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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Saunders v R [2012] EWCA Crim 1185 (01 June 2012) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2012/1185.html Cite as: [2012] EWCA Crim 1185

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE THORNTON QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/06/2012

Lord Justice Stanley Burnton:

Introduction

1. On 14 July 2011 in the Central Criminal Court before the Recorder of London His Honour Judge Beaumont QC, James Saunders was convicted of the murder of Moses Devall. He was sentenced to imprisonment for life, and the period of 20 years was specified as the minimum term under section 269(2) Criminal Justice Act 2003. He was also sentenced to 24 months imprisonment concurrent for an offence of inflicting grievous bodily harm, having been convicted of that offence on 1 February 2011. He appeals against his conviction for murder with leave of the single judge.
2. The sole ground of appeal relates to the hearsay evidence that was the only evidence that it was the appellant who murdered Moses Devall.

The undisputed facts

3. On 30 October 2009, Moses Devall was involved in a fight with the appellant's brother,
4. That night, Sarah Schock, the partner of Moses Devall, was at the Priory Tavern in Orpington with her daughter, Sarah Girl, and her friends, Wendy Roberts and Laura Phillips. Sarah Schock was in a fight with the appellant's sister, Laura Coates. She was attacked by the appellant, his brother John Saunders, his sister Charmaine Coates and her husband Levi Coates. All of them, other than the appellant, had pleaded guilty to a section 20 assault on Sarah Schock at an earlier trial. The appellant was subsequently also convicted of participation in that assault.
5. As a result of the injuries she suffered, Sarah Schock was taken to hospital. She wanted to contact her husband Moses Devall. Wendy Roberts got through to a neighbour, Jane Buckley, and asked her to take her, Jane Buckley's, phone to Moses, who was at their home at 26 Swallowtail Close. Jane did so. Wendy gave her phone to Sarah and she spoke to Moses. She told him that she was injured and was at the hospital. The call was timed at 00.24.
6. While Sarah Schock was on the telephone to Moses, he was stabbed. A telephone call to emergency services was timed at 00.29. It overlapped with the call between Moses and Sarah. Moses died from his wound.
7. The prosecution case was that it was the appellant who stabbed Moses.

The hearsay

8. As mentioned above, the only significant evidence that it was the appellant who stabbed Moses was hearsay. The evidence may conveniently be divided into two: first, what Moses was alleged to have said to Sarah on the telephone immediately after the stabbing; and secondly, the statements that it was alleged that Jane Buckley made to Wendy Roberts and Betsy Devall, Moses' mother.

(a) The evidence of Moses' dying statement

9. Sarah Schock said that while she was on the phone to Moses from the hospital he made an "aah" sound. She asked if he was OK. He said "No, I've just been stabbed." She asked who by and he said "Jimmy Saunders". Her daughter, Sarah Girl, said that she had been with her mother when the telephone call took place, and that she had heard Moses say that he had been stabbed by the appellant.

(b) The evidence of what Jane Buckley saw

10. Wendy Roberts' evidence was that on Thursday 5 November she and Jane Buckley met at Wendy's house. Jane gave details of what she had seen the previous Saturday. She was outside Moses' gates holding her little boy. The appellant appeared from nowhere and struck Moses who was inside the gates and on the phone. She thought he had been punched but then saw him stagger back and fall into the door. The appellant said, "What did you beat my brother for?" The appellant was with a girl who told him to run. Henry (Devall) came out of Moses' kitchen and said he had been stabbed. Dave Hook was also in his house at the time. Wendy said she had heard Jane shouting out the postcode. Jane was very upset whilst giving this account and told Wendy that she was not going to tell the police. Wendy tried to persuade her many times but she would not do so. According to Wendy, Jane, a single mother of two children, was scared of the Saunders family, who, like her and the Devall family, were members of the local Traveller community.
11. Betsy Devall's evidence was that having seen Sarah at the hospital she went to get Moses to take him to the hospital because she thought from his earlier phone call to her that he had been drinking and would not drive. She got to 26 Swallowtail Close and parked her van. There were a few people, including Jane, about. Two paramedics were tending to Moses in the hallway. Betsy collapsed and sat on the kerb. Jane Buckley came over and cuddled her. She said, "Aunty Betsy, I saw all what happened. Jimmy Saunders did it. He came from the side of the wall to the front gate and did it like that." She demonstrated a stabbing action, but said she thought at first it was only a punch. Jane said that the appellant had said "That's for kicking my brother up and down." A girl in a pink top was with him and she told him to run. Jane was in a state of shock and a bit traumatised. After 5 or 10 minutes someone came and gave Betsy a cup of tea and a cigarette. Then she went home. Betsy Devall spoke later to Jane Buckley about why she wouldn't tell the police what she had seen. Miss Buckley's response was that she would love to do right by Moses but she had two little boys and she was on her own with no husband, making it clear that she would not speak to the police because she was in fear.

