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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Calvert v AG [2013] JCA 098 (21 May 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_098.html Cite as: [2013] JCA 98, [2013] JCA 098 |
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Appeal against conviction on one count of affray.
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Before : |
N. Pleming, Q.C., President; |
Michael Thomas Calvert
-v-
The Attorney General
Renewed application for leave to appeal against his conviction by the Royal Court following an Assize trial on 6th and 7th November 2012 on:
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1 count of: |
Affray. |
Leave to appeal was refused by McNeill JA sitting as a single judge on 17th January, 2013.
D. J. Hopwood, Esq., Crown Advocate.
Advocate S. A. Fitz as Amicus for the Applicant.
JUDGMENT
bennett JA:
THIS IS THE JUDGMENT OF THE COURT.
1. On 18 April 2012 a fight took place in Bond St, St Helier. The victim, Alexander Ferguson, was cut about the face. There is no dispute that he was attacked by a man with a knife and injured. Mr Calvert was arrested the same day and subsequently charged with making an affray. On 6 and 7 November 2012 his trial took place and he gave evidence to the Royal Court. He denied that it was he that attacked Ferguson. His defence was that the assailant was an unnamed man whom he saw attacking Ferguson. He was unanimously convicted, for which offence on 19 December he was sentenced to four and a half years imprisonment. He renews his application for leave to appeal against his conviction on the grounds set out by Advocate Fitz, Amicus Curiae, in her contentions dated 19 April 2013, leave having been refused by McNeill JA as a single judge on 17 January 2013.
2. The prosecution's case at trial was as follows. The applicant is from Liverpool and in April 2012 was living at Flat 2, No. 7 Hope Street, which runs at a right angle from Bond St. in St Helier. The applicant had arranged to meet Ferguson at about midday on 18 April. Two men, Hutchinson and Cookson, who both were born in Jersey and do not speak with Liverpudlian accents, arrived in Bond St shortly before midday. They were known to the applicant. At about 12.25 pm the applicant, Hutchinson and Cookson met with Ferguson in Hope St, which was caught by CCTV cameras stationed in Hope St. just before the incident in Bond St. The applicant, wearing light coloured jogging bottoms, can be seen on CCTV chasing Ferguson along Bond St in a northerly direction.
3. Two witnesses called by the prosecution, Mr Howell-Jackson and Mr Hacquoil, were working in a ground floor room at 8, Bond St., which has two windows looking out across Bond St. to railings on the other side of the street just to the north of the entrance to the Parish Church of St. Helier. They had an unobstructed view through the windows across the street. Mr Howell-Jackson's evidence is summarised in the summing-up of the Deputy Bailiff to the jury as follows. He saw a man in a hooded, padded jacket chased by another man and pushed to the ground. The man chasing him appeared to hold him down with his left hand and was trying to stick something into him, namely a pointed instrument which looked sharp. The attacker was a wiry individual with a shaved head. Mr Howell-Jackson thought the assailant struck the victim more than three times but less than eight times. The man on the floor screamed but did not say anything. He was pretty sure that the assailant spoke with a Liverpudlian accent. As the victim ran off the assailant shouted at him "That's what you get you bell-end, you cock", which he said repeatedly. Mr Hacquoil's evidence was summarised by the Deputy Bailiff as follows. He heard loud noises and screams. Some thirty seconds later he saw a man on the floor and a man on top of him. The attacker had some sort of object in his hand with which he was making a violent, stabbing or punching motion. The victim was on the floor against the railings. The attacker had very short hair, if not bald, and was wearing something like a tracksuit. The attacker had a Scouse accent i.e. a Liverpudlian accent and he repeatedly shouted "You cock, you bell-end". Both witnesses agreed that the view from the window was not perfect in the sense that their view was partly obstructed by the attacker and partly by the fact that they were sitting down in the room at No. 8. It is also important to note that both witnesses failed to identify the attacker at video identification parades held by the police thereafter.
4. Immediately after the violent incident the applicant, who, in formal admissions, accepted that at this time he was unlawfully in possession of a knife in Hope and Bond Streets, and that he was seen on CCTV entering Hope St from Bond St. and then bending over the far side of a large, green rubbish bin in Cross St which runs north from Hope St., and is then seen to enter 7, Hope St.
5. That afternoon the police found a knife and screwdriver in a pipe outlet situated in a low position next to the green rubbish bin, another screwdriver in Bond St., and a number of items of clothing on the roof and gutter of 7, Hope St., including a pair of training shoes and a pair of light grey jogging bottoms.
