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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Solomon & Ors, R v [2016] EWCA Crim 95 (23 March 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/95.html Cite as: [2016] EWCA Crim 95 |
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ON APPEAL FROM Central Criminal Court
His Honour Judge Cooke QC
T20127207/20127128/T20127140/T20127108
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE COOKE
HIS HONOUR JUDGE RICHARD GRIFFITH-JONES
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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Regina |
Appellant |
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- and - |
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NATHANIEL SOLOMON CHRISTOPHER GABRIEL NATHAN DEACON AL DANIELS |
Respondent |
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Ian Bourne QC for Nathaniel Solomon
Stephen Kamlish QC for Christopher Gabriel
Kirsty Brimelow QC and Piers Marquis for Nathan Deacon
Non-Counsel for Al Daniels
Hearing date: 10th March 2016
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Crown Copyright ©
Lady Justice Rafferty:
Events leading up to the murder: Edwards House ("EH") 1 ("EH1")
Post-murder: Seizure of weapons
DNA
Arrest and interviews
Christopher Gabriel
Nathan Deacon
Nathaniel Solomon
Al Daniels
Grounds of Appeal
Our conclusion
"…You are a randomly selected jury…Incidentally it is right I should point this out at the beginning. Random means all sorts of things. In this case it's meant that we have entirely black defendants and I have not got a black person on the jury….I cannot interfere with random selection. If ever there is a point that means I have to stress fairness to you it is exactly like that isn't it? Fairness on the evidence. Nothing to do with stereotypes. Nothing to do with race. You try it fairly on the evidence."
Nothing was said about these comments. It was and remains agreed by all parties that it would have been better had the Judge not made them.
"Although it would have been better had the Judge not made the remarks without consulting counsel, there was no merit in the application that he should discharge the jury or recuse himself. The remarks were not racist and not reasonably capable of being perceived as racist. The judge initially acceded to the application to discharge the jury, despite the fact that he (correctly) regarded it as unmeritorious, because he erroneously believed a new jury could be empanelled without risk of undue delay. When it became apparent that that was not the case, he was bound to review and reverse his initial decision because of the serious risk of injustice to other defendants and of damage to the administration of justice by the risk of significant delay. The Judge's handling of the applications and of the trial did not involve bias against you, and would not have created an appearance of a risk of bias to any fair minded observer."
Gabriel Ground 5 the Judge should have withdrawn the case from the jury
Gabriel Ground 6, Tafari Deacon's Submission
"Grounds (5) and (6): No case. There was a sufficient circumstantial case to be left based on the cell-site evidence. The evidence was different in the case of Tafari Deacon. The acceptance of the submission in his case is entirely consistent with the rejection of yours, and not indicative of bias."
We agree.
Gabriel Ground 7
"If an allegation is made of rape, for example, and you cannot come to the conclusion whether or not it is made out because you have not seen all of the evidence in relation to that and all the rest of it, you have to put it to one side."
Mr Kamlish complained that the Judge was inviting the jury to disbelieve Miss Ali. We disagree. The Judge was plainly anxious to redress the balance in favour of Dawson after Miss Ali volunteered he had raped her.
"The bad character evidence of Dawson's assaults on Zainab Ali was admitted as important explanatory evidence. It was relevant and admissible for that and for the jury to assess the credibility of Ms Ali and Dawson. The Judge correctly directed the jury. It was not admitted, and was not admissible, as showing a propensity to murder, and the Judge was correct to make that clear to the jury on a number of occasions to avoid risk of serious prejudice to Dawson. The allegations of rape and assault on the child were volunteered by Ms Ali but the Judge correctly ruled that they should not be explored in cross examination and correctly warned the jury to ignore them so as to avoid potential prejudice to Dawson where they had not been explored in evidence. The Judge's careful balancing of the competing interests of the Defendants provides no evidence of bias, nor does his temperate explanation of why he (correctly) dealt with bad character in this way."
We agree.
Gabriel: Summing-Up (8) unduly favourable to Dawson and insufficiently to Gabriel.
"…I should remind you of a point made on behalf of Mr. Dawson and it amounts to this – my words, not Mr. Dean's – but [which] I think encapsulates the point: you would have to be stark staring mad if you were involved in the murder yourself to give your name in circumstances like that. That just does not make any sense, is Mr. Dein's point…The counterpoint is that [Dawson] is stark staring mad through the abuse of drugs"
The Judge was doing no more than putting both sides of the argument.
"the absolute opposite of an independent witness, is he not? He has an axe of his own to grind."
"There is no merit in any criticisms. The Judge adequately summarised the evidence for and against Dawson, and the evidence for and against you. Despite the fact that you neither answered questions nor gave evidence, he fairly summarised your case, as well as that of Dawson. He did not go beyond the bounds of permissible comment. The allegations that the Judge was "rude, offensive, biased and unjudicial" and that he "whipped himself up into almost a frenzy" are not borne out by the transcripts. He was defending the terms of his summing up against criticisms from your counsel which were themselves partial, selective and unjustified. He was entitled to feel and express displeasure at the way in which producing the unforeshadowed document on the morning of 15th May disrupted the trial process."
We agree.
