B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE DOUGLAS BROWN
and
MR JUSTICE ASTILL
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REGINA
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| | Joel Jason Gordon
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Ms Anna Worrall QC & Paul Hyam Esq (instructed for the Appellant)
Howard Bentham Esq, QC (instructed for the Respondent)
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
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Lord Justice Henry:
- This is the judgment of the Court. On 31st March 2000 in the Crown Court at Manchester before Mr Justice Penry-Davey, the appellant, on a retrial ordered by this Court, was convicted of murder and sentenced to life imprisonment.
- He now appeals against conviction on the retrial with the leave of the Single Judge. He had originally been convicted with another young man, Christian Brewer, who was acquitted on the retrial.
- The murder was committed on 17 May 1997. It was one of sickening violence. The victim was a young man called Craig Pearce. He was killed at night in a public park by multiple stab wounds inflicted by three youths who were seen running away from the scene, but who were never identified. One knife was found. More than one knife might have been used.
- The Crown’s case was that the background to the case was drug-dealing, and they wished to suggest, but could not prove, that the appellant was a drug-dealer, and that the murder was part of a turf-war. That was the most obvious motive. But the judge ruled that the prejudicial effect of such a motive would exceed its probative value, and consequently ordered that the Crown could not assert that the motive was drug dealing. Consequently, motive was not (or should not have been) an issue at this trial.
- The conviction of both the appellant and Brewer at the first trial (when the appellant was 18) and of the appellant at re-trial was most likely brought about by the evidence of one Christopher Maloney, who was 16 at the time of Pearce’s murder and acquainted with both defendants. On 1st July 1997, the appellant was arrested for murder and charged the next day. On 7th July Maloney was to tell the police that he had no information for them about Pearce’s murder. However, on 13th July (as both juries knew) he himself was arrested for armed robbery and shortly thereafter on 25th July 1997 was to give a witness statement to the police implicating Gordon in the murder. Then, a month later (21st August 1997) he gave them a like witness statement implicating Brewer. He said that each man had separately confessed to him. He repeated that evidence from the witness box. Maloney’s evidence at the first trial must have played a significant part in the conviction of both defendants. It is common ground that at Maloney’s trial for armed robbery he was leniently sentenced because of the assistance he had given in procuring the convictions of the appellants at that trial.
- Six months later the appellant’s first appeal against conviction was allowed; the retrial took place eight months later. Maloney gave evidence again, and this time Brewer was acquitted but the appellant was convicted. At the retrial, the only evidence against Brewer was his confession to Maloney. He gave evidence himself, and called evidence in support of his alibi. No forensic evidence linked him to the murder site. In relation to Gordon, in addition to his confession, the evidence against him was DNA evidence from his blood smeared on Pearce’s clothes, which placed Gordon at the scene of the crime (as was admitted), but did not necessarily make him the murderer, as the injuries could have been sustained either in attack or defence. The knife found was broken, as was consistent with striking a bone. Paint on the handle of the knife identified it as from a house (Mrs Dixon’s) where a youth called “Joel) (the appellant’s name) had visited her baby-sitters. She could not say who had taken the knife, or when. There was no evidence linking Gordon with its disappearance. Gordon did not give evidence, and the jury were properly directed as to the circumstances in which they could hold that failure against him. But counsel for the Crown accepted before us that he would have been in difficulties on a submission of no case to answer at the close of the prosecution cases without the evidence given by Maloney of the confession.
- Maloney was 19 when called to the witness box in the second trial. He was asked some preliminary questions, in which he seemingly volunteered that he had had a fight with the murder victim soon after having met him (that is to say three years earlier), when Pearce hit him with a wing mirror. He was then asked if he had had conversation with anyone about Craig Pearce’s death. He said that he knew that he had had a conversation in his bedroom with the appellant Gordon roughly one to three weeks after the killing when the appellant was drunk, but he said he could not remember what he said:
“I could not tell you what Joel Gordon had said to me.” (Transcript IV - “TIV”, page 4D)
He was then asked similar questions about Brewer, and again, having filled in the basic details, said he could not remember what Brewer had said about Pearce’s death either. He said:
“You are asking me to tell you what was said and I cannot remember.” (TIV, 5B)
Everything up to this point took place in the presence of the jury. The Crown asked for the jury and witness to withdraw, in order that they could apply to have the witness deemed hostile.
