Neutral Citation Number: [2008] EWCA Crim 1574
No. 2007/04793/C1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  10  July  2008

B e f o r e:

LORD  JUSTICE  HOOPER

MRS  JUSTICE  COX  DBE

and

THE  RECORDER  OF  NOTTINGHAM
(Sitting as a Judge of the Court of Appeal, Criminal Division)
- - - - - - - - - - - - - - - - - - - - -

R E G I N A

- v -

DEAN  GIBBONS
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J Swain appeared on behalf of the Appellant

Mr S Wild appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - - - - -

J U D G M E N T

LORD JUSTICE HOOPER: 
1.  On 10 August 2007, at the Crown Court at Wood Green, before His Honour Judge Ader, the appellant was convicted by a majority of 10:2 on each count of aggravated burglary (count 1), robbery (counts 2 and 3) and possessing a firearm or imitation firearm, namely a handgun, with intent to cause fear or violence (count 5).  The jury were unable to reach a verdict in respect of count 4, which was another offence of possessing a firearm.  That count was ordered to lie on the file.  The three co-defendants were acquitted.  The appellant appeals against conviction by leave of the single judge.

2.  All of the charges arise out of the same facts.  In the early hours of 27 October 2006 Aiden Palmer and Lucy Watson were asleep in her flat in Enfield when a group of men forced their way into the flat.  They were armed.  They pointed two guns at Palmer's head and threatened him.  The trigger of one of the guns was pulled and it clicked, but nothing happened.  Two mobile phones were taken, together with other items and the keys to Palmer's Vauxhall car, which was driven away.  Palmer and Miss Watson both made 999 calls that night but, although invited to do so, they did not name those involved.  The following day both gave statements to the police in which they named the appellant as being present.  Subsequently Aiden Palmer attended a formal identification procedure where he identified the three co-defendants.  The Vauxhall car was recovered by the police in Tottenham later that day.

3.  The appellant did not answer any questions in interview.  He declined to give evidence at trial.  It was, however, put to Aiden Palmer and to Lucy Watson by Mr Swain on behalf of the appellant, who appears for him before us today, that he was not there.  That triggered a section 34 direction.  The appellant's failure to give evidence triggered the appropriate direction for that also.

4.  It was clear that Aiden Palmer was reluctant to attend the trial.  A witness summons was issued.  He failed to attend.  A warrant was issued and finally he attended court and gave evidence.  The thrust of his evidence in examination in-chief was that he could not remember anything about that night.  He recalled an evening when he had visited Lucy Watson.  He had parked his Vauxhall car outside.  Later he realised it had gone.  He contacted the police to report that fact.  He could not remember making a statement.  He was invited to look at his statement.  He agreed that the signature was his.  He remembered going to look at an identification line-up after his car had been stolen.  He could not say whom he had picked out or how many he had picked out.  He could not remember anything at all.

5.  Unsurprisingly, the prosecution made an application to have the witness declared hostile so that prosecuting counsel could then cross-examine him as to the contents of the statement.  The judge had no difficulty in ruling that he was hostile.  There is no challenge to that decision.  Nor could there be.  It is inconceivable, unless he was suffering from disease of the mind, that he could not remember what happened to him on that eventful night when not only had he been threatened but his car had been taken.  The contents of his statement were put to him and he was cross-examined in great detail about them. It is sufficient to say that he made it clear that he recognised one of the males in the room as the appellant.  He had known him for about a year because he was the father of Lucy Watson's baby.  He said that he did not tell lies in his statement.  He said that when he made the statement he said only things which were true.  When he was cross-examined by the defence, Palmer said that he could not recall whether the appellant had been present there that night.

6.  Lucy Watson gave evidence.  She was in a relationship with Aiden Palmer (something which he had denied).  He spent most nights at her flat.  She knew the appellant well; he was the father of her child.  She and Palmer had put the security chain on the front door and they had gone to bed.  The next thing she knew was that about seven men came into the room wearing hoods.  They stood by the bed.  One said, "Tell her to put the blanket over her head".  She heard voices, but did not recognise any of them.  She could not remember most of what was said.  She managed to see some of them, but did not recognise anyone.  She started to scream and to cry.  She called the police.  She made a 999 call but did not name anyone.  

