where it is appropriate for the judge to rule, in the light of evidence heard on the voire dire, as to whether or not there is material to go before the jury from which they can draw inferences under section 34, and the judge was wrong in apparently reaching the conclusion that such a course is never appropriate.
      Mr. Fitzgibbon invites the attention of the Court first to a passage in the judgment of the Lord Chief Justice, Lord Bingham of Cornhill, in R v. Argent (Court of Appeal transcript, 16th December 1996) at page 7A where the following appears: 
"We can readily accept that there will be some situations in which a judge should rule against the admissibility of evidence such as this. For example (and only by way of example), the judge might so rule in the case of an unlawful arrest where a breach of the Codes had occurred, or if the situation were one in which a jury properly directed could not properly draw an inference adverse to a defendant. Again such a situation might arise if, in application of section 78, the judge concluded that the prejudicial value of evidence outweighed any probative effect it might reasonably have. However, save in a case of such a kind the proper course in our judgment is ordinarily for a trial judge to allow evidence to be given and direct a jury carefully concerning the drawing of inferences." 
      There is a passage in the judgment of Stuart‑ Smith L.J., giving the judgment of this Court, in R v. Condron (Court of Appeal transcript, 17th October 1996) which is to similar effect and includes this at page  19G:
"If the objection is simply that the jury should not be invited to draw any adverse inference it will seldom be appropriate to invite the judge to rule on this before the conclusion of all the evidence." 
Those authorities, submits Mr. Fitzgibbon, rightly , demonstrate that, in exceptional circumstances, a judge should rule, having heard evidence on the voire dire, as to whether or not inferences are properly capable of being drawn, and as to the evidence which should go to the jury in support of the drawing of such inferences.
      Mr. Fitzgibbon submits that exceptional circumstances arise in the present case. He accepts that, if the judge had heard evidence on the voire dire,  from the solicitor, whom it was contemplated would be called, and from the defendant, if he were called, privilege would have been waived so that the judge would have heard what passed between the solicitor and the defendant before the solicitor gave the advice on which the defendant relied. He, Mr. Fitzgibbon, concedes that anything emerging on the voire dire could, if the matter had then proceeded before the jury, without the contested evidence being excluded, have been canvassed again before the jury. In the present case, what happened was that, before the jury, the solicitor did not give evidence, but the defendant did, in the course of which privilege was waived.  He was cross‑examined in relation to his admitted failure to tell his solicitor on the day of his arrest about his alibi. We are told that it is the appellant's personal recollection that he was also questioned about his failure to tell his solicitor what his explanation was for the fingerprints on the door, on the day of his arrest. But neither counsel has any recollection of that being canvassed before the jury.
      In that context, as we say, Mr. Fitzgibbon submits that there are two exceptional circumstances in this case on the basis of which, first, the judge should have held a voire dire, and heard evidence in the absence of  the jury, and secondly, having heard that evidence, should and would have ruled that, the material from which inferences were sought to be drawn should not go before the jury in such a form as to enable inferences adverse to the appellant to be drawn.
      Those exceptional circumstances, submitted
Mr. Fitzgibbon, are, first, the fact that the appellant at the time of his arrest was a heroin addict, in a state of withdrawal, and secondly, that the police's decision not to tell the defendant or his solicitor where precisely in the house the fingerprints had been found was such as to render reasonable the advice by the solicitor that the defendant should not give evidence.
      Mr. Fitzgibbon submits that such a reason by the police officer was a bad and inadequate reason and the judge should so have ruled. In our judgment, neither of the features to which Mr. Fitzgibbon draws attention was an exceptional circumstance. If the fact that an accused person was a heroin addict, in a state of withdrawal, were of itself a reason for not providing information relevant to his defence that, as it seems to us, would be to drive a coach and horses through the Act.
      So far as the police attitude to the fingerprints is concerned, it seems to us that the reasonableness or otherwise of the police approach was preeminently a  matter for the jury to consider, when deciding the wider question of the reasonableness or otherwise of the defendant's failure to disclose material matters.
      The consequence is this.  Although the learned judge, as we have indicated, was wrong to work on the assumption that in no circumstances would it be appropriate for a judge to hold a voire dire, we are very far from being persuaded that he was in this case wrong to decline to hold a voire dire. In any event, even on the assumption that he should have held a voire dire, and had then heard the evidence in relation to the two matters said by Mr. Fitzgibbon to be exceptional, in our judgment it is inevitable that he would have ruled that neither of them, separately or together, was a reason for precluding the jury from hearing the evidence which Mr. Fitzgibbon sought to exclude. In our judgment, therefore, it follows that there can be no adverse impact upon the safety of this conviction by the course of events follwed in relation to the submissions made in relation to section 34.
      Mr. Fitzgibbon's next submission is that the judge failed adequately to direct the jury as to the inferences which they might draw from the evidence which they heard. It is to be noted that, at pages 18 and 19 of the summing‑up, in a passage which it is unnecessary  to read, the learned judge directed the jury impeccably, in accordance with the five points to which Lord Taylor C.J. drew attention in R v. Cowan (1996) 1 Cr.App.R. 1, that is to say as to the correct approach by the jury before they could draw inferences adverse to the accused from his failure to mention material facts.
      Mr. Fitzgibbon submits that there was an element of unbalance in the summing‑up, in particular, in relation to the sixth point identified by Lord Bingham of Cornhill C.J. in (R v. Argent, Court of Appeal transcript 16th December 1996.  In relation to the breadth of the expression in section 34 "all the circumstances" the Lord Chief Justice said the court should not construe the expression restrictively. The Lord Chief Justice there identified at page 10B of the transcript, many and varied matters which are material when considering all the circumstances.
