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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lunkulu & Ors v R. [2015] EWCA Crim 1350 (07 August 2015) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/1350.html Cite as: [2015] EWCA Crim 1350 |
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201401599 B1 and 201401581 B1 |
ON APPEAL FROM The Central Criminal Court
HHJ Morris QC
T20137100
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
THE HONOURABLE MR. JUSTICE STEWART
and
THE HONOURABLE MR. JUSTICE EDIS
____________________
| Blaize Lunkulu, Christian Barabutu, Ndombasi Makusu, Yusef Arslan |
Appellants |
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| - and - |
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| Regina |
Respondent |
____________________
Copies of this transcript are available from:
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Tel No: 020 7414 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Blunt QC (instructed by Virdee Solicitors) for Barabutu
Mr. Lakha QC (instructed by Stokoe Partnership Solicitors) for Makusu
Mr. Bromley-Martin QC and Mr. James Elvidge (instructed by Joseph Hill and Company) for Arlsan
Mr. Brown QC and Mr Jones (instructed by CPS Appeals Unit ) for the Crown
Hearing dates : 12 March 2015
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Crown Copyright ©
Lord Justice Fulford :
The Background
The Facts
The History
The Defendants
The Shooting
The Prosecution Case
The Defence Case for Lunkulu
The Defence Case for Barabutu
The Defence Case for Makusu
The Defence Case for Arslan
The Grounds of Appeal against Conviction
The Ground of Appeal Common to all Accused
90. On the basis of those authorities, it is clear that when a defendant has said little or nothing in interview and has elected not to give or call evidence, ordinarily the limit of the judge's duty is simply to remind the jury of "such assistance, if any, as (defence) counsel had been able to extract from the Crown's witnesses in cross-examination" and any "significant points made in defence counsel's speech". In this context, it is to be stressed that in order to present a defence to the charges the defendant is not compelled to give or to call evidence; instead, he is entitled to rely on evidence presented by the prosecution or by his co-accused when advancing arguments for the jury's consideration as to whether the prosecution has established his guilt. The rehearsal of this material by the judge does not necessarily have to be extensive or detailed – indeed, frequently it will be sufficient merely to identify the central submissions and the evidence that underpins them – but the judge must generally ensure that the jury receives a coherent rehearsal of the main arguments that are being advanced by the accused.
91. The timing and the form of this summary will depend on the circumstances of the case – most particularly, whether the relevant evidence needs to be gathered together in one section of the summing up or whether it is preferable to refer to it incrementally as the judge summarises the evidence in the case as a whole – but in either case the judge ought to explain the key submissions of the accused in support of his defence at a convenient juncture during the summing up.
In general, when a cross-examination is being conducted by competent counsel a judge should not intervene, save to clarify matters he does not understand or thinks the jury may not understand. If he wishes to ask questions about matters that have not been touched upon it is generally better to wait until the end of the examination or cross-examination. This is no doubt a counsel of perfection and a judge should not be criticised for occasional transgressions, still less can it be said in such cases that there is any irregularity in the conduct of the trial or that the verdict is unsafe or unsatisfactory. But there may come a time, depending on the nature and frequency of the interruptions, that a reviewing court is of the opinion that defence counsel was so hampered in the way he properly wished to conduct the cross-examination that the judge's conduct amounts to a material irregularity.
Lunkulu
Secondary participation
Cihan Ulgar and the flight of the gunman
The Gait
The Nike Air Max 90s
The gunman's appearance
The failure to answer questions in interview
The "6482" number
The Defence Case
Adverse judicial remarks
He said Arslan had previously arranged cabs for him and was known for getting cabs.
Makusu
The 482, 495 and 705 telephone numbers
The fourth matter that Mr Lakha wished me to correct arose out of my misunderstanding of what Mr Makusu's case was on the use of the 705 phone. I thought it was accepted by the defence that he had used that phone and continued to use it until it ceased to be used on 27 September, then used the 495 phone until he was arrested and the Crown's case is that he then used the 482 after his release.
That, I accept, was a mistake on my part. I now understand that it was Mr Lakha's submission that Makusu had ceased using the 705 phone by early September and had thereafter used the 495 phone and that on 29 September the evidence suggested that three different people were using the different phones, the 705, 495 and 482 phones.
Nathaniel Scott
We know that Natty Scott had not been seen there by the police before 10 September 2011, almost a year after the shooting. However, his former girlfriend had lived on the estate in April 2008, 18 months before the shooting. And agreed fact 102 is that Scott was alleged to have assaulted her there. There is however, no evidence that he visited the estate between then and October 2009.
This is argued to be wrong, on the basis of "the evidence of the various stops straddling as they do the period before and after this event".
