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Royal Courts of Justice

The Strand

London WC2

Tuesday 15th April 1997

B E F O R E :

MR JUSTICE HOOPER

and

HER HONOUR JUDGE ANN GODDARD QC

(Acting as a Judge of the CACD)

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R E G I N A

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DAVID ALAN GARDNER

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR R TERRY appeared on behalf of the Applicant

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

JUDGMENT

JUDGE GODDARD: On 17th April 1996, at the Crown Court at Newcastle upon Tyne, in front of His Honour Judge Vos, the appellant was convicted of a single count of robbery, and on 3rd May he was sentenced to seven years' imprisonment. He now renews his application for leave to appeal against conviction, which was refused, and appeals against sentence with leave.

The sole issue in this case was one of identification. The facts were these. At about 6.30 or 7.00 on Sunday 6th August this robbery took place in a car park. The victim a Miss Murray had obtained cash from a cash point and put it in her purse. A car drove near her and a man got out of the front passenger seat, came up to her and demanded her purse. She refused to hand it over. He seized her by the neck, put her to the ground, kicked her in the back, made her let go of the purse, which he picked up. He then went for her necklace. She held onto it. He pulled it off her, ripped her dress, injured her nose, kicked her and left her bleeding with cuts, bruises and scratches. He then demanded her watch and bracelet. Mr Stewart who was nearby intervened and he ran away. Miss Murray picked the appellant out on an identification parade on 25th September. As we have said, the sole issue in the case was one of identity. There was no supporting evidence.

The defendant when he was interviewed said that he did not remember 6th August but he was always in the house. He stayed in because he had been on drugs. He just went out on Thursdays. He could have been playing on the computer, watching television or a video.

The grounds of appeal against conviction are based on the alleged incompetent conduct of the defence. There are four items complained of:

(a) there was no proof of evidence of the defendant;

(b) his evidence was in conflict with the brief and in conflict with the four alibi witnesses called;

(c) potential witnesses were not contacted; and

(d) alibi witnesses were not warned.

We look to the chronology of this matter. The brief is in our papers. It appears to be the brief for the pleas and directions hearing on 22nd January 1996. The instructions read, in part:

"The allegation is completely denied. Mr Gardner knows absolutely nothing of this offence.

Instructing solicitors have been advised that Mr Gardner has several alibi witnesses who will confirm that at the time of the robbery he was helping them to move house and at around 7 pm at the time of the alleged offence was with them."

The alibi witnesses are named as Irene Ridley, Dawn Gaul, Anna Paxton, Ann and Malcolm Wilson. It continues:

"The Crown Prosecution Service were notified by a letter dated 15th December 1995 of the existence of the aforementioned."

Of those five witnesses named Ann and Malcolm Wilson gave evidence as did Irene Ridley, together with one Pauline Gardner. Dawn Gaul and Anna Paxton did not.

Reverting to the history of events, the instructions to counsel emanate from an attendance note dated 18th December 1995 in relation to an attendance on 15th December 1995. After dealing with the alibi witnesses it reads:

"At the time this offence was committed, they can confirm that David was with them. Ann and Malcolm were moving house and were in the process of storing furniture etcetera at 16 Thursby Gardens which is their mother's house. They were being assisted by Irene Ridley who was helping them pack and David was there also and they will confirm that he was with all of them throughout the day.

At the time of this offence which was about 7 pm he was with Ann and Malcolm on the Western Bypass coming from Benwell to Gateshead. He was absolutely nowhere near the town."

On 23rd January 1996 letters were sent to alibi witnesses named in the brief. There is an undated memo in respect of Mrs Ridley who telephoned to say that the CID had taken a statement and had said that was the only one they will need so she was not coming to the solicitors and that they could speak to her on the telephone. An attendance note shows that a statement was taken from Ann Wilson on 12th February 1996. On 26th February the solicitors asked counsel for advice on evidence. Also on 26th February the solicitors wrote, perhaps hopefully, to the Crown Prosecution Service asking for the statements that the police had taken from the alibi witnesses. There was no reply on the file. Indeed the CPS were not obliged to provide those statements.

The trial took place on 16th and 17th April 1996. The evidence called on behalf of the applicant is set out in the summing up. In the transcript at 12B the learned judge says:

"...the defendant here has set up an alibi. When he was interviewed he said he could not remember, but he would have been playing on the computer, or watching TV, or a video...

When he gave evidence before you he said he could not recall what he was doing on 6th August of last year."

The jury were told to bear in mind that since an attack he had suffered from depression so his memory might be flawed. The judge continued at letter D:

"But at his behest a number of witnesses were called setting up an alibi. He was in another place. He could not have been there on 6th August because he was assisting in packing and moving furniture and he was with his sister and brother-in-law and, for most of the time, at all events, Irene Ridley."

Later on in the summing-up the learned judge went further into the evidence. He reminded them of what the defendant had to say at page 23A:

"...on 6th August he was at home all day, at his sister's home. The only time he went out was every Thursday to collect his sickness benefit. His mother collected [it] for him and he would meet her in town, and she confirmed that that was the case."

The judge set out the evidence of his sister, Ann Wilson, at 23E:

"He was living with me. On 6th August, a Sunday, I can recall that day because I was moving furniture to my sister's house at 6 Hodgkin's Gardens, Sheriff Hill, Gateshead..."

We interpose that that appears, counsel says, to be, 12 miles from the place where the applicant lived. We return to the transcript:

"He was helping me and my husband with the furniture all day and the defendant was with me and my husband all day."