The judge's hearsay ruling

12. At the beginning of the trial, before any evidence had been called, the prosecution applied to adduce both Moses' accusation and the Jane Buckley hearsay. The application in respect of Moses' accusation of the appellant was based on the common law principle described in Ratten v The Queen [1972] AC 378, 391:

"hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused."

That principle has been preserved and codified by section 118 of the Criminal Justice Act 2003:

"(1) The following rules of law are preserved.

Res gestae

Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—

(a) the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,

…"

13. The appellant was represented at the trial by Mr Grunwald QC and Ms R Darby. Mr Grunwald accepted that Moses' statement, if he made it, was admissible evidence, but that there were such doubts as to whether or not he had made it that the judge should exclude the evidence under the power conferred by section 78 of the Police and Criminal Evidence Act 1984. It was submitted that there were strong doubts as to whether Moses had accused the appellant. Sarah Schock had not mentioned it to the staff of the hospital where, at the time of receiving the phone call, Sarah was awaiting examination for the injuries that she had sustained. Nor did she tell the police who saw her at that hospital.
14. The prosecution sought to adduce the Jane Buckley evidence under section 114(2)(d) of the Criminal Justice Act 2003. The judge knew that Jane Buckley denied having seen the stabbing or having said what was attributed to her, since she had given evidence to that effect at an earlier trial. The judge went through the mandatory considerations listed under section 114(2) of the 2003 Act. For present purposes, it is sufficient to set out the following extract from his ruling:

"I am satisfied that both the accounts that I have summarised, assuming them to be true, have a considerable probative value in relation to a matter in issue in the proceedings; namely proof that it was the defendant who killed Moses Devall, and that it has value for the understanding of other evidence in the case, namely the dying declaration by Moses Devall.

Thus subsections (a) and (c) are met.

I am also satisfied that even if no other eye witness account exists 'other evidence' can be given about how the statements came to be made, with both sides relying on the chronology that was rehearsed before me in terms of the contact by the witnesses concerned with the police, and the content of their logs. Thus subsection (b) is met.

As to (e) and (f), the so-called reliability subparagraphs, Mr Jafferjee has satisfied me in the light of other free-standing evidence, some of which is derived from telephone evidence, some from the statement of Danielle White, as well as from Jane Buckley's acceptance in the evidence that she has given thus far as to the events, that is to say, the surrounding circumstances of the meetings in which Betsy Devall and Wendy Roberts describe seeing and speaking to Jane Buckley; that the makers and the making of the hearsay statements are reliable."

15. The judge then turned to paragraphs (g), (h) and (i). Mr Grunwald submitted that it would be wrong for the Crown to call the hearsay evidence of Betsy Devall and Wendy Roberts but not Jane Buckley, and that to permit the prosecution to do so would be to fly in the face of all the safeguards in the 2003 Act. The judge accepted this submission. He decided that he would permit the Jane Buckley evidence to be adduced by the prosecution if she was called, but not otherwise. He considered that, if she was called, "the safeguards put in place by to paragraphs (g), (h) and (i) are met". He said:

"Oral evidence of the matter stated in the hearsay statements could be given, in the sense of Jane Buckley explaining why she could not see what Betsy Devall and Wendy Roberts both say she said she did see, as well as being able to say that she did not tell them that she did; the prosecution not merely calling Miss Devall and Miss Roberts, but relying on evidence from Danielle White to set the scene outside the deceased's house, and thus providing the jury with all the evidence they would need to be sure of the truth of the hearsay statements.

As part of that process, the defence have the ability to challenge it and furthermore to do so in a manner which presents no difficulty likely to prejudice the defendant's case, or even to prejudice the presentation of it."