Speculation
Fifthly, in respect of the calling of the 297 number by the 482 number - that is in your Exhibit 8, members of the jury, if I can ask you to turn to that now, calls 254 and 256 - you will remember this is the call to the 297 number which was no longer on the network and hadn't been on the network since 20 September. The question was why, Mr Lakha asked, would Mr Makusu have called the old number for Yasmine which didn't then appear then still to be in use? One of the possible explanations for that which I raised for you, and it is a question of inference from the evidence, members of the jury, I thought at the time was that if that number had been stored in the old 482 phone when it was still being used by Mr Makusu, it might still have been there if he happened to come across this phone and continued to use it thereafter.
Mr Lakha has submitted that would be speculation and although, as I have indicated, you are entitled to draw inferences from the facts, you must not speculate as to why something happened and as there is no evidence of what was in the address book of the 492 phone which has never been found, I direct you that you should treat this as speculation and you should ignore it for the purpose of your deliberations.
The final matter raised by Mr. Lakha on behalf of Mr. Makusu was in respect of that call, apparently made by Mr. Makusu on 2 October, captured on the CCTV footage outside the pound shop at 19.10.57 and the possibility of this being a call made to somebody which didn't get through, you remember, and I raised the possibility as a possible explanation that this was attributable to a call which hadn't got through and therefore might have been shown as a missed call on the intended recipient's phone. I am told that if Mr. Makusu had then made that call which was not answered, there is a possibility at the very least, if not a likelihood, that this would have been shown on the phone data as there are a number of calls of nil duration which might well have gone to voicemail and you should therefore disregard this explanation for the call as speculation in the circumstances.
Material Issues
Arslan
Ground 1
Ground 2
Ground 3
Ground 4
The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Evidence of Arslan's Previous Convictions
We have heard evidence that on 28 September 2010 the defendant (Arslan) was convicted of attempting to murder Hamit Koban and Nasir Demir on 30 September 2009. The offence is set out in paragraph 20 of the schedule, behind tab 2 of your jury bundle.
His conviction of those offences is evidence that he committed them, unless he proves that he did not do so. He has not sought to prove that. You are entitled to take these offences into account as I set out below. It is for you to deicide whether these offences were to do with the facts of the present offence, as showing his involvement in the feud between the two gangs in general and in this offence in particular. If they were, the prosecution submit that his commission of these offences shows that he had a leading position within the Tottenham Turks and makes it more likely that he was a party to the commission of this murder. If they were not to do with the facts of this offence, they amount to evidence of his bad character, which you are entitled to take into account as I set out below.
On 28 September 2010 Arslan was also convicted of possession on 9 December 2009 of a firearm and ammunition with intent to endanger life. This is also evidence of his bad character which you are entitled to take into account as I set out below.
In the old days juries were usually not told about a defendant's bad character. This was because of the fear that such information would prejudice the jury against him and that they would give it more weight than it deserved. Today such evidence is often admitted, because a jury understandably want to know whether what the defendant is alleged to have done is out of character or whether he has behaved in a similar way on another occasion.
Of course, a defendant's bad character is only background; you must not automatically assume he is guilty just because he has a bad character. It does not tell you whether he has committed the offences with which he is charged in this case, what really matters is the evidence you have heard in relation to that offence. So be careful not to be unfairly prejudiced by what you have heard about his bad character.
How may you use this evidence of bad character?
You are entitled to take it into account if you are sure that it shows that on 5 October 2009 he had access to loaded firearms and/or makes it more likely that he was a party to the commission of this murder.
References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—
(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.
14. In our judgment, however, the words of the statute "has to deal with" are words of prima facie broad application, albeit constituting a phrase that has to be construed in the overall context of the bad character provisions of the 2003 Act. Thus the breadth of the words are clearly limited by the context for instance of section 101(1)(c) 's reference to important explanatory evidence, and gateway (d)'s more general reference to important matter in issue, which taken together with section 103 relates to propensity and previous convictions. In our judgment, it would be a sufficient working model of these words if one said that they either clearly encompass evidence relating to the alleged facts of an offence which would have been admissible under the common law outside the context of bad character or propensity, even before the Act, or alternatively as embracing anything directly relevant to the offence charged, provided at any rate they were reasonably contemporaneous with and closely associated with its alleged facts (see for instance the reference to R v Machado noted towards the end of Archbold 13–6).
(iii) Was the evidence "to do with the alleged facts of the offence"?
21. Section 98 of the CJA 2003 excludes from the definition of bad character, misconduct on the part of a defendant which has "to do with the alleged facts of the offence with which the defendant is charged". The contention of the prosecution was that the evidence was "to do" with the offences with which the appellant was charged. The consequence of that argument was that, if the evidence was within the exclusion, then it was not for the purposes of the statutory provisions evidence of bad character and, as this court said in Edwards and Rowlands (at [1(i)]) (as qualified in R. v Watson [2006] EWCA Crim 2308 at [19]), the evidence "may be admissible without more ado".