6. At about 1.45 pm the applicant left 7, Hope St., having changed his clothes wearing a wig and a pair of glasses and went to a taxi rank. He was then arrested.
7. When interviewed by the police the applicant's account, which he subsequently admitted at trial to be lies, was summarised by the Deputy Bailiff in his summing-up as follows. The applicant said that he stayed in all morning until he was arrested. He denied having seen Ferguson that day and had not seen him for a week. He denied that he had carried a knife and that he had hidden one in Hope St. None of the clothes found on the roof were his. He denied that the CCTV footage showed him at all.
8. When the applicant appeared before the Magistrate at a bail hearing on 20 April, 2012 he said to that court that he had picked up the knife and the screwdriver to put them away after Ferguson pulled them on him. Ferguson had assaulted him. The prosecution's case was that these were lies. The applicant's evidence to the Royal Court was that he had made a mistake, not told a lie, caused by the valium given to him by the police doctor whilst in custody.
9. The applicant's evidence to the Royal Court was as follows, as summarised by the Deputy Bailiff. The applicant was concerned, having had a telephone conversation with Ferguson earlier on 18 April, that Ferguson would attack him with a knife and stab him. Thus he made sure that he would have a number of friends with him when he met Ferguson, namely Hutchinson and Cookson and a man from Liverpool, whom he knew but refused to name (to whom we will refer hereafter as "the unnamed man"). The unnamed man went to the entrance to the church. Ferguson attacked Cookson in Hope St. The applicant thus went to the van, in which they had all come to Hope St., in order to find something to defend himself. He found a knife in the cutlery drawer in the foot well of the van. Ferguson came round the corner from Hope St. The applicant was very scared and ran at Ferguson, causing Ferguson to run back down Bond St. The applicant stopped at the junction of Hope and Bond Sts and then saw the unnamed man come out of the churchyard and take a swing at Ferguson causing Ferguson to drop a screwdriver which he was carrying. The unnamed man then chased Ferguson further down Bond St. where he fell by the railings. The applicant saw the unnamed man standing over Ferguson holding a knife and waving his arms, but he did not see any blows struck. The unnamed man then approached the applicant and asked the applicant to get rid of the knife used to strike Ferguson, which the applicant declined to do as he already had a knife and screwdriver in his possession. The applicant panicked. He hid his own knife and the screwdriver where the police found them, changed his clothes, hid the clothes he had worn in the streets on the roof, put on the wig and glasses, went out of 7, Hope St. and was thereafter arrested by the police.
10. Hutchinson gave evidence on behalf of the applicant. He said that that morning he and Cookson were moving house and shifting clothes and furniture in the van. They picked up the unnamed man who had a Liverpool accent and was dropped off by the church. Hutchinson could not remember anything much else that had happened on that day, except that the knife recovered by the police in Cross St. was his mother's kitchen knife. He had last seen it in the kitchen at 7, Hope St. and that it was not being moved with the pictures and clothing.
11. In the course of her submissions to the jury, Advocate Burns, for the applicant, made four points which she argued made the prosecution's case untenable. First, the CCTV did not show the violent incident. Second, no witness identified the applicant as the person who attacked Ferguson and the person who did attack him was the unnamed man. Third, no blood, no DNA, and no fibres were found on the knife and screwdriver recovered from Cross St., despite Ferguson sustaining cuts on his nose and lip and his jacket being cut. Advocate Burns argued that this was because the knife and screwdriver in the possession of the applicant were not used in the attack on Ferguson. Fourth, Ferguson had not provided a statement, had not been called as a witness, and had not named anybody as his assailant. Thus she submitted that the jury could not be satisfied, so that it was sure, that the applicant carried out the attack on Ferguson.
12. There is no complaint before us about the Deputy Bailiff's summing-up, save for one point to which we will come. It was fair and balanced. It correctly summarised the evidence called by the Crown and the Defence.