The evidence

16. For the purposes of this appeal, it is unnecessary to summarise all of the very considerable evidence called at the trial.
17. Sarah Schock and her daughter Sarah Girl gave evidence substantially as anticipated by the judge, confirming that on the telephone Moses had accused the appellant of stabbing him.
18. Wendy Roberts and Betsy Devall testified that Jane Buckley had said to them that she saw the stabbing but would not give evidence to that effect because she was in fear of the appellant and his family.
19. Jane Buckley was called by the judge, and cross-examined on behalf of the appellant and the prosecution. She said that she had lived at 9 Swallowtail Close for over 11 years and had known Moses. Wendy Roberts was her best friend. Jane was at home on the evening of 30 October and the view from her house enabled her to see Moses' house and the adjoining grass slope. At 23 49 she called Wendy. The call lasted 5 minutes. Jane denied that she called to tell Wendy that she had seen a fight outside number 26 and wanted to tell Sarah what had happened to Moses. Although she was in her front room she did not hear any noise or words from that direction. Wendy told her that Sarah had been badly beaten up and mentioned an ambulance. Jane texted Danielle White at number 6 Swallowtail Close. (She did not mention it to the police 3 days later when she was interviewed.) Danielle rang and asked if she had a spare nappy. She said she did and Danielle came to collect it just as she was leaving to take her phone to Moses. She left Levi, her 2 year old son, who was asleep on the sofa, and took the phone to Moses' house. She called Moses, gave him the phone and left him speaking to Sarah. She heard Levi crying so she went into her house and changed his nappy and gave him a bottle. Then she went back to get her phone carrying the child. Moses must have been stabbed when she was dealing with Levi. She saw Moses lying in his hallway. Dave Hook called the ambulance and she called out the postcode. Her phone was by the front door as if it had just been dropped. She called Danielle and asked her to take Levi home.
20. The police and ambulance came. Betsy Devall arrived but was not allowed into the house. Jane and Betsy sat on the pavement together. Jane was not crying and did not tell Betsy that she had seen what happened to Moses. She was comforting Betsy. She told her she thought Moses had been stabbed. The police told them he was dead. If she had told Betsy who had killed Moses, Betsy would have told the police then. A number of people were there talking about what had happened and Betsy did not say that Jane knew what had happened because she saw it. After about 20 minutes Jane went home.
21. Jane Buckley said that she next saw Betsy when she went to the caravan site to pay her respects. No one told her she had to tell the police what she saw. If she had seen who stabbed Moses she would have told the police. Later Betsy came to see her and asked if she had seen what had happened to Moses. She said she had not. Betsy did not say she had heard that Jane did not want to tell the police and she did not say she would love to tell them but she had no husband and 2 boys.
22. Jane saw Wendy and Danielle at McDonalds. She was upset about what had happened and Wendy comforted her. She never told Wendy that she had seen what happened to Moses and Wendy did not try to persuade her to tell the police that she had.
23. Jane had not set out to help the appellant or his family. They put no pressure on her and she was not frightened of anyone but it had turned into a nightmare for her. All she did was do a favour for a friend by taking a phone to another friend. She did not see Moses being stabbed and never told anyone that she did.
24. Danielle White gave evidence that she was a neighbour of Sarah and Moses, Jane and Wendy. On the night of 30 October 2001 her friend Amanda was at her house with her child. Danielle received a text from Jane Buckley asking if Wendy had told her what happened to Sarah. Danielle rang Jane who told her about the fight at the Priory Tavern. Danielle asked if she had a spare nappy for Amanda's 2-year-old. Jane said she had, so Danielle went round to collect it. Jane was trying to call Wendy. Then Wendy got through and asked Jane to take the phone to Moses so that Wendy could tell him how Sarah was. Jane gave Danielle the nappy and they left the house: Danielle went home and Jane went over to number 26. Initially, Danielle said in evidence that she could not remember whether Jane took Levi with her. However, she was referred her to her witness statement made on 1 December, in which she had said that Jane did take her son Levi with her. Danielle said that if she had said it then, she must have meant it, but she could no longer be sure about it. Jane called Danielle and told her that Moses had been stabbed and asked her to come to Moses' house to collect Levi from her. Danielle went straightaway. The police and ambulance service were there. Danielle took Levi to her home.
25. A few days later Danielle and Wendy met Jane at McDonalds. Jane got upset and started crying. Danielle went to the counter to place their order and could not hear what Wendy and Jane were saying but Wendy was comforting Jane. Wendy told Danielle that Jane was present when Moses was stabbed. Danielle did not know where Wendy got the information from; there were a lot of rumours. Jane did not tell Danielle how Moses was stabbed and Danielle never asked Jane about it, but she knew that Jane did not want to make a statement and maintained that she did not see anything. Jane never said she was in fear.
26. No submission was made on behalf of the appellant at the conclusion of the prosecution case (and the evidence of Jane Buckley). The appellant did not give evidence.

