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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 >> Nelson, R. v [2000] EWCA Crim 114 (01 February 2000) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/114.html Cite as: [2000] EWCA Crim 114

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		1st February 2000

Tuesday 1st February 2000

1. LORD JUSTICE EVANS: The appellant is Peter James Nelson. On 15th July 1999, following a four-day trial, he was convicted of the offence of possessing an imitation firearm with intent to cause another to fear unlawful violence. That was count 2 of the indictment which he faced in the Crown Court at Harrow before His Honour Judge Barrington Black and a jury. A non-custodial sentence was passed on a later date, a sentence which, we are told, Mr Nelson has now served. As the learned judge observed in his summing-up, the issue for the jury was a short one.
2. The background was as follows. On 6th February 1999 the appellant together with his partner and his 7-year-old son drove into a car park in Wembley. A young man, Jason Weekes, who was a car washer, was standing in front of a vacant space, saving it, he said, for a client of his. There was an exchange of words between him and the appellant. The appellant drove away and parked in another space. Mr Weekes came across to that part of the car park which was near the ticket machine, for the purpose, he said, of collecting his car washing equipment. Whatever the reason was, the argument between the appellant and Mr Weekes continued when they were both standing somewhere near the rear of the appellant's motorcar. The prosecution case was that the appellant, in the course of that conversation, opened the boot of his car, took out an air rifle and pointed it at Jason Weekes, causing him to believe that unlawful violence would be used against him. Mr Weekes at that point ran away.
3. The defence case was that the boot of the car was opened by the appellant's young son - the weapon, which was an imitation firearm, was in the boot - and that Mr Weekes must have noticed it there whilst he was arguing with the appellant. The appellant said in terms that the gun was not taken out of the car or pointed at Mr Weekes. Hence, the only factual issue was whether the appellant had done that or not.
4. The appeal has turned upon the admission in evidence of the text and a tape-recording of a 999 call which the complainant, Mr Weekes, made subsequently. The relevant part of the call reads as follows:

"MR WEEKES: I'm sorry to trouble you. I've just got over ... car park, washing someone's car and what it is, a man started arguing with me. I said to him, 'Why are you arguing with me?' He said, 'I'll show you.' He opened the boot and he pointed a gun at me mate. He pointed a gun at me."

5. In his evidence in chief, Mr Weekes said that that phone call was made a minute or so after the event, but when cross-examined he said that the period was possibly about fifteen minutes after the events had occurred, the suggestion having been made to him that it was even longer than that. In the course of cross-examination he said that, during the intervening period, he had first spoken to another person, who had suggested that he should call the police, and that he had then gone to the nearby house of a friend in order to borrow a mobile phone with which to make the call. He refused to identify either the house or the name of the friend.
6. The learned judge ruled that evidence of the 999 call should be admitted, before the hearing began before the jury. In his ruling the learned judge referred to the transcript of the telephone conversation which he had read. He said:

"I consider, by the very content of this telephone conversation, the clear picture given is of something which has just happened. I do not need to know the precise second or the precise moment of the happening. We do know a call was made and we do know that this is a transcript. ...

To delve into the realms of concoction or fantasy, and the time for that to be evolved, to my mind, is rather unusual, to say the least.

I believe that matters such as this can quite properly and quite reasonably be placed before a jury. You are not dealing with a group of idiots, you are dealing with people who can, in fact, put what judgment they need to upon evidence which is presented before them, and which is clearly of a recent nature."

7. The terms of that ruling illustrate - as Mr Buxton has told us was the case - that the learned judge had been addressed as to the admissibility of the 999 call under the so-called res gestae exception to the rule which prohibits hearsay evidence.
8. That particular rule and exception were considered authoritatively, first by the Privy Council in Ratten v R [1972] AC 378, where Lord Wilberforce gave the opinion of the Judicial Committee, and secondly by the House of Lords in R v Andrews [1987] 1 AC 281, where Lord Ackner gave the leading speech. The effect of these authorities is that the court pays less attention to the contemporaneity or otherwise of the alleged statement with the events in question than to the possibility that what was said was, as Lord Ackner put it, "either concocted or distorted". Lord Ackner listed five aspects of the rule at pages 300-301 of the report beginning:

"1. The primary question which the judge must ask himself is - can the possibility of concoction or distortion be disregarded?"

9. In answer to his second question, Lord Ackner continued by referring to what might be relevant circumstances in deciding whether or not the statements should be admitted "providing that the statement was made in conditions of approximate but not exact contemporaneity". It is equally important that, in the same speech Lord Ackner emphasised that a burden rests upon the trial judge when such a statement is admissible to give clear directions to the jury:
10. "Further, they must be satisfied that the declarant did not concoct or distort to his advantage or the disadvantage of the accused the statement relied upon and where there is material to raise the issue, that he was not activated by any malice or ill-will" (page 302C).
11. The learned judge in his summing-up in the present case observed at the outset that he was quite rightly influenced by a recently reported judgment of this Court, which was headed in The Times report, in relation to summings up, "Brevity is a virtue never a vice". He continued:

"I hope I shall be brief... What it said is one should avoid repetition. So far as the judge is concerned, in dealing with his summing-up, he need not go through all his evidence, he need only define the issues in the case. That, in fact, is what I shall do."