22. There is very little authority on the extent of this exclusion. In R. v Machado [2006] EWCA Crim 837, the defendant charged with robbing a victim wished to use evidence that the victim had taken an ecstasy tablet shortly before the attack and immediately before the attack had offered to supply him drugs. This court held that the matters were in effect contemporaneous and so closely connected with the alleged facts of the offence, and so were "to do" with the facts of the offence. In Edwards and Rowlands, this court observed at [23] that the term was widely drawn and wide enough to cover the finding of a pistol cartridge at the home of one of the defendants when it was searched in connection with the drugs offences with which the defendants were charged. In R. v McKintosh [2006] EWCA Crim 193, this court held that a matter immediately following the commission of the offence was "to do with the offence". In Watson, an assault committed was held to do with the charge of rape committed upon the same person later in the day. Professor J.R. Spencer, Q.C. in his useful monograph, Evidence of Bad Character at para.2.23 suggested that it clearly covered acts which the defendant committed at the same time and place as the main offence and presumably covered acts by way of preparation for the main offence and an earlier criminal act which was the reason for the main crime.
23 The basis on which it was contended before us by the prosecution that the evidence which they sought to adduce was "to do" with the facts of the alleged offence was that it was evidence which was central to the case in that it related to proving that the appellant was the person who had committed the offences charged in the various counts. We do not accede to that submission. As counsel for the prosecution accepted, if his submission was right, then in any case, where the identity of the defendant was in issue (including, by way of example, cases of sexual misconduct), the prosecution would be able to rely on this exclusion to adduce evidence of misconduct on other occasions which helped to prove identity. It seems to us that the exclusion must be related to evidence where there is some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seek to adduce. In the commentary in the Criminal Law Review to R. v T [2006] EWCA Crim 2006; [2007] 1 Cr. App. R. 4 (p.43); [2007] Crim. L.R. 165, it was argued that the court in Machado and McKintosh had taken too narrow a view of s.98 thereby permitting prejudicial evidence to be admitted on the threshold test of relevance alone with no gateway having to be satisfied. We do not agree—the application of s.98 is a fact-specific exercise involving the interpretation of ordinary words.
24. We respectfully agree with Professor J.R. Spencer, Q.C. Evidence of Bad Character at para.2.23, where he suggests that there is a potential overlap between evidence that has to do with the alleged facts of the offence and evidence that might be admitted through one of the gateways in s.101(1) . As he observes in relation to the example he took of prior misconduct being the reason for the commission of the offence, such evidence could be admitted either as "to do" with the offence or as important explanatory evidence under s.101(1)(c) :
"In practice nothing of any legal significance depends on which of these two routes it is by which the evidence comes in."
12. In our judgment, the evidence of the three incidents was evidence that was alleged to do with the evidence of the murder in question. The words of the statute are straightforward, and clearly apply to evidence of incidents alleged to have created the motive for the index offence. Indeed, where the evidence is reasonably relied upon for motive, it would be irrational to introduce a temporal requirement. Take these examples. A man is wounded in a shooting. He is hospitalised for six months. On discharge, he is alleged to have shot the man who is alleged to have been his attacker. In another case, the reprisal is the day after the first attack. In the second case, the evidence of the first attack is not bad character for the purposes of s.98, in the first it is.
13. In our judgment, the judge's decision was clearly right, and we pay tribute to his clear and cogent ruling. Incidents (1) and (3) gave rise to the alleged motive for the murder that was the subject of the indictment. Incident [(2)] […] was part of the pattern: as was put by Mr Price, part of a series of "tit for tat" incidents. Each of them had to do with the others, as had the index offence. They were not merely relevant: they were intrinsic to the prosecution's case.
14 We add that, given these four incidents took place within a period of three months, if there were a temporal requirement in s.98(a), we would have held it to be satisfied.
Hamit Coban and Nasir Demir were driving when the road was blocked by another car. A gunman came from the passenger seat of this car and opened fire on them, shooting Demir in the arm.
Proof by formal admission.
(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.
(2)An admission under this section—
(a)may be made before or at the proceedings;
(b)if made otherwise than in court, shall be in writing;
(c)if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;
(d)if made on behalf of a defendant who is an individual, shall be made by his counsel or solicitor;
(3)An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial).
(4)An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.