Mrs Pauline Gardner, that is the applicant's mother, said (25B):

"I saw my son (the defendant) on 6th August 1995 with my daughter and son-in-law. I arrived there midday, dinner time, and I was still there at 7.30 and he had been there all the time."

The friend, Irene Ridley, who was the friend of Ann Wilson, said:

"I helped with all the packing. I was in her house more than in my own. I would have been packing on 6th August last year. The defendant was there, he is always there."

Finally Malcolm Wilson, the applicant's brother-in-law at 28E said:

"The 6th August, I remember it because it was a Sunday and Sunday was the only day I could borrow a pick-up from my friend. The defendant was assisting me all day, all the time."

Cross-examination of these witnesses was to the effect that they could not be sure of the date. No comment was made by the judge, nor as far as the summing up reveals by prosecution counsel, that the defendant's account was at variance with his witnesses' accounts.

We return now to the grounds for this application for leave to appeal. It is said that the applicant's evidence was inconsistent with the instructions in the brief and with the witnesses and therefore his case was not properly presented.

The applicant's case, it is submitted, was prejudiced by his departure from his instructions. He said that counsel told him to stick to the original, telling him in so many words to tell the truth. So far as proofs were concerned, we have already mentioned the fact that there was no proof from the defendant, there were proofs from three witnesses not Malcolm Wilson. There was a handwritten proof from Susan Truman. There were two witnesses that were not called and no adjournment was sought to call them, that is Dawn Gaul and Anna Paxton. Counsel today says it may be that there was nothing wrong with that decision but the lack of preparation meant there was no material for counsel properly to come to that decision. He also complains that potential alibi witnesses were not contacted. They were named as David Edge, Margaret Paxon and Daniel Grayham.

Information has been sought from the original solicitor and counsel, the defendant having waived privilege for these enquiries to be made. Counsel, Mr Davis, said in his statement that witnesses had been called and gave evidence in accordance with their proofs, nothing was added by asking for an adjournment to call more, and in a more recent document dated 10th April 1997 he makes the point that this was a very simple case and in his view that there was no inconsistency between the applicant's evidence and that of the alibi witnesses. The solicitor said that he did contact the alibi witnesses, the family failed to attend and not all the alibi witnesses responded. In a letter dated 2nd April he accepts that there may be no proof from the appellant but there were a number of conferences, the case was not complex and he was not aware of one DM who has now provided a statement to present solicitors giving further support to the alibi.

We turn to the principles which are to be applied when it is submitted that incompetent preparation and conduct of the defence case makes a conviction unsafe. The case of Ensor 89 Cr App R 139 sets out that the conviction will be quashed if there is a lurking doubt that the appellant suffered injustice as a result of a flagrantly incompetent advocacy. Clinton 97 Cr App R 320 considered a number of authorities in respect of defence counsel's conduct. At page 326 Mr Justice Rougier said this:

"The Court was rightly concerned to emphasise that where counsel had made decisions in good faith after proper consideration of the competing arguments, and, where appropriate after due discussion with his client, such decisions could not possibly be said to render a subsequent verdict unsafe or unsatisfactory. Particularly does this apply to the decision as to whether or not to call the defendant. Conversely and, we stress, exceptionally where it is shown that the decision was taken either in defence of or without proper instructions, or when all the promptings of reason and good sense pointed the other way, it may be open to an appellate Court to set aside the verdict by reason of the terms of section 2(1)(a) of the Act. It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict according to the terms of the subsection."

Mr Justice Rougier included in his criticisms not only defence counsel but extended them to those who had advised the appellant earlier.

We have therefore looked here to see whether there is an arguable ground that this conviction is unsafe. The fact is that this was a simple single issue. The applicant's case was: "I was not at the scene of the robbery. I have no real recollection. I must have been at home because I always was." Alibi witnesses supported him in that. There was no inconsistency revealed between the witnesses and the defendant, none was commented on. Unhappily for the applicant the witnesses were cross-examined by the prosecution as to the details of their recollection and were not then so certain.

We do not wish to encourage solicitor and counsel to believe that proofs should not be properly taken, but taking any lack of preparation at the highest point alleged here, it does not come within the observations in Ensor and Clinton. We therefore are of the view that there is no arguable ground that this conviction is unsafe and this application is accordingly refused.

We should mention that so far as DM was concerned counsel did not actively pursue the application to call her in the light of the fact that she gave her name to the applicant's sister.

The applicant appeals with leave so far as sentence is concerned. In sentencing him His Honour Judge Vos said that it was a planned and premeditated attack and that the streets had to be safe from persons like the defendant under the influence of drugs.

The appellant is now aged 22. He has convictions. There are matters concerning traffic offences and less serious thefts. His last sentence was for aggravated vehicle taking from which he was released on 3rd February 1995. The pre-sentence report described his drug dependency and expressed concern about his ability to cope with imprisonment.

We were referred to the case of Byfield 15 Cr.App.R (S) 674 where three years on a plea of guilty was upheld where there were two robberies and three offences considered. There a woman was attacked in an underpass, was robbed and injured. Here it is submitted to us there was no weapon, that the injuries were relatively minor and that the appellant was aged 21. Nevertheless this was an extremely frightening experience, it was planned and the court was not dealing with it as a plea of guilty. Having, however, had regard to comparable cases, this sentence of seven years' imprisonment is reduced to six years and to that extent this appeal is allowed.