Nathan Deacon
DNA
"Despite justifiable complaints about the late service of the material, you and your legal team had an adequate opportunity to address it with the assistance of Prof Krane. After hearing the evidence of Profs Krane and Balding on the voir dire, the Judge was entitled to treat the evidence as admissible in accordance with R v Reid & Reid [2010/11 Cr. App. R. 310 and R v Dlugosz, Pickering, MDS [2013] 1 Cr App R 32, for the reasons he gave in his detailed and carefully reasoned judgment."
We agree.
Submission of no case to answer
"Ground 2 Against the background of the evidence summarised in the Prosecution Note opposing the submission, there was a case to leave based on (i) your DNA on the side grips and hammer spur of the handgun; (ii) the cell-site evidence in relation to your participation in the Edwards House 2 visit; and (iii) the cell-site evidence of your association with other defendants after the murder. The Piano House cell and surveillance points you make merely go to the weight of the evidence as a whole which the jury had to consider."
We agree.
Inadequate summing-up of the defence
"It was not necessary for the Judge to remind the jury of every point made on your behalf in final speeches, nor of every aspect of the Agreed Facts. None of your criticisms is well founded or capable of affecting the safety of the conviction. The points articulated in ….the Respondent's Notice are well made."
We agree.
The summing-up was unduly favourable to Dawson
"There is no merit in any of your criticisms. The Judge adequately summed up the evidence and the case for and against Dawson in a way which does not arguably put in doubt the safety of your conviction."
Ex parte applications
"It is not appropriate to require the court at the permissions stage to review the PII material* unless there is good reason to believe that it has led to bias or of significant material having been wrongly withheld. There is no justifiable ground for alleging either. I have nevertheless reviewed the PII hearings and they cast no doubt on the safety of your conviction, either on their own or in conjunction with the delayed disclosure of the surveillance evidence and the Best One Shop footage."
DC Palmer
"The evidence of DC Palmer was correctly admitted as evidence against Dawson. It was not wholly exculpatory of Dawson; the detailed knowledge of the circumstances of the killing, taken together with Dawson's inconsistencies as to his sources of information, were capable of incriminating him in the murder. The Judge was right to refuse severance for the reasons he gave. The directions given to the jury ensured a fair trial."
We agree.
"Submission of no case to answer. There was cell-site evidence from which the jury could properly conclude that you travelled from the residence of Dawson (against whom there was a case to answer for murder) with Broderick, Solomon and Tafari Deacon (against whom there was a case to answer for arson) to the vicinity of where the car used in the murder was burnt out; and that you were present there with the others minutes before the car was set alight. Against the background of the evidence summarised in the Prosecution Note opposing the submission of no case to answer, that was sufficient to leave the case to the jury. The agreed note between the experts that your phone was using the Camberwell Bus Garage cell at least 500m away "by 04.31" reflected Mr Arkless's evidence that because it was a GPRS connection it indicated that the phone had connected to the mast at or before that time. The answers given by Mr Arkless in cross-examination (assuming the accuracy of defence counsel's note paragraph 10 of the submission of no case to answer) could properly have been interpreted by the jury as being to the same effect. In any event the jury could properly have concluded that the timing for the setting alight of the car derived from the M&A Autos footage was not secure."
We agree.
Severance
"Severance The judge was right to refuse for the reasons he gave. The evidence of involvement in the supply of drugs was inextricably linked to other aspects of the evidence, and any potential prejudice avoided by a suitable direction."
We agree.
"Failure adequately to sum up your case. This is no more than a repetition of Ground (1), based on the erroneous assertion that the unchallenged evidence was that your telephone was at least 500m away when the car had been set alight. The evidence, and the point, were adequately referred to in the summing up on 15 May 78 D-F and 16 May 32F-36G."
We agree.
"DNA After hearing the evidence of Profs Krane and Balding on the voir dire, the Judge was entitled to treat the evidence as admissible in accordance with R v Reid & Reid [2010/11 Cr. App. R. 310 and R v Dlugosz, Pickering, MDS [2013] 1 Cr App R 32, for the reasons he gave in his detailed and carefully reasoned judgment.
GSR The judge was right to treat the evidence as admissible under s.101(d). The jury would have been entitled to treat it as establishing previous possession of a shotgun and thus to make it more likely that it was you, rather than Sachia Clarke, who had custody of the guns in the cupboard at her flat, an important issue between you and the Crown as well as between you and her. It was not "propensity" evidence as envisaged in s. 103 or the authorities thereon. Its admission was not unduly prejudicial, and in any event it would have been admissible and admitted upon application by Sachia Clarke."
"On 28th June 2013, after the preparation of a pre-sentence report on the issue of dangerousness, Daniels was sentenced to life imprisonment (as a dangerous offender) with a minimum term of 14 years. The Judge described the defendant's offending as being "extremely close to the murder and, in my judgment, as bad a case of possession of firearms…as it is possible to imagine." The Applicant had acted as "a street gang armourer"
R v Avis [1998] 1 Cr App R 420, Lord Bingham referred to the "conflicts which occur between competing criminal gangs, often related to the supply of drugs, the use and possession of firearms provoking an escalating spiral of violence." For offences (as here) contrary to section 16 of the Firearms Act, "terms at or approaching the maximum may in a contested case be appropriate." The sentence was entirely justified."
We agree.