9. Section 74(3) [Police and Criminal Evidence Act 1984] is uncomplicated and it means exactly what it says: once it is proved (whether by agreement or otherwise) that the defendant was and remains convicted of a criminal offence and assuming that evidence of that fact is admissible, the prosecution is not required, merely because the defendant denies guilt, to prove that the defendant was guilty of the offence, or to assist him to prove that he was not guilty, or indeed to call witnesses for either purpose. The evidential presumption is that the conviction truthfully reflects the fact that the defendant committed the offence. Equally, however, it is clear that the defendant cannot be prevented from seeking to demonstrate that he did not in fact commit the offence and, therefore, that the jury in the current trial should disregard the conviction. If so, it follows that he should be entitled to deploy all the ordinary processes of the court for this purpose, and in particular to adduce evidence that will enable him to prove, whether by cross-examination of prosecution witnesses or calling evidence of his own that he was not guilty and that the conviction was wrong. It also follows that if the defendant does adduce evidence to demonstrate that he is not guilty of the offence, it remains open to the Crown then to call evidence to rebut the denial.
The facts of that matter are set out in your schedule. Koban and Demir were driving when the road was blocked by another car, a gunman came from the passenger seat of his car and opened fire on them, shooting Demir in the arm and, as you know on 28 September 2010 Yusuf Arslan was convicted of those attempted murders.
As I told you in my legal directions, the prosecution are entitled to rely on the convictions for these offences, which in this case is agreed and is in your agreed facts No. 94, as evidence that Arslan committed them, that he was party to those offences. It is not necessary in order to prove the convictions for the prosecution to call either Koban or Demir, the two victims. If Mr. Arslan had wished to tell you anything further about these offences, he was entitled to do so in evidence. As you know he has chosen not to do so.
Ground 5
On 5th October 2009 I received a lot of calls as far as I remember as it was a few days after my brother Oktay was killed. I have been asked if I know a male by the name of Yusuf Arslan and DC Setter has shown me his photograph. I can confirm that I do know this man as he was a friend of my brothers. I don't know him very well but I have spoken to him on the phone previously.
I don't remember whether he called me on that day, but of the phone records say he did than he must have done. I don't remember what our conversation would have been about though. I am told that the calls were made in the evening around 10pm and then again at just after 11.35pm- this does not help jog my memory however.
I have been asked if I knew a male called Cem Duzgun I did not know him but I became aware of him after he had been shot and it was all over the news.
I have been running my cab firm Ambassador Cars in Holloway Road for about the last eight years-from about 2005, I didn't have any involvement in the running of the Pound Shop that used to be at 645 High Road, Tottenham but I did go there to see my brother Oktay as he was there most of the time. My appearance then would have been similar to the way I look now-i.e my hair would have been shaved.
I have been asked if Yusuf Arslan made any mention of Cem Duzgun or a shooting at the Clapton FC Social Club- I don't remember any mention of these things.
i. Generally speaking the prosecution must have at court all the witnesses whose statements have been served as witnesses on whom the prosecution intend to rely, if the defence want those witnesses to attend. In deciding which statements to serve, the prosecution have an unfettered discretion, but must normally disclose material statements not served.
ii. The prosecution enjoy a discretion whether to call, or tender, any witness they require to attend, but the discretion is not unfettered.
iii. The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial. The dictum of Lord Thankerton in Adel Muhammed El Dabbah v. Att.-Gen. for Palestine [1944] AC 156, PC (court will only interfere if prosecutor has been influenced by some oblique motive), does not mean that the court will only interfere if the prosecutor has acted out of malice; it means that the prosecutor must direct his mind to his overall duty of fairness, as a minister of justice. Were he not to do so, he would have been moved by a consideration not relevant to his proper task—in that sense, an oblique motive.
iv. The prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, they regard the witness's evidence as unworthy of belief. In most cases, the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution have discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say "incredible", then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called.
v. It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a witness has to say is at best marginal.
vi. The prosecutor is also the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one that is less favourable to the prosecution case than that of the others.
vii. A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the prosecution rely. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in their endeavour to destroy the Crown's own case. No sensible rule of justice could require such a stance to be taken.
The court added that these principles should not be regarded as a lexicon or rule book to cover all cases. There may be special situations that have not been adverted to, and in every case, it is important to emphasise, the judgment to be made is primarily that of the prosecutor, and, in general, the court will only interfere with it if he has gone wrong in principle.
Ground 6
Ground 7
Ground 8
Ground 9
Ground 10
Barabutu
Conclusion
The Grounds of Appeal against Sentence
The Sentences
The Sentencing Provisions
The Sentencing Remarks
The Single Judge
You accept that the starting point in this case (which involved the use of a firearm) was 30 years. I do not accept that the Judge was not entitled to take the view that there was a significant degree of planning or premeditation: that was accordingly an express aggravating factor under para.10(a) of Sch. 21. The Judge was well aware of the other circumstances, including your relatively young age. In my view it is not arguable that the minimum term of 28 years was either wrong in principle or manifestly excessive.
Arslan
Barabutu
Makusu
Decision
Conclusion