13. Before we address the arguments of the applicant and of the Crown on the appeal itself, it is convenient if we decide the application for leave to call further evidence dated 19 April, 2013. The evidence sought to be placed before us is that of Mr Peter Pearce, a Managing Associate with Messrs Ogier. His evidence is contained in his statement of 18 April, 2013. On 15 April, 2013 he attended 8, Bond St., drew a plan of, and took photographs from, the desks looking out through the windows where Mr Howell-Jackson and Mr Hacquoil had been sitting on 18 April, 2012 observing the violent incident. At paras 24 to 26 inclusive of Advocate Fitz's submissions of 19 April 2013 is the applicant's reasons why it is said this court should admit Mr Pearce's evidence. The nub is at para 26 which says:-
"Whilst it is accepted that this evidence was available at the trial, the Applicant being in custody was not in a position to obtain it himself and his lawyers were requested but failed to do so. The failing of his defence team should not prevent the Court considering the matter. The evidence is credible and highly relevant as it impacts further on the credibility of the two key prosecution witnesses".
14. Advocate Fitz correctly at para 25 of her submissions sets out the principles to be applied in considering whether this court should admit fresh evidence, the first of which is that the evidence must be evidence which was not available at the trial, see the Court of Appeal's judgment at page 2505 of Attorney General v Gorvel [1973] JJ 2503. Advocate Fitz has expressly conceded that the evidence now sought to be adduced was available at the trial. Thus the application must fail on that ground. In truth, as can be seen from para 26 of her submissions, the real complaint being made is the alleged failure of the applicant's trial lawyers to obtain this evidence.
15. We shall now consider the alleged imperfection in the summing-up of the Deputy Bailiff. He defined, for the benefit of the jury, the offence of affray as:-
16. Advocate Fitz submits that the Deputy Bailiff fell into error in that he stated that "fear" for his or her personal safety was part of the test whereas he should have directed the jury that "a person of reasonably firm character might be expected to be terrified", per M.C. St J. Birt, Deputy Bailiff (as he then was) sitting in the Royal Court at para 3 of his judgment on preliminary points in HM Attorney General v Shewan et ors [2005] JRC 049A. It is further submitted that the Oxford English Dictionary defines "fear" as "the emotion of pain or uneasiness caused by the sense of impending danger, or by the prospect of some possible evil" whereas "terror" is defined as "The state of being terrified or extremely frightened: intense fear or dread; an instance of feeling this". Thus the jury should have been asked to consider whether a person of reasonably firm character, seeing the violent incident, would have been terrified. Finally, it is submitted that no witness spoke of being terrified and thus it was not reasonable for the conclusion to be drawn that a person of reasonably firm character might be expected to be terrified.
17. Advocate Hopwood, for the Crown, has drawn our attention to the judgment of Sir Philip Bailhache, Bailiff in the Attorney General v Capuano [2003] JRC 211 in which he accepted the defence submission that there was no case to answer to a charge of affray. At para 2 of his judgment he said:-
18. It is to be noted, however, that in paras 5 and 6 of his judgment the Bailiff speaks of there being no evidence that "anyone was placed in terror" by the conduct of the accused and that "Counsel for the accused concedes that Mr Matthews was terrified by the pointing of the replica gun".
19. Advocate Hopwood submits that that in the instant case, where Ferguson's face was slashed with a knife, it was perfectly proper to direct the jury, in plain modern language, to consider whether a bystander of reasonably firm character would be expected to fear for his or her own personal safety. Moreover, the jury had to consider the question of how a hypothetical bystander would feel witnessing the violent incident and that it is obvious that the level of violence, which was not in dispute, was shocking enough to cause terror in any given bystander.
20. On the facts of this case it is plain to us that a hypothetical person of reasonably firm character witnessing the violent incident in Bond St. on 18 April, 2012 would have been either terrified, or in fear for his or her own personal safety, or frightened or intimidated. The jury would have well understood that what the Crown had to prove was a real fear for his or her personal safety as opposed to mere uneasiness caused by impending danger. In the instant case "fear for his or her own personal safety" can be no different from "terror". We are therefore of the opinion that the direction in the instant case cannot be criticised.
21. The nub of the applicant's case before us is that a substantial miscarriage of justice occurred on four grounds, one of which we have already dealt with at paras 15 to 20 above. The other three are that the verdict was unreasonable and cannot be supported having regard to the evidence, that the applicant was wrongly advised on the merits of calling Ferguson, and that other errors occurred in the course of the trial which prejudiced the applicant and together with the other grounds of appeal caused a miscarriage of justice. We take each in turn.
22. The first ground, that the verdict was unreasonable and cannot be supported having regard to the evidence, falls basically into two parts, namely that the prosecution's witnesses, in particular Mr Howell-Jackson and Mr Hacquoil, could not be relied upon and that their evidence in particular was contaminated by discussions they either had, or must have had, with each other before giving their evidence to the jury.
23. At para 14 of her submissions Advocate Fitz helpfully sets out in tabular form how it is alleged the descriptions given by Mr Howell-Jackson and Mr Hacquoil either in oral evidence or in statements did not match the applicant's. Mr Howell-Jackson described the assailant as "wiry", whereas it is said he weighed 13½ stone and was muscular, and as wearing a tracksuit/shell suit, whereas the applicant was not wearing a tracksuit top but a t-shirt with very distinctive stripes which would have been easily identified. Mr Hacquoil described the assailant as having medium length hair (to DC Thomas at the scene) whereas the applicant had very short or no hair; as wearing a tracksuit with tracksuit style jacket with a zip in the trousers at calf level (in evidence) whereas the applicant's trousers had no zip, the applicant was not wearing a tracksuit jacket, and no reference was made by Mr Hacquoil to the distinctive t-shirt. In Mr Hacquoil's statement he said the assailant wore a light grey/light blue top, whereas the applicant was wearing a distinctive t-shirt. Advocate Fitz submitted that these discrepancies, particularly what Mr Hacquoil said to DC Thomas about the length of the assailant's hair and in his statement about the assailant wearing a light grey/blue top, were not brought to the attention of the jury and that they should have been by the applicant's trial lawyer. Advocate Fitz sought in her written contentions to downplay the "principal resemblance" of the assailant to the applicant of short hair and the Liverpool accent as "not significant features".
24. Advocate Hopwood responds that these are not substantial criticisms. On the whole these two witnesses gave good descriptions of the assailant that sufficiently matched that of the applicant. It is to be expected that in a fast moving incident honest witnesses will be mistaken in some aspects of their recollections.
25. In our opinion the jury could reasonably have concluded, so that they were sure, that the assailant had very short hair or no hair and had a Liverpool accent. It was not in dispute that Hutchinson and Cookson had neither of those characteristics. The only other person who had those characteristics was the unnamed man that the applicant said that he saw assault Ferguson. In cross-examination at tab 26 page 369 and 370 of our bundle, the applicant accepted that the assailant had a similar description to himself. He agreed at page 370 that, on his evidence, there were two men within yards of each other on that day with the same haircut, similar clothing, same build, similar height, similar age, with Liverpudlian accents, and with knives in their hands. On his account to the jury, the applicant knew the unnamed man already, had seen him with Cookson and Hutchinson in the van which they parked in Bond St. before meeting Ferguson and had also seen him during and after the incident. The jury could thus conclude from the applicant's own evidence that he and the unnamed man were very similar in all important respects, and that the variations in the accounts of the witnesses did not assist them in determining the identity of the assailant.
26. The issue for the jury therefore was whether
they were sure that it was the applicant who was the assailant and not the
unnamed man.. The jury were entitled to have
regard to all the evidence including that of the applicant and Hutchinson who
was called on his behalf. Hutchinson gave what the jury could regard as
damaging evidence to the applicant's case, namely that the knife which
the applicant said he got from the van was in fact removed from the flat and
had not been placed in the van when Hutchinson was moving his personal effects.
The jury could thus, on the evidence, conclude that the knife was taken from
the flat by the applicant. As to the applicant's own evidence to the
jury, this was completely at odds with what he had told the police in interview
which he admitted were lies. He had denied being anywhere near the incident
i.e. he was in the flat. Furthermore, the jury, if it had believed that his
evidence either was true or might have been true, could not have convicted the
applicant because they could not have been sure that the assailant was the applicant.
The jury must therefore have rejected the applicant's evidence in order
to come to a guilty verdict. When the applicant's evidence is analysed
this is hardly surprising. As submitted by Advocate Hopwood, his story was an
unlikely one. The applicant attended the meeting with Ferguson despite being
told that Ferguson, was going to stab him; the alleged assailant stayed out of
sight at all times of the CCTV cameras; the alleged assailant was not
acknowledged by anybody throughout; when confronted by Ferguson, whom he feared
would stab him, the applicant ran at Ferguson and chased him; the applicant
stopped running after Ferguson and was replaced by the alleged assailant who then
attacked savagely Ferguson, a man whom the unnamed man did not know and who was
running from the scene; and the alleged assailant looked like and spoke in the
same way as the applicant. The jury were thus entitled to conclude, and must
have concluded, that the applicant's evidence was lies, and lies told in
order to deceive them into believing that the applicant was not the assailant.
27. As to contamination, it is submitted for the applicant that Mr Terry Gallichan told the jury that "we've had a good discussion back there about what happened" referring to the witness room outside the courtroom. Furthermore, it is submitted that before the trial started there must have been discussion between Mr Howell-Jackson and Mr Hacquoil who would have naturally discussed the incident. Thus it is submitted that their evidence cannot be trusted to be reliable evidence, and that Mr Gallichan, Mr Howell-Jackson and Mr Hacquoil should have been cross-examined as to what discussions they had had prior to their giving evidence to the jury. In our opinion this submission ignores the critical factor that the evidence for the Crown and for the applicant as to the description of Ferguson's attacker did not in the end materially differ - see para 25 above. The issue for the jury was whether it was sure that the attacker was the applicant. Furthermore, we accept the submission of Advocate Hopwood that the content of the evidence of Mr Howell-Jackson and Mr Hacquoil points to there having been no contamination.
28. The next ground of appeal is
that either that the applicant's trial lawyers failed to consider making
an application that the prosecution should make Ferguson available for
cross-examination or that he should have been called as a witness for the applicant.
We take each alternative in turn.
29. Before we examine the rival submissions of Advocates Hopwood and Fitz, we remind ourselves that the issue before the jury was not whether Ferguson had been attacked and injured with a knife - that was not in dispute, but whether the jury could be sure that it was the applicant who had carried out the attack on Ferguson.
30. Ferguson never made a written statement about what happened on 18 April, 2012. He was in fact arrested on suspicion of making an affray and was interviewed by the police under caution on 18 and 19 April, 2012. He refused to identify his attacker. He said one person attacked his leg with a screwdriver and another man was attacking him with a knife. When the police put it to him that it was the applicant who attacked him with a knife he said "Well I'm not saying a word, I'm not mentioning no names and if it goes to court I'll just say it wasn't him ..." Later to the police he said that the applicant jumped out of the van with three males. He was shown the knife found in Cross St. and said he was sure it was not the knife used against him claiming that the knife used was a butter or bread knife with a curved end.
31. Ferguson told PC Stubbs that there were three people, three Scousers but did not name his attacker. He told Dr Johnson that three men jumped out of the van and ran after him, one of whom had a knife and another a screwdriver. The applicant believes that Ferguson attempted to see PC Billson at the police headquarters to make a statement that the applicant was not his attacker. Ferguson told Adam Harrison, the applicant's initial legal adviser, that he had told the police that the applicant was not the person who used the knife on him but that he was not prepared to give a statement to that effect. Ferguson told the applicant's legal team on 4 October that the applicant was not his attacker. However, he said that even if forced to attend court by subpoena he would say "nothing". Ferguson apparently told the Viscount's officer, when initially warned to attend court, that he was unwilling to do so as he was afraid for his and his family's safety. Finally, on or just after 1 November the applicant's lawyers were telephoned by Ferguson who told them that it was the applicant who was the assailant and that, if forced to attend court, he would tell the truth and confirm this in open court.
32. Advocate Hopwood, in his submissions, comments that when an applicant argues that a witness should have been called, there ought to be a new statement by that witness exonerating the applicant in whole or in part. This is conspicuously lacking in the instant case and the applicant relies on what Ferguson has said to others.
33. Advocate Hopwood concedes that Advocate Fitz has correctly identified that Archbold Criminal Pleading, Evidence and Practice 2013 at paras 4-347 to 4-349 sets out the relevant principles, distilled in R v Russell-Jones [1995] 1 Cr. App. R. 538 by the Court of Appeal which was applied in the Royal Court by Mr Commissioner Hamon in Attorney General v Knowles 2002/178.
34. The nub of his submissions is that the Crown could not have been required to call Ferguson because Ferguson never made a statement and because such evidence as he did give, in comments to the police, was not relied upon by the Crown at any stage of the criminal proceedings against the applicant. Furthermore, even if Ferguson could be said to be a witness who gives direct evidence of the primary facts of the case, the prosecution ought normally to call or offer to call that witness "unless for good reason, in any instance, they regard the witnesses' evidence as unworthy of belief" - see Archbold at 4-347. Advocate Hopwood submits that a man who has refused to give a witness statement, who has given conflicting accounts, and who has said that he will not attend court to give evidence because of threats, can hardly be said to have given, or be likely to give, evidence worthy of belief. The Crown did consider calling Ferguson and decided not to, on the ground that he was not a credible witness. Finally, Advocate Hopwood relies on a passage at the end of 4-349 of Archbold that even where witness statements have been served on the defence as unused material, the prosecution is not under any duty to call the makers of the statements as witnesses and that for a judge to press the prosecution to do so, would, in effect, be to require the Crown to act as both prosecution and defence.
35. We agree with the submissions of the Crown. Put shortly, Ferguson had made no written statement and thus there was nothing to serve upon the defence, whether to be used or not. The Crown could readily conclude that Ferguson's "evidence" as to who was present at the violent incident and who attacked him was unworthy of belief. We are confident that had any application been made to the Royal Court for an order that the Crown make Ferguson available for cross-examination, it would have utterly failed.
36. It is next submitted that the applicant's trial lawyers made no or no proper analysis of the merits and disadvantages of calling Ferguson as a witness for the defence.
37. We cannot agree. We have read the attendance notes and letters of the applicant's trial lawyers at tab 15 in our bundle and the affidavit of Advocate Burns of 7 May 2013. On 2 November 2012 Mr Elks of the applicant's trial lawyers wrote a comprehensive letter of advice to the applicant in which, having reviewed the matter of calling Ferguson as a defence witness, he said "As such our strong advice to you remains that Mr Ferguson not be called to give evidence and be de-warned to attend on Tuesday." The file note of 5 November records the applicant speaking to his lawyers and telling them that as a result of their advice he does not want to call Ferguson.
38. The applicant's trial lawyers were well aware that they had no written statement from Ferguson exonerating the applicant (either in whole or in part), that Ferguson had made previous inconsistent oral statements, and indeed that on 1 November Ferguson had telephoned the trial lawyers and claimed that if he was called he would say that the applicant was his attacker, thus making the Crown's case. Thus the trial lawyers could not be confident of what Ferguson would say in evidence. Furthermore, Advocate Hopwood has told us that if Ferguson had been called by the applicant, not only would he have been cross-examined on his previous utterances but the Crown would have disclosed and then put to the witness comments made by Ferguson to DC Billson shortly after the affray, that it was the applicant who "was trying to stab him with the knife" (p. 10 of his notebook), who "was the one with the knife" (p. 13), "Micky was trying to slash me" (p. 14), and that "the injuries to his face were from the knife" (p.19).
39. In our opinion the trial lawyers of the applicant cannot in any way be criticised for advising the applicant not to call Ferguson as a witness.
40. Finally, Advocate Fitz submits that there were other errors in the course of the trial that prejudiced the applicant. Admissions 3, 5, 22, and 23 should not have been made. The Crown should not have suggested to the applicant in cross-examination that he was inventing his defence in that his version had not been put to the prosecution witnesses. What the applicant said to the Magistrate at the bail hearing should not have been put before the jury. The applicant is aggrieved at "the implication" that he intended to flee from Jersey. We take each in turn.
41. Admissions 3 and 5 were that on 18 April, 2012 the applicant was in the company of Cookson and Hutchinson and that they had arrived in a van which was parked at the southern end of Bond St. It is said that these admissions were inconsistent with the applicant's account of there being a fourth unnamed man there at the time. We disagree. The applicant had always accepted that Cookson and Hutchinson were in his company but added that there was the fourth unnamed man. In any event it was no part of the Crown's case to the jury that these admissions were inconsistent with the applicant's evidence.
42. Admission 22 was that the applicant's
jogging bottoms were bloodstained around the pocket area, which, when compared
by a forensic expert to
a sample of the applicant's DNA, was found to match and that the
probability of this blood originating from someone other than the applicant was
in the order of one in one billion. It is submitted that this fact was entirely
irrelevant as there was no injury to the applicant which could have caused this
staining at the time of the incident. However, we accept the Advocate
Hopwood's submission that the blood on the jogging bottoms provided
evidence that the trousers concealed on the roof of the flat at Hope St. were
the applicant's and that he may have been cut by a sharp object when
wearing them.
43. Admission 23 was that one of the training shoes found on the roof had a small amount of bloodstaining, which, when compared by a forensic scientist to Ferguson's DNA, could have come from Ferguson but that the quantity of blood found was too small for any statistical analysis. It is submitted that the admission was an over simplification of the expert evidence and was too vague to be probative but its prejudicial effect was high. Advocate Hopwood responded that if the admission had not been made, the forensic scientist would have been called to give precisely the evidence contained in the admission. In any event, in our opinion the Deputy Bailiff in his summing-up at page 422 dispelled any prejudice that there might have been. He was at pains to tell the jury that they must decide the case on the evidence and must avoid speculation. One example he gave of speculation related to the blood found on the applicant's shoe. He referred to the terms of the admission and inter alia said "but and it's an important but, it would be pure speculation to say that the blood on the shoe did come from him (we interpolate, i.e. Ferguson). There was no evidence that it was from him. Could have come from him, could have come from someone else."
44. Recent fabrication. During his cross-examination Advocate Hopwood at pp 370 and 371 suggested to the applicant that he had made up, in the witness box, his story of the unnamed man standing on the corner of the street attacking Ferguson because that account had not been put to the prosecution witnesses. At page 371 Advocate Hopwood said:- "What I'm saying is your lawyer didn't stand up and say "Isn't it the case, Mr Hacquoil and Mr Howell-Jones, that there was another man at the scene and he carried out the attack". The applicant replied:- "Well I'm not disputing that they had seen the attacks Sir." It was again suggested that he had made up his evidence in the witness box. It is submitted that this accusation of invention was wrong. In the light of the evidence of Mr Hacquoil and Mr Howell-Jones, there was nothing to put to them as they did not identify the applicant; they gave a description that matched both the applicant and the fourth unnamed man. Furthermore, Advocate Burns should have told the court that the applicant's account was contained in a statement given to his trial lawyers in October 2012 in order to rebut the assertion of recent invention. Advocate Hopwood submits that, whilst it might have been better if he had not made the assertion in connection with the witnesses Hacquoil and Howell-Jones, the applicant's account of having spoken to the unnamed man after the attack ought to have been put to Mr Gallichan, who was standing at the northern end of Bond St., saw the attack, and described one man walking away down Bond St. in a southerly direction and going out of view near the parked van without any reference to that man pausing to speak to any other person. However whatever the merits of the accusation of recent fabrication, when this allegation was put, the applicant made reference to the fact that his account had been written down before he gave evidence i.e. a reference to his statement to his trial lawyers. The Crown did not challenge this evidence and in the circumstances we do not consider that the jury could have thought that there was anything in the claim of recent fabrication. Finally, production of that written statement would not have assisted the applicant. The Crown could then have asserted that the applicant had made up his story (months after the incident) and compared it unfavourably to what he told the police. We consider that the submissions of Advocate Hopwood are correct and that, in the context of the entirety of the applicant's evidence about the attack being perpetrated by someone other than the applicant, which was challenged before the jury as being untruthful, the suggestion that the applicant had invented his story was not inappropriate, and in any event not pursued once the applicant claimed he had made a written statement to his trial lawyers.
45. The applicant's comments to the Magistrate. The Magistrate was considering whether to grant bail or remand the applicant in custody. During the hearing the applicant interrupted the proceedings to make several points, which were then deployed against him at the trial before the jury. It is submitted that either at the beginning of his interruptions or during them he should have been warned that anything he said might be used against him in his trial, particularly so when the quantity and type of medication he had been given might have affected him and thus what he said could have been unreliable. In our opinion there is no authority which would have required the Magistrate to "caution" him as suggested. If a defendant chooses to speak during a hearing relating to bail, when he is under no obligation to do so, what he says is admissible thereafter. It would fly in the face of common sense to say that, if a defendant admitted, wholly or partly, the ingredients of the offence charged against him in a bail hearing or to suggest that the prosecution's case was wrong in important respects, what he said cannot be taken into account by the Magistrate. If then it can be taken into account by the Magistrate, it surely can be taken into account thereafter by a tribunal whose responsibility it is to decide on his guilt or innocence.
46. Flight. We consider that the applicant's being aggrieved at the implication that he intended to flee Jersey is misplaced. Any person dressed in disguise, with his passport in his underpants, who told the police (tab 25 p. 152) that he was going, when arrested, to see a friend who lived by the airport, is likely to be suspected of fleeing Jersey. In any event, during the course of her submissions Advocate Fitz, having consulted with the applicant, abandoned this contention.
47. We are grateful to Advocate Fitz for both her written and oral submissions in which she succinctly distilled all the contentions and concerns of the applicant. Nevertheless, having considered the grounds of appeal, we are satisfied that, for the reasons set out above, no miscarriage of justice has occurred and the renewed application for leave to appeal against conviction is refused.