The submissions before the Court of Appeal

27. Mr Pownall accepted that reliable evidence that Moses had accused the appellant of his stabbing immediately after it occurred would have been admissible in evidence. However, he submitted that the evidence that Moses had accused the appellant was so doubtful that it should not have been admitted. In essence, he submitted that it was inconceivable that, if Sarah Schock and her daughter had learned during the telephone call that the appellant had stabbed Moses, they would not have mentioned it to anyone at the hospital, including their supporters, medical staff and police. To the contrary, at the hospital Sarah Devall was asking what was wrong with her father, an inquiry that was inconsistent with her having heard what had happened on the telephone. Similarly, it was inconceivable that they would not have mentioned it when the Family Liaison officers attended Betsy Duvall's home in the afternoon of 31 October 2009, yet the officers had no record of any accusation being made. It was not until Sarah Schock and Sarah Child were interviewed by the police that evening that they first mentioned the telephone call at the hospital. This had the hallmarks of Moses' partner and daughter seeking to create evidence against the appellant whom they believed to have been responsible for his death.
28. Mr Pownall, in his cogent submissions, similarly contended that the evidence of Wendy Roberts and Betsy Devall was too unreliable to be admissible. Neither was independent, and both had a motive to create or to improve the evidence against the appellant, if they believed him to have been responsible for the death of Moses. Their evidence was contradicted by Jane Buckley herself. It was not until 6 November 2009 that Betsy Devall told police that Jane Buckley had seen the stabbing, and told her that she had done so when she, Betsy, turned up at the scene, but was too frightened to say anything to the police. Yet on the previous day, 5 November, she had told the police that a girl with a pink top was with the appellant when he stabbed Moses, and that the stabbing happened at the small gate to Moses's home. This information was stated in the police report to have come, not from Jane Buckley, but from a person not yet interviewed, believed to be Michael Roberts, who had been standing in his upstairs bedroom watching the incident. Betsy Devall's account of being approached by Jane Buckley shortly after the stabbing and identifying the appellant was the murderer was not given to the police until 27 January 2010.
29. Wendy Roberts specifically denied to the police on 8 November 2009 that anyone had told her that they had seen the stabbing. It was not until the end of January 2010 that she alleged that Jane Buckley had told her that she had witnessed the murder. It was not credible that if Wendy Roberts had been told by Jane that she had witnessed the murder, she, Wendy, would not have mentioned that to friends and to the police at a much earlier date. Again, the inference was that her evidence was intended to incriminate the person they believed to have been responsible for Moses' death.
30. For the prosecution, Mr Jafferjee QC submitted that the hearsay evidence had been properly admitted under the applicable provisions of the Criminal Justice Act 2003, and that in effect the appellant was seeking to go behind the verdict of the jury.

Discussion

31. We think it necessary to analyse what was the procedural position at different stages of the trial.
32. When the application was made by the prosecution to the Recorder, the proposed evidence as to what Moses was alleged to have said on the telephone to his wife immediately after he was stabbed was plainly admissible under the common law rule restated in paragraph 4 of section 118(1). Admissibility under those provisions is not subject to the provisions of section 118(2) or 116, but the judge has power to exclude it under section 126 of the 2003 Act and/or section 78 of PACE. The judge refused to exclude this evidence. In his judgment, he said:

"I am not going to [exclude this evidence in the exercise of my discretion] because, looking at all the circumstances, including why Sarah Schock was at the hospital in the first place, what had happened to her, who she was with, and the whole sequence of events which, in my judgment, can be fully and fairly examined in cross-examination, including any explanation that Sarah Schock may wish to make before the jury, and the jury left to decide whether they can be sure that the words were said and relayed in the circumstances that they can act on the truth of what was said."