- The first ground of appeal is based, with the emphatic support of the Single Judge, on an alleged irregularity:
“1) The learned judge erred in permitting the Crown to embark on a procedure which had the effect of treating the witness Maloney as a hostile witness in the absence of any such application to have him declared as such.”
The section 31 judge in giving leave on this ground said:
“The procedure adopted whereby prosecuting counsel both read the statement of Maloney to him and asked him questions about it in the absence of the jury was quite extraordinary and merits the Full Court’s attention.”
- We continue the account of Maloney’s evidence from the point reached in paragraph 8 above. At this point, (TIV, 5E) in the absence of both the witness and the jury, Mr Bentham QC, counsel for the Crown, applied to treat Maloney as a hostile witness, on the basis that the witness was not “... desirous of telling the truth ...” (see Archbold 2000 at paragraph 8-95, quoted from Article 147 of Stephen’s Digest):
“If a witness appears to the judge to be hostile to the party calling him, that is to say not desirous of telling the truth to the Court at the instance of the party calling him, the judge may in his discretion permit his examination by such party to be conducted in the manner of a cross-examination to the extent which a judge considers necessary for the purpose of doing justice.”)
- Leading counsel for each of the defendants opposed that application. Mr Grieve QC for Gordon objected to the witness’s original statement being put to him “... to prompt his memory ...”. Mr Wright QC for Brewer submitted that the witness Maloney “...ought not therefore to be potentially discredited by the contents of his statement ...”. In reply the Crown retreated, and abandoned their application to treat the witness as hostile, but asked for leave:
“... to put the statement to the witness to see if it will refresh or jog his memory ...” (TIV, 7B)
- The judge acceded to this application and granted leave:
“... to allow you to go on to the next stage; namely to put the witness statement to him in the way you have indicated.” (TIV, 8B)
That way was to refresh the witness’s memory by asking him to read to himself an indicated paragraph of his witness statement, and then to ask him whether that was what he had then said (and possibly, though this was not then clarified, whether that was true). On this basis, the jury would not hear what the witness statement said.
- The judge gave his reasons:
“This is a situation where [if] you have a witness in the witness-box whose evidence is central to the case and he has expressed his recollection of other matters and as soon as you have directed his attention to the matters that are central to the case, he has expressed no recollection of the conversations that you asked him [about] it seems to me that on the basis of the case of Honeyghan and Sayles [[1999] CrimLR 221] that this is a situation where I can properly in the exercise of my discretion and, should do so to take into account all the circumstances, to allow you to go on to the next stage, namely to put the witness statement to him in the way that you have indicated. Accordingly I give you permission to do that.”
- At this time, the Crown had indicated that what they had in mind when making the application was a memory refreshing exercise (as recommended in Archbold 2000 at 8-94 and R -v- Maw [1994] CrimLR 841, CA). It is clear from the transcript that they proposed to conduct this exercise in the presence of the jury, but would not be reading out the witness statements (or parts from them) aloud in the presence of the jury (TIV, 7D):
“I don’t think ... that this is a proper case for me to do what is sometimes done, read the statement out and say, ‘You said that before, is that right or not’ because the jury hear the thrust of the evidence.”
Instead, counsel would simply be referring to passages in a document which the jury would not have. And from what the judge said at 7F to 8B, and the orders he made, that he was not satisfied on what he had heard up till then that the witness was hostile, and that he was content that the witness’s statement would be put to him “... in the way that you have indicated ...” that is to say in the presence of the jury but without reading aloud the passages to which he witness was being referred.
- When the jury returned to court, Maloney returned to the witness stand and confirmed his signature on his two witness statements (one dealing with Gordon and the other with Brewer). Then, in answer to what were plainly intended to be formal questions he indicated that he was dyslexic, that he could not read (“I cannot read …. I cannot read it too quickly, I’m dyslexic”). He said that before the jury retired. He had made a similar claim at the first trial.