      It is to be observed that at page 30D the learned judge said this:
"Mr. Kavanagh tells you that he did not answer questions because he had been advised not to because he had not been told whereabouts his fingerprints had been found in 64 Bathgate Road. Does that mean he could not reasonably have been expected to mention his whereabouts on 28th July?  Does that mean he could not reasonably have been expected to mention his innocent visit to 64 Bathgate Road." 
 
 Mr. Fitzgibbon is critical of that passage on the basis that it poses questions rather than gives directions. At page 33B the judge again recited the evidence of the defendant on this aspect of the matter:
"I spoke to a solicitor before the interview. I was advised to make no comment in the interview from the offset. The police wouldn't say where my fingerprints had been found. I accepted that advice." 
In our judgment, when the whole of the summing‑up is read, in particular the passages which we have there identified, there is no sustainable argument that the judge's directions in relation to inferences were other than appropriate and adequate.
      Mr. Fitzgibbon had a subsidiary submission that it would be, as he put it, 'unfair to apply section 34 fully when an alibi has been disclosed'. The judge should have said something about the alibi notice having been served. In our judgment, there is no dichotomy between the provisions of section 34 and the provisions in s.11 of the Criminal Justice Act 1967 in relation to the serving of alibi notices. What is of significance, for consideration by the jury, is whether and when, in the sequence of events, as between arrest, charge and trial, the defendant mentions, if he does mention, matters relevant to his defence. It is for the judge to tailor his summing‑up to the circumstances of  the particular case, in order to deal with those matters. We see no ground for criticising the judge's summing‑up in this respect.
      Mr. Fitzgibbon's third submission is that the judge should have mentioned, more than in passing, the presence of an unexplained fingerprint on a sugar bowl said to have been discarded by the robber, and that witnesses on an identification parade not only did not pick out the appellant but saw similarities between the robber and others innocently on the parade. Therefore, submits Mr. Fitzgibbon, the summing‑up was unfairly balanced in failing to stress these matters.
      It is to be noted that both of these matters were set out in written admissions, the jury had those written admissions before them at page 31D, in the course of his summing‑up, the judge drew the jury's attention to those admissions and said:
"I am not going to insult your intelligence by reading them out to you. You have them. They have been read to you. You can read them and should read them again when you retire to consider your verdict." 
This ground of complaint is completely unarguable.
      Mr. Fitzgibbon's fourth submission is that in summing‑up the evidence in relation to the fibres, the judge should have referred to the evidence that, if a fibre had stayed on the appellant's shoe from the date  of the robbery, it was equally likely to have been there longer, that is to say embracing the period when he said he had earlier been innocently in Mrs. Tate's house.
      At page 24C of the summing‑up, the judge summarised the scientific evidence in this way:
"...fibres found on Mr. Kavanagh's shoe provide moderate support for the assertion that Kavanagh's shoe had been associated with the carpet." 
No suggestion was made by the judge, in the course of his summing‑up, that the fibre evidence in any way pointed to the date on which the appellant's shoe had been in contact with Mrs. Tate's carpet, if indeed it had. There can be no substance in this complaint.
      The fifth submission by Mr. Fitzgibbon is that prosecuting counsel in his final speech made a comment, (namely that if the appellant had visited Mrs. Tate's house on an earlier occasion, that could have been because he was reconnoitring for the robbery) which was
"capable of being unfair and went a little too far". It may be that, not having put that suggestion to any witness in the course of cross‑examination, it would have been better had prosecuting counsel not made that comment in his final speech. However, immediately after his speech, Mr. Fitzgibbon made his speech, and he tells this Court, and we accept, that he dealt with that comment in his speech, albeit briefly, in accordance  with the judge's suggestion that the matter should be dealt with briefly.
      The complaint is that the judge ought to have dealt with the matter further in the course of his summing‑up. We do not accept that. It seems to us that, in all the circumstances, the comment was best forgotten.  For the judge to have highlighted it again in order to deal with it would, as it seems to us, have served no useful purpose. In any event, Mr. Fitzgibbon does not suggest that this ground in itself affords any basis for regarding this conviction as unsafe. In our judgment, there are no grounds for regarding this conviction as unsafe and accordingly the appeal against conviction is dismissed.
      We turn to the sentence. In passing sentence the learned judge said that the appellant had shown no remorse for the way in which he had treated his victim. He had selected an elderly victim, who had lived alone. He had had a knife with him, although it had not been used and had indeed been left behind at the scene. He was on bail at the time of the offence for another matter. The judge also referred to the fact that the appellant had a bad criminal record, as indeed he does, having been, among other occasions, convicted in 1986 of robbery, involving the use of firearms, for which he was  sentenced to 4 years' imprisonment, and a further offence of robbery, in 1992, for which he was sentenced to a total of 4 years' imprisonment, from which he was released in November 1994, that is to say only some 7 or 8 months prior to the commission of this offence. Clearly, this offence called, particularly after a trial, for a long term of imprisonment.
      Mr. Fitzgibbon, however, draws the Court's attention to a number of authorities, including
R v. O'Driscoll 8 Cr.App.R. (S.) 121, R v. Doherty 8 Cr.App.R.(S.) 493, R v. O'Callagahan 9 Cr.App.R.(S.) 58 and R v. Clark 16 Cr.App.R. 546. He submits that a sentence of 14 years, for this offence, grave and frightening though it was, was somewhat out of line with the scale of sentences which those authorities indicate, particularly bearing in mind that the appellant was on his own, no weapon and no great violence was used and there was no sophisticated planning.  With a degree of hesitation, this Court accepts that submission. Accordingly, the sentence of 14 years will be quashed and there will be substituted for it a sentence of 12 years' imprisonment. To that extent this appeal against sentence is allowed.