12. Influenced, no doubt, by that consideration the learned judge dealt with the matter of the 999 call with extreme brevity towards the end of his summing-up. It should be recorded that, in earlier parts of his summing-up he had referred to the evidence of two witnesses - one a police officer and the other a traffic warden - who came on to the scene after the call was made and who had said that the complainant, Mr Weekes, "certainly looked extremely shaken and agitated". He had also referred to a suggestion that the complaint made by Mr Weekes was possibly exaggerated, if not fabricated, as a result of the argument which had taken place between Mr Weekes and the appellant. There is a hint of such a suggestion in the following passage in the summing-up, where the learned judge referred, first, to the appellant's evidence:

"He was three to four feet away from the car and he could see the rifle."

13. Then the judge continued:

"Is that the key to the matter? as the defence would put it. When the boot was opened he could see the rifle and, therefore, he developed the story of the rifle having been brought out and he having been threatened with it?"

14. Then, towards the end of the summing-up, the learned judge said this, after referring to the transcript of the interview and the photographs which were in evidence:

"... you will also bear in mind the content - give what importance you think to it - of the emergency call transcription which you heard at the very beginning of the case.

Of course, you will bear in mind such details as the pause in time."

15. We interpose that the transcript then continues:

"One minute he says quarter of an hour, it tends to be, as we are shown by the time of the call to the police."

16. Counsel agree that that is an inaccurate precis of what was said and of the evidence that was given. The fact was that, as already stated, the complainant had said, "one minute after the event" in his evidence in chief and modified it to "fifteen minutes" in the course of cross-examination.
17. Continuing with the summing-up:

"But does not the content of that immediate report to the police by Mr Weekes, no matter what you may think of him, give an immediate indication of somebody who has been frightened by a situation? Somebody who does ask, at that stage, that the police take some action because he knows the car is still there because, as he says, he can still see the car there?"

18. Mr Lewis, counsel for the prosecution, has told us that, as matters developed at the trial, the relevance of the 999 call was not so much its contents as the fact that anyone listening to the tape-recording could discern in Mr Weekes' voice the fear and the terror which he says he experienced as a result of having the gun pointed at him. It therefore was relevant, Mr Lewis submits, to Mr Weekes' state of mind.
19. Mr Lewis also told us that that became the dominant factor in the course of the trial, so much so that the jury would not need a clear direction that that was the principal relevance of the phone call in the circumstances of this case. He referred us to the short note on Edwards and Osakwe v DPP [1992] Crim LR 576 where the Divisional Court presided over by Leggatt LJ referred to the ability of magistrates to adopt a common-sense attitude towards questions of admissibility of evidence of this sort, rather than complying with any formal or technical rules of admissibility which would be unknown to the magistrates as to a jury also.
20. In the result, Mr Lewis' submissions indicate to us that there was, in the present case, a particular need for a direction to the jury as to what the relevance and potential importance of this evidence was. There seems to be no doubt from the terms of the judge's ruling that he admitted the evidence on the basis that it was technically part of the res gestae and therefore admissible as an exception to the rule against hearsay. The evidence was admitted because the contents of the conversation tended to confirm the evidence of the prosecution witness, the complainant. As Mr Lewis submits, the question whether the contents were admissible on that basis become less important than the evidence which the conversation itself contained of the state of mind of the complainant. The passage from the summing-up which we have read still has overtones of what we might call technical admissibility - there is a reference to "an immediate indication of somebody who has been frightened by a situation" - but the emphasis is indeed upon the relevance of the conversation to state of mind rather than to the truth or otherwise of the contents.
21. In those circumstances, it seems to us that it was particularly incumbent upon the learned judge to direct the jury as to the potential relevance or dual relevance of the conversation; that is to say, with regard to the truth of the contents, or secondly, with regard to the direct evidence which the tape-recording contained of the state of mind of the complainant, and to point out that distinction to the jury so that they could assess the weight of that evidence on either or both of those two bases.
22. It seems to us that it is unnecessary to decide whether or not the learned judge's ruling as to admissibility was formally correct. We would say, however, that the evidence which emerged that the conversation was made fifteen minutes later and after two conversations with other persons - one of whom had urged the complainant to telephone the police - must cast some doubt upon the correctness of the ruling that the conversation was within the scope of the rule.
23. However, it is unnecessary to decide that matter because, in our view, the summing-up certainly was defective, both in the respect already described and also by failing to refer, in the context of the res gestae rule itself, to those factors (that is to say, the intervening conversations as well as the passage of time) with their possible relevance to the question of concoction, distortion, or, we would add, exaggeration in the course of the summing-up.
24. Mr Lewis has submitted that, notwithstanding any failure or shortcoming in the learned judge's direction, the conviction should nevertheless be regarded as safe. That is not a submission which we can accept. This undoubtedly was a significant piece of evidence. Even if it was correctly admitted, there was a failure to give the jury appropriate directions with regard to it. In the circumstances, we cannot but regard the conviction as unsafe. The conviction and the sentence therefore will be quashed.