- With the agreement of the judge and the appellants, and in the absence of the jury, Mr Bentham continued “... to see how far [he] could go” (TIV 10B). The witness denied having been given his witness statements that morning, reiterating that he could not read them. Crown counsel then sought the judge’s permission to move to the next stage, namely the use of the witness statements of July and August 1997 to refresh his memory. The statement of 25 July 1997 related to Gordon’s confession. Mr Grieve challenged the witness’s ability to sign his statement, if he could not read what it said but Maloney made clear that he had been able to sign his witness statements because his foster-mother had read the documents he was signing to him sentence by sentence. When that was established, Crown counsel sought and the judge, without opposition from the defence, granted leave to proceed to “the next stage” (TIV, 11A).
- For this next stage, counsel for the Crown was permitted by the judge, in the absence of the jury,
“... to continue to examine this witness in chief ... I don’t give leave to cross-examine at this stage.” (TIV, 13 B-C)
The form of his examination-in-chief took was as follows. Counsel broke that portion of the witness statement dealing with Gordon’s confession into seven parts, each roughly between six and ten lines long. All in all, the parts covered about two pages of transcript. Counsel read out each part, and typically asked an open question: “Do you remember saying that?” (ie to the police), to be followed up as necessary by equally open questions for clarification, such as “Is that [ie the assertion made in the statement] right?”. Counsel for the defendants never objected to any of those questions as being either cross-examination or leading, and nor did the judge. Mr Bentham optimistically applied to cross-examine the witness, but, as Mr Grieve pointed out, the witness was clearly not hostile – “… he’s now given answers which adopt the witness statement”. Mr Wright reserved his position. The judge then gave leave to Mr Bentham to continue to examine the witness, but this time in the presence of the jury. He made it plain that he was not granting leave to Mr Bentham to cross-examine the witness. That is to say, Mr Bentham was to continue to examine in chief.
- When the jury returned to court, Maloney confirmed that he had had an opportunity to refresh his memory from his witness statement. He was then asked directly what Gordon had said to him in his bedroom about the death of Pearce. His answer was:
“He said ... I don’t want to say what he said.”
At this, the judge said:
“Mr Maloney, if counsel ask you a question that is in any way improper, I shall intervene. If I don’t intervene and you are asked a question, you are obliged to answer it. Ask the question again, Mr Bentham.”
With that firm and proper direction, the witness’s reluctance was overcome.
- After that, the examination of the witness continued uneventfully (ie with all questions being answered without the need or occasion for the judge to intervene in that part of the examination concerning Gordon). Then the questions switched to the case of Brewer. Mr Bentham asked him what Brewer had said in the prison gymnasium, and Maloney said that he could not remember, and that he could not read. Mr Wright then asked for the witness and jury to leave. Mr Wright was anxious that the criteria for permission of refreshment of memory be applied, on the basis that if, for instance, he declined to read his witness statement before he gave his evidence, the criteria would not be satisfied. However, the point never arose because, on the court reconvening, the witness made it clear that he could remember his conversation with Brewer, and gave his evidence without having to have his memory refreshed by the document itself. So Mr Wright’s submissions to the judge became academic.
- We turn now to the submissions made on behalf of the appellant. The case in its essentials in this: Maloney is a man of bad character. When he assisted the police by making his witness statement relevant to these proceedings, he had much to gain from co-operation with the authorities. In evidence he admitted lying. His gain from the assistance he gave the authorities included re-housing, and what would have been a medium length sentence for robbery reduced to a combination order. As the confession was the only evidence against Gordon other than his blood being smeared on Pearce’s jacket, clearly it was important evidence. All of those matters were properly dealt with in the judge’s summing-up, where the jury were twice directed that they should approach the whole of Maloney’s evidence with great care and caution, and be sure that it was truthful evidence before they relied on it. It is clear that the jury preferred the evidence of Maloney to the case put forward by Gordon, who chose not to give evidence, and who had the potential difficulty of explaining how his blood came to be smeared on the dead man’s jacket.
- The procedure here used comes under strong criticism from both the appellant and the section 31 judge who had the transcript of Maloney’s evidence before him.
- We deal with the first ground of appeal, which is set out in paragraph 8 of this judgment. We look at the criticisms of the procedure set out in paragraph 14 of the appellant’s skeleton argument of 9th April 2001 and of the Perfected Grounds of Appeal dated 14th July 2000. But before we examine the detail, certain general points should be made. First, all questions relating to the evidential treatment of allegedly hostile witnesses are for the discretion of the judge. In this, and most such cases, the decisions of the judge as to whether to deem a witness hostile depends on a combination of the testimony, demeanour and responsiveness of the witness, so it is a difficult task for challenge on appeal (see R -v- Manning [1968] Crim LR 675).
- Second, the linked question of the need for and the method of refreshment of memory is also a matter for the exercise of judicial discretion (see R -v- South Ribble Magistrates (ex parte Cochrane) [1996] 2 Cr App R 544. The judge was faced with a dilemma when Maloney told him of his dyslexia and reading difficulties. The judge, with his great experience of crime, will have been well aware of the normal procedure for refreshing memory. That procedure could not be followed if the judge had no confidence that the witness could, given time and quiet place himself alone, read and understand his witness statement. Nor is it easy to envisage who could in practice replicate the role of Maloney’s foster mother in the first trial when she was given leave to read to him his witness statement, out of court. A further difficulty arises from the fact that the witness is on his oath giving evidence in circumstances where he could not be spoken to about his evidence without leave of the court. And the judge might doubt the wisdom both of any “independent third party” reading his statement to him, whether in court or out of court. Crown counsel doing it in court under the control of the judge could reasonably be preferred to any other option.
- Turning, as in the circumstances we feel we should, to the section 31 judge, he expressed the view that it was “quite extraordinary” that Crown counsel should both read Maloney’s statement to him and question him about it. The transcript shows that what counsel for the Crown envisaged was that they would, with the leave of the judge, examine Maloney in chief, in the presence of the jury, but that the jury would not know the content of the paragraphs to which counsel was referring the witness. But the question of dyslexia raised the question as to who could tell Maloney what his witness statement said. The judge presumably thought that, in the absence of any obvious independent third party, that role was best performed by counsel in open court, limited to examination-in-chief and controlled by the judge. We believe that to be within the wide ambit of the judge’s discretion, and do not find it extraordinary.
- The judge, in giving his ruling on the situation based himself on the case of R -v- Honeyghan and Sayles (above) where the transcript reads:
“In our view, the judge has in each case a discretion to allow the witness to be cross-examined about a previous statement. It seems to us that in exercising that discretion in the interests of justice the judge will have to weight the likelihood of the reluctant or amnesiac witness changing his stance and affirming on oath the truth of his statement and on the other the fact that if he does not do so the statements put to him cannot be evidence on which the jury can act. The nature of the statements may be such that irredeemable prejudice is caused to an accused but the statements have no evidential weight.”
- As to Honeyghan, Penry-Davey J said:
“It seems to me that on the basis of the case of Honeyghan where I can properly exercise my discretion ... to allow you to go on to the next stage, namely to put the witness statements to him, in the way that you have indicated.”
The “way indicated”, as we have seen, was by Crown counsel asking for leave to put the statement in a way such that the witness is referred to its content, but the jury is ignorant of it. That is what then happened in the absence of the jury after which the judge ordered that the witness be questioned (but not cross-examined) as to the witness statements in the presence of the jury. Then the witness admitted he could not read because of dyslexia, the jury left court, and Mr Bentham sought and obtained permission to put his witness statement to him in examination-in-chief.
- It follows from what we have said that we do not accept that there are any fixed and immutable rules which must be followed before a witness may refresh his memory by a document prepared by him when his memory was clearer. There is a broad fact-sensitive discretion in the judge, for him to exercise in the interests of fairness and justice. We do not accept that if a witness refuses an invitation to refresh his memory he must be treated as hostile.
- The appellant’s case is that Mr Justice Penry-Davey allowed the Crown to use a procedure which had the effect of treating Maloney as hostile in the absence of the jury when he was never so declared. The facts are these: Crown counsel did twice apply for Maloney to be deemed hostile. The judge did not accede to either application. He, and not this Court, was in the best position to judge, and he was acting within the broad ambit of his discretion in refusing. The judge, at the same time, forbade Crown counsel from cross-examining the witness, making it quite clear that he was only giving leave for examination-in-chief. The questions asked by Mr Bentham were not questions expressed as a challenge to the witness, nor were they even leading questions. Those questions were quite suitable for examination-in-chief. They related solely to Maloney’s witness statements and how they dealt with the alleged confessions. First, Maloney was asked whether he had said to the police what his witness statement recorded, and second whether what he had said was true. The questions were entirely open questions - they were not questions which put the answer into the witness’s mouth. The proof of the pudding lies in the eating. This case was tried by an experienced and strong criminal judge. He laid down the procedure to be followed. His order did not permit cross-examination. His order only permitted examination-in-chief. Not only would he had disallowed cross-examination or anything outside the ambit of examination-in-chief, but experienced leading counsel for the defendants would have objected to any questions which were not proper questions for examination-in-chief; no such challenge was made.
- At paragraph 14a of the appellant’s skeleton argument, it is suggested that the prosecution “... managed to prompt the witness to change his evidence” from ignorance of the murder to evidence that the appellant had confessed to having stabbed the deceased in the back. This relates to the chronology set out in paragraph 5 hereof, where the background facts are set out. On the 7th July he declined to inform on Gordon, and on the 25th he did. There was no evidence from which a change of evidence because of police prompting could, in our judgment, be safely inferred. The jury clearly believed Maloney, and there is no basic evidence of police impropriety put before us. The jury had already had well in mind the caution with which they should approach Maloney’s evidence, and they clearly accepted it.
- We turn to the second ground of appeal, that:
“The learned judge erred in law by failing to discharge the jury following an improper cross-examination by the Crown of the co-defendant Brewer.”
This concerns the judge’s ruling referred to in paragraph 4 of this judgment.
- The section 31 judge’s reason for granting leave is summarised by the Criminal Appeal Office Summary as follows: whilst counsel is not restricted in cross-examination to asking questions based upon evidence available to him, the manner in which this assertion was made might have led the jury into believing that there had been a “... falling out between Gordon and Craig Pearce” and that this was within the personal knowledge of prosecuting counsel. How else could the question be framed in that manner?
- The background to this is the judge’s ruling (see paragraph 4 above) that the Crown could not assert that the motive for the killing was connected with drug dealing. The allegation, as put by Mr Bentham to Brewer in cross-examination, was that there had been, to Brewer’s knowledge, a major falling-out between Gordon and/or “his gang” and Pearce over money. That allegation was met with a flat denial by Brewer, where matters were left. Mr Grieve was at first (on 27th March) realistically asking for this to be dealt with by way of direction from the judge, rather than by discharge of the jury. The judge dealt directly and fairly with this. He agreed to give such a direction and on two occasions (the second as a result of a direct request from Mr Grieve) he emphasised that there was simply no evidence as to motive, and the jury must not speculate in the absence of evidence.
- However, the next day Mr Grieve renewed his application on the basis that, on second thoughts, the appellant’s case was that the jury should be discharged. The judge rejected this application. He re-emphasised that he was going to direct the jury to disregard the allegations (as he did) on the basis that there was no evidence to sustain them. He directed the prosecution to take that approach if they were to refer to the matter in their closing remarks.
- The trial judge is in the best position to assess the prejudicial effect, if any, of the incident that provoked the application. The judge was acting well within the wide ambit of discretion given to him in dealing with this matter by way of firm and clear direction, and there is nothing in what he did, either considered on its own or cumulatively, that in any way threatens the safety of this conviction.
- For those reasons this appeal will be dismissed.