33. We see no error in the Recorder's reasons, and no basis on which this Court could interfere with his decision.
34. As mentioned above, Mr Pownall did not submit that the evidence as to what Jane Buckley was alleged to have said was not capable of falling within section 114((1)(d) of the 2003 Act. This provision, conferring power on the Court to allow hearsay evidence to be admitted if "the court is satisfied that it is in the interests of justice for it to be admissible", is drafted in vague terms and is an unruly horse. There is considerable authority to the effect that this paragraph must be cautiously and narrowly construed and applied: see, e.g., R v Z [2009] EWCA Crim 20 [2009] 1 Cr App R 34. The prosecution case was that Jane Buckley would not tell the Court what she had seen because she was in fear for herself and her children. She was willing to testify, but would not tell the whole truth out of fear. This case was therefore not within section 116(2)(e), because Jane Buckley was willing to, and did give, evidence. The prosecution case was that her evidence would be false, or incomplete, because through fear she would not incriminate the appellant. We accept that if this case is made out, the prosecution were entitled to seek to adduce the evidence of what Jane Buckley had said under section 114((1)(d). The difference between a case in which it is alleged that a witness is unwilling to give evidence at all (section 116(2)(e)) and that in which it is alleged that a witness is willing to give evidence, but through fear is unwilling to give truthful evidence or a complete account of what he or she saw or heard, may not be substantial, and it would be curious if in such a case the witness's previous statements could not, in an appropriate case, be adduced in evidence.
35. The appellant's case is, however, that this evidence should not have been admitted because it was inherently unreliable, given the circumstances in which it had first appeared and the fact that the witnesses who alleged that Jane Buckley had made statements incriminating the appellant were not impartial or independent.
36. It was necessary for the Recorder to consider the factors listed in section 114(2). He did so. For present purposes, the most important paragraphs were (e), (f), (g), (h) and (i). The Recorder considered all of these. As to (e) and (f), he said:

"As to (e) and (f), the so-called reliability subparagraphs, Mr Jafferjee has satisfied me in the light of other free-standing evidence, some of which is derived from telephone evidence, some from the statement of Danielle White, as well as from Jane Buckley's acceptance in the evidence that she has given thus far as to the events, that is to say, the surrounding circumstances of the meetings in which Betsy Devall and Wendy Roberts describe seeing and speaking to Jane Buckley; that the makers and the making of the hearsay statements are reliable."

37. This was a conclusion that the Recorder was entitled to reach on the basis of the material before him. He proceeded to consider paragraphs (g) to (i) and said that provided Jane Buckley was called to give evidence, either by the prosecution or himself, the safeguards envisaged by those paragraphs would be met, and the jury would have all the evidence before them with which to assess whether or not the alleged hearsay statements were true. We see no error in that decision or in that approach. It follows that we do not consider that the Recorder's decision to allow the prosecution to admit the Jane Buckley hearsay was one with which we should interfere.
38. However, once the prosecution had closed its case, the defence could at that stage have made a Galbraith submission that, for the reasons so cogently put forward by Mr Pownall, the evidence identifying the appellant as the person who stabbed Moses was not such that the jury could properly convict. However, it is significant that no such application was made.
39. We of course do not know whether the jury accepted both the evidence of what Moses was alleged to have said when he was stabbed and that ascribed to Jane. So far as the latter is concerned, however, it is plain that it was open to the jury to accept that she was a witness to the stabbing. The telephone call between Moses and Sarah on Jane's telephone coincided with the 999 call. Jane's explanation for her not being present when the stabbing took place was that she had returned home because she had left her son there and he was crying. However, she was apparently present when the call was begun, having brought her telephone for the purpose. She was also present when the 999 call was made: she was heard giving the post code of the crime scene. There was relatively little time between her taking her telephone to Moses and the 999 call. Her evidence was that she had had time to return home, pick up her son and return to Moses' home. Her explanation for her absence when the stabbing took place was contradicted by Danielle White's original witness statement. If the jury concluded that Danielle White's evidence that Jane had her son with her when she took her telephone to Moses was true, it was a very small step to conclude that Jane's denial of having witnessed the stabbing was untrue, and that she was too frightened tell the truth. If so, the jury could accept that she did tell Jane Buckley and Betsy Devall what she had seen and heard.
40. No complaint is made as to the Recorder's summing up to the jury. He pointed out to them the matters now relied upon by the appellant as affecting the credibility of the hearsay evidence to which objection had been taken. There was evidence before the jury entitling them to conclude that the hearsay statements on which the prosecution relied, or at least one or more of them, had been made and were reliable. The appellant might have testified and contradicted that hearsay. He did not do so. His failure to do so would have weighed heavily with the jury.
41. In these circumstances we have concluded that the appellant's ground of appeal is not made out. His appeal will be dismissed.