7.  She agreed that the following day she had made a witness statement in which she said that she had heard the appellant's voice, which she knew extremely well.  She said that although she had said that in her witness statement, and although that is what she believed at the time, afterwards Palmer had told her that it was not the appellant.  Now, therefore, she did not know whether it was the appellant or not.

8.  There was other evidence which related to the appellant, in particular his failure to answer any questions.  The appellant did not give evidence.

9.  There are two grounds of appeal, although there is considerable overlap between them.  The thrust of the skeleton argument prepared by Mr Swain seemed to us to be that, because of the introduction of section 119 of the Criminal Justice Act 2003, judges should be more cautious when deciding whether or not to allow a witness to be declared hostile.

10.  Section 119 of the 2003 Act provides:

"Inconsistent Statement

(1)  If in criminal proceedings a person gives oral evidence and --

(a)	he admits making a previous inconsistent statement, or

(b)	a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865,

the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible."

11.  We have read the summing-up with care.  In our view the judge did not rely on section 119.  Section 119 comes into play principally when a witness maintains that the contents of a prior statement are not true.  The big change made by section 119 was to permit the jury to rely upon the prior statement, albeit that the witness in evidence declines to adopt it or goes further and says that it is not true.  The section was clearly introduced for a number of reasons, one of which was to deal with the issue of witnesses who are too frightened to admit that their original statement is true.  The jury are entitled to look at all of the circumstances and then to decide that in fact the contents of the statement are true and that the witness' denial of the contents can be disregarded.

12.  We examined Mr Swain's submissions with care.  He agreed that the trial judge was entitled to declare the witness hostile.  After some debate he accepted that the judge was right to allow the jury to hear what Palmer had to say.  The thrust of his argument as it developed was that the judge ought to have ruled that no reasonable jury properly directed could rely on the evidence of Palmer.  That submission, which Mr Swain made at the close of the prosecution case, was rejected.  In order to succeed, Mr Swain has to show that the decision of the trial judge that a reasonable jury properly directed could rely on the evidence of Palmer was one which no reasonable judge could reach.  Mr Swain referred us to the 999 calls in which the witness declined to identify the attackers.  He referred to the fact that the witness was reluctant to attend court and he referred to the manner in which he gave evidence.  He submitted that Aiden Palmer demonstrated that it would be impossible to rely on his evidence as he held the proceedings in the court in contempt.  He regarded his football career as far more important than giving evidence about such grave allegations.  He gave no explanation for his reluctance to give evidence, other than to say that his memory had suffered because of the passage of time.  In our view the judge was entitled to reach the conclusion he did about Aiden Palmer's evidence.

13.  Mr Swain submitted that section 119 could have an adverse impact on the fairness of proceedings.  However both section 125 and the obligation to direct a jury to disregard evidence if no reasonable jury properly directed could rely on it should prevent that unfairness.

14.  Ground 2 in part repeated the submission that Palmer's evidence could not be believed by a reasonable jury properly directed.  It went on also to look at the evidence of Lucy Watson.  Mr Swain pointed out that she was now saying that she did not know whether she had heard the voice of the appellant.  The judge was asked to rule on this point.  He ruled that there was evidence to go to the jury.  It was a matter for the jury to decide whether or not they could rely on the evidence of Lucy Watson, notwithstanding that she had been persuaded by Aiden Palmer that she was or might be wrong about it.

15.  At the end of the day in our view there was evidence from these two witnesses on which a reasonable jury properly directed could convict.  It is clear that the jury were not convinced about the evidence of Aiden Palmer insofar as the co-defendants were concerned.  But in the case of the appellant they had not only his evidence but the evidence of Lucy Watson.  

16.  For these reasons this appeal against conviction